author: VANMETER, Judge. MILLER, Senior Judge,

text:
    Estate of Andy BOLEN; Barbara Porter, Appellants, v. Jackie BOLEN, Appellee.
    No. 2004-CA-000382-MR.
    Court of Appeals of Kentucky.
    July 22, 2005.

      Martin L. Osborne Prestonsburg, KY, for appellant.
    Adam P. Collins Hindman, KY, for ap-pellee.
    Before HENRY and VANMETER, Judges; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes 21.580.

   OPINION

VANMETER, Judge.

Appellants, Barbara Porter and the Estate of Andy Bolen, bring this appeal from an August 8, 2003, judgment of the Knott Circuit Court. We reverse and remand.

In 1994, appellee Jackie Bolen (Jackie) conveyed a plot of land in Knott County, upon which four rental trailers were located, to his sister, Mabel Bolen (Mabel); her husband, Andy Bolen (Andy); and their daughter, Barbara Porter (Barbara). The conveyance was made “with rights of sur-vivorship.”

The transaction was evidenced by three documents prepared by a layperson and dated April 5, 1994. First there was a deed of conveyance, signed by Jackie only, stating a consideration of $25,000 for the land and trailers. Next there was a “CONSIDERATION STATEMENT,” signed by all parties, also reflecting a value of $25,000.00 for the land and trailers. Finally, there was an installment “Sale Contract Agreement,” signed by all parties, providing for the sale of the land and trailers for $55,000. The agreement specifically provided as follows:

To Whom This May Concern:
This sale contract agreement is between Jack Bolen, Hindman, Kentucky and Andy and Mabel Bolen — Barbara A. Porter 2330 St. Lucie Blvd., Fort Pierce, Florida.
This sale agreement is in the total amount of $55,000.00, payable including principal and interest at $500.00 per month or $6,000.00 per year. This contract begins on June 5,1994 and ends on August 5, 2003.
The payments are to be made payable to Jack Bolen and if something should happen that he would decease then the remaining amount would be paid the same way to Phyllis Robinson until the balance is paid; as long as they are still living together at the time of his Jack Bolen’s death. If Phyllis Robinson is not with Jack Bolen at that time, then this sale agreement is paid in full and no remaining balance would be due to any of his descendants.
If at any time the Bolen’s or Ms. Porter decided to sale [sic] then Jack Bolen would have first opposition [sic] of refusal for purchase.
This sale agreement of contract is on the property located beside the Carrie, Kentucky Post Office, recorded in the Knott County Court House, Hindman, Kentucky in record book number 169 and page number 587 dated 5/5/94 [sic].
This contract is signed and agreed upon this 5 day of April 1994.

The deed and the consideration statement were recorded on April 5, 1994, although the sale contract agreement was not recorded until August 27, 1997. While the documents at first glance appear somewhat contradictory, it is apparent from the installment sale contract agreement that the principal amount was $25,000, while the interest payable over the nine year and two month period of the loan totaled $30,000, with the principal and interest payable in equal monthly installments of $500.

Neither the deed nor the installment sale contract agreement expressly retained a lien upon the property, or contained any provision for default. In fact, neither document contained any reference to the consequences of failing to pay the monthly installments.

On May 1, 1995, Barbara filed a Chapter 7 bankruptcy petition and listed Jackie as a secured creditor. The bankruptcy court treated the Knott County transaction as a secured transaction and proceeded accordingly. Upon reviewing Jackie’s claim against Barbara’s undivided one-third sur-vivorship interest in the Kentucky property, the trustee apparently found that the asset was of no benefit to the bankrupt estate and entered an order of abandonment. This removed the Kentucky property from the impact of bankruptcy and permitted Jackie, in the event of default, to proceed against the property in rem. The bankruptcy court ultimately discharged Barbara from all personal liability.

Mabel died on April 5, 1999. Andy died on October 7, 2001, after commencement of this action. Barbara therefore was left as the sole owner of the land and trailers by operation of the survivorship deed.

As the payments had fallen into default, Jackie filed an action in the Knott Circuit Court on February 17, 2000, seeking a judgment for the balance due. After the action was amended to assert the equitable claim of reconveyance, the circuit court acted within its equitable power and ordered a reconveyance. Barbara brings this appeal.

Barbara argues that the trial court lacked equitable jurisdiction to order re-conveyance of the property. As support, she raises the doctrine of merger, Jackie’s failure to retain a lien, and her discharge in bankruptcy from liability for the debt.

More specifically, Barbara claims that the sale contract agreement merged into the deed of conveyance. While it is well established that prior negotiations will merge into a deed of conveyance, here the trial court made the factual finding that the sale contract agreement was not executed prior to the deed of conveyance, and that the parties’ mutual understanding was that the purchase price was to be paid over nine years and two months. The evidence in the record supports the trial court’s finding. Monthly payments provided in the agreement did not commence until two months after the documents were executed and the deed and consideration statement were recorded. Further, the agreement, which refers to the book and page at which the deed was recorded, was not itself recorded until some years after the deed. Clearly, the documents should be interpreted together in determining the parties’ intentions. We therefore find no merit in Barbara’s claim of merger.

Next, it is true, of course, that because of her discharge in bankruptcy, Barbara can have no personal liability. However, the trial court clearly erred by concluding that Jackie “was not secured, as he did not file any lien or other security interest with the Knott County Court Clerk’s Office.” Long-standing Kentucky case law is that as between vendor and vendee, a vendor has a hen on granted premises for the unpaid purchase money even if no lien was expressly reserved in the deed. So, as regards Barbara, who was a party to the deed and the sales contract, Jackie retained a hen on the property by operation of law for the unpaid purchase price.

Barbara argues that Jackie admitted at the hearing that he had no lien on the property. Jackie’s testimony on this issue, however, was limited to the following exchange between Jackie and Barbara’s counsel:

Q: All right. Did they — did Barbara or her father, Andy, or her mother, Mabel, sign a mortgage?
A: No, no mortgage.
Q: And in the deed that I showed you, Exhibit Number 2, is there any language in there saying “I retain a lien on this property?”
A: No, no lien on the property.
Q: All right. And I believe I would be correct to say there is not a lien on the title to those trailers either, is that correct?
A: No, they ain’t no lien on it. I just ain’t been paid for it. I worked hard for that.

As recognized by the trial court, this testimony goes to the issue of whether an express reservation of a lien exists of record in the Knott County Clerk’s office, either on the face of the deed, on a mortgage, or on a certificate of title. However, the testimony cannot be characterized as constituting a judicial admission that the transaction resulted in no lien on the property. As previously noted, the vendor’s hen in favor of Jackie with respect to the purchasers’ interests in the property arose by operation of law, notwithstanding that the deed appeared absolute on its face and no mortgage was signed.

The trial court’s second error was its decision to order reconveyance of the property to Jackie, free and clear of Barbara’s equitable claim for the portion of the purchase price which her parents and/or she paid. Under Sebastian v. Floyd, the seller’s remedy upon default in payment of the purchase price is a foreclosure conducted under the auspices of KRS Chapter 426. Even if Barbara has no personal liability as regards the unpaid installments of the purchase price, the property is still subject to the vendor’s lien. As stated by the Kentucky Supreme Court in Sebastian:

There is no practical distinction between the land sale contract and a purchase money mortgage, in which the seller conveys legal title to the buyer but retains a lien on the property to secure payment. The significant feature of each device is the seller’s financing the buyer’s purchase of the property, using the property as collateral for the loan.
Where the purchaser of property has given a mortgage and subsequently defaults on his payments, his entire interest in the property is not forfeited. The mortgagor has the right to redeem the property by paying the full debt plus interest and expenses incurred by the creditor due to default. In order to cut off the mortgagor’s right to redeem, the mortgagee must request a court to sell the property at public auction. See Lewis, Reeves, How the Doctrine of Equitable Conversion Affects Land Sale Contract Forfeitures, 8 Real Estate Law Journal 249, 253 (1974). See also KRS 426.005, 426.525. From the proceeds of the sale, the mortgagee recovers the amount owed him on the mortgage, as well as the expenses of bringing suit; the mortgagor is entitled to the balance, if any.

While this case technically involves neither a land sale contract nor a deed with a mortgage, no reason exists for treating the instruments herein any differently than those types of instruments in which a seller’s remedy is a foreclosure under KRS Chapter 426.

For the foregoing reasons, the judgment of the Knott Circuit Court is reversed, and this matter is remanded for proceedings consistent with this opinion.

HENRY, Judge, concurs.

MILLER, Senior Judge, dissents and files separate opinion.

MILLER, Senior Judge,

dissenting:

It seems to me the question before us upon review of the chancellor’s order of reconveyance is not what may be done but what should be done. When we review the act of a chancellor, we stand in his shoes, and review the record for ourselves, de novo. Stephenson v. Burton, 246 S.W.2d 999, 1000 (Ky.1951). It is true, however, that as to findings of fact we give deference under Kentucky Rules of Civil Procedure (CR) 52.01, and such will not be disturbed unless clearly erroneous. Price v. Pike, 458 S.W.2d 440, 442 (Ky.1970).

The record is clear that Jackie retained no hen on the property. As such, the chancellor’s findings of fact on that issue are to be given deference. Jackie initially sought payment of the balance due; then sought the equitable relief of reconveyance. Without a lien and no adequate remedy at law, I am of the opinion that the chancellor acted correctly in ordering the equitable remedy of reconveyance. The chancellor was only remiss in not recognizing Barbara’s equity in the property, if any she has. I would remand, therefore, only for consideration of her equity.

This is a family matter which can best be adjudicated by the wisdom of the chancellor in assigning the respective equities in the property. The sale and transfer of the property was a less than arm’s-length transaction, with little or no negotiation as to the terms and conditions of the transfer. It was a family matter designed to extricate a sibling from an unhappy situation. Jackie required no down payment, and because of rental income from the trailers the transaction was essentially self-liquidating.

It is undisputed that Jackie’s sister, Mabel, called him at three o’clock one morning asking “are you going to let me have these trailers so I won’t have to die down here in this hole in Florida ... you know you ain’t going to let me die down here in this hole.” Touched by her emotional distress, Jackie returned her call within an hour and advised her that she could have the trailer-park for $55,000.00, “in order to get her out of Florida.” Jackie asked Mabel how much she could pay, and he accepted her offer of $500.00 by the fifth of every month, which amount was paid by Mabel and her husband Andy for more than three years.

This is a sad and unfortunate end to the natural devotion of an uncle to his sister and her family. In a time of need he came to their aid, conveying his small trailer-park to them, thus providing them with a meager income and a home. Following the unfortunate circumstances of two deaths and a bankruptcy, Jackie was forced to seek the equitable relief of a reconveyance of the property. In defense, Jackie’s niece Barbara (the sole survivor of the original transaction) claimed entitlement to the property with no obligation to complete payment by reason of her bankruptcy. Neither party sought the ill-afforded expense of a judicial sale of the trailer-park which would only result in a casting of the property outside the Bolen family.

There is little doubt in my mind that the parties entered into this vague and unartful transaction without aid of counsel in an effort to save money. Had they employed counsel, the transaction would doubtless have been handled in one of two ways. First, the purchasers would have executed a series of promissory notes. Jackie would have retained a purchase money lien in the deed of conveyance to secure payment of same. Or, a second method would have been for a sale on an “installment land sales contract” with Jackie retaining legal title pending payment of the installments. In either case, the purchaser would have acquired an equity in accordance with payments made.

Under such circumstances, the legal remedy for Barbara’s default would have been a breach of contract action by Jackie and potentially the forced sale as concluded by the majority opinion that would result in both parties getting credit for their respective interests. The parties’ actions in this transaction did not follow either of the above alternative legal routes. With no legal remedy such as that above, it is a classic case for equity to intervene.

In concluding that an adequate legal remedy exists, foreclosing an equitable remedy, the majority opinion leaves no option to Jackie and Barbara but a judicial sale of the property, something neither has sought.

It will serve no useful purpose to either of these parties to sell the property and divide the equities, where no lien existed and the parties did not seek enforcement of the default through judicial sale. The equities should be determined without sale. It seems to me sale should be avoided if at all possible.

      . The Estate of Andy Bolen is named a party to this appeal. We note that an estate is not a legal entity, and no representative of the es-íate was named in the notice of appeal. See Turner v. Seale, 298 Ky. 403, 182 S.W.2d 953 (1944). We consider this immaterial inasmuch as Barbara Porter succeeded to the sole ownership of the property in question under a survivorship deed. The Estate of Andy Bolen is not implicated in these proceedings.

      . Presumably this separate document was intended to comply with KRS 382.135 (requiring a deed to contain a statement of the full consideration and the signatures of all parties).

      . As this matter is to be remanded to the Knott Circuit Court, it would seem a simple matter by means of an amortization schedule to calculate the principal retired by Andy and Mabel Bolen prior to the default.

      . 11 U.S.C.A. § 506 (West 2004).

      . Cf. In re Keller, 229 B.R. 900, 903 (Bankr. S.D.Ohio 1998)(upon abandonment of real property, creditor could take all proper in rem
        actions relating to the property in state court, including prosecution of a foreclosure action).

      . 11 U.S.C.A. § 524(a)(West 2004).

      . CR 18.01.

      . See Borden v. Litchford, 619 S.W.2d 715 (Ky.App.1981).

      . See Swinney v. Davidson, 292 Ky. 110, 113, 166 S.W.2d 41, 42 (1942).

      . See, e.g., Cawood v. Cawood's Adm'x, 285 Ky. 201, 147 S.W.2d 88, 92 (1940); Commonwealth Life Ins. Co. v. Eline, 274 Ky. 539, 119 S.W.2d 637, 639 (1938); Starbird v. Blair, 227 Ky. 258, 12 S.W.2d 693, 696 (1928); Brown v. Ferrell, 83 Ky. 417, 419 (1885). While not necessary to our view of this case, authority exists that the filing of the sales contract showing unpaid consideration, prior to any conveyance by the vendee, serves as notice to third parties of the vendor’s lien. Bailey v. Southern Ry. Co., 112 Ky. 424, 429, 60 S.W. 631, 633 (1901).

      . 585 S.W.2d 381 (Ky.1979).

      . 585 S.W.2d at 383.

      . See KRS 426.005(1) (“[i]n an action to enforce a mortgage or lien, judgment may be rendered for the sale of the property While the circuit court has broad powers in equity to fashion a remedy out of general considerations of right and justice as applied to the relation of the parties and the circumstances of their dealings, see Gabbard v. Watkins, 280 Ky. 257, 133 S.W.2d 54 (Ky.1939), a court should not resort to equitable remedies when adequate legal remedies are available. See Wunderlich v. Scott, 242 Ky. 481, 486, 46 S.W.2d 753, 755 (1932) (court stating that "so long as the law provides an adequate remedy, equity has no right to interfere. It must therefore appear that the legal remedy is inadequate before a court of equity will afford relief ... ”).


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    Donnie NEWSOME, Appellant, v. Mike HALL, Appellee.
    No. 2005-CA-000993-MR.
    Court of Appeals of Kentucky.
    July 22, 2005.

      Steven S. Reed, J. Kent Wicker, Louisville, KY, for Appellant.
    Michael S. Endicott, Paintsville, KY, for Appellee.
    Before HENRY, JOHNSON, and MINTON, Judges.
   OPINION

JOHNSON, Judge.

Donnie Newsome has appealed a judgment of the Knott Circuit Court ordering his removal from the office of Judge Executive for Knott County. The removal was ordered as a result of an election contest filed in 2004 alleging campaign finance law violations by Newsome in the 2002 Democratic Primary. The contest was filed by appellee Mike Hall who opposed Newsome in that primary.

On appeal, Newsome alleges that the trial court erred in considering an election contest filed after the ten days allowed by KRS 120.055, that the contest was precluded by Hall’s own violations of the corrupt practices provisions set out in KRS 120.015, and that the illegal campaign contribution did not support the order of removal. Because we find that the contest under KRS 120.055 had to have been filed within ten days of the date of the election, we reverse.

In 2002, Newsome successfully sought reelection to the office of Judge Executive for Knott County, an office to which he had first been elected in 1998. In 2003, Newsome was convicted of federal crimes involving vote buying during the 1998 election campaign. Those convictions are still on appeal, but Newsome has already served a federal prison term for the convictions.

While in federal custody, Newsome began cooperating with federal authorities and eventually testified at a federal criminal trial that during his 2002 Democratic primary, he had received contributions of $8,000 in cash from a party and that those contributions were falsely reported as having come from Newsome himself. These acts would appear to be clear violations of KRS 121.150(3) and (6).

In the 2002 primary, Newsome was opposed by appellee Mike Hall. Newsome won the bitterly contested race by 520 votes. Newsome then easily defeated an independent candidate in the November general election. After learning of New-some’s federal court testimony which occurred on September 2, 2004, Hall filed a petition to contest the results of the 2002 primary on September 27, 2004, in Knott Circuit Court.

Newsome moved the circuit court to dismiss the election contest on the ground that it was untimely since it was not filed within ten days of the election as required by KRS 120.055. By interlocutory order entered January 11, 2005, the trial court denied the motion to dismiss. The trial court ruled that the allegations of concealed fraud called for the application of the five-year limitation of KRS 413.120(12) for actions “for relief or damages on the ground of fraud or mistake.” The trial court reasoned that application of the ten-day limitation in KRS 120.055 would leave Hall without a remedy for Newsome’s fraud.

The problem with the trial court’s analysis is that Hall’s petition was filed as an election contest under KRS 120.055. The courts of this Commonwealth have repeatedly held that the courts have no inherent authority to try election matters. That authority must be expressly given by the legislature. Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933); Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828 (1908); Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 1985). KRS 120.055 permits an election contest to be filed in the circuit court but requires that the contest be filed within ten days. The statute even prohibits either party from adding new grounds for the contest or making a ground more specific after the time allowed for the original pleading has run. There is no provision allowing the court to apply any other time limitation no matter what the ground of the contest. KRS 413.120(12) has no application in an election contest.

Hall does not assert and cannot assert a right to the office on his own behalf. He only seeks to have Newsome removed from office. KRS 121.990(4) would appear to offer the remedy of removal for violations of KRS 121.150 in an action which can be initiated by “any qualified voter” (among others). However, even though the statute was relied on by the trial court in its summary judgment, the application of that statute was never sought by the petitioner and the issues inherent in that statute were never presented to the trial court. For example, the trial court was never given the opportunity to address what is meant in KRS 121.990(4) by the phrase “upon a final judicial determination of guilt” or whether such a prior determination must be made as a prerequisite to filing an action for removal under the statute. Since these issues were never argued to the trial court, we do not need to reach them in this appeal.

Accordingly, we hold that the petition filed by Mike Hall was filed beyond the ten-day period permitted by KRS 120.055 and was time-barred. Thus, the circuit court erred in denying the motion to dismiss, and the judgment of the Knott Circuit Court is reversed.

ALL CONCUR.


author: JAMES K. PREWITT, Judge. PHILLIP R. GARRISON, Presiding Judge,

text:
    Donald G. ERICKSON, Petitioner-Respondent, v. Barbara L. BLACKBURN, Respondent-Appellant.
    No. 26128.
    Missouri Court of Appeals, Southern District, Division One.
    June 1, 2005.
    Petition for Rehearing and Transfer Denied June 17, 2005.

      James R. Sharp, Sharp & Bredesen, Springfield, MO, for Appellant.
    Carolyn G. Buschjost, Ronald D. White, Williams, Robinson, White, Rigler & Buschjost, P.C., Rolla, MO, for Respondent.
   JAMES K. PREWITT, Judge.

Barbara L. Blackburn (“Appellant”) appeals a Judgment of Modification filed October 17, 2003, by the Circuit Court of Pulaski County, awarding “primary physical custody” of the minor child of the parties to Donald G. Erickson (“Respondent”).

Facts

Viewed in a light most favorable to the judgment, the facts of the case are as follows. On January 26, 1998, the marriage between Respondent and Appellant was dissolved and an “absolute divorce” granted by the General Court of Justice in Cumberland County, North Carolina. A daughter, Devin Elizabeth Erickson (“Devin”), had been born of the marriage on September 24, 1991. Pursuant to the judgment, the parties were awarded joint custody with Appellant to have “primary physical custody” and Respondent granted “secondary physical custody and reasonable visitation rights.” In addition, Respondent was required to provide $300.00 per month in child support payments.

At the time of the divorce, the couple lived in Fayetteville, North Carolina. Shortly afterward, Respondent, an officer in the United States Army, attended schools at Fort Benning, Georgia, and Fort McClellan, Alabama, and then was stationed in Fort Lewis, Washington. Appellant moved with Devin to South Carolina.

Devin suffers from two medical conditions, a cleft palate, which causes speech problems, and encopresis, an enlarged colon which causes involuntary soiling. While in South Carolina, Devin received treatment at a craniofacial clinic for the speech impediment. Personnel at the clinic suggested that Devin see a counselor to deal with social problems caused by her medical conditions. Counseling was recommended because Devin was extremely resistant to going to school and often tardy or absent. This was because the other children teased her about her speech impediment, as well as her soiling her clothes. In spite of counseling, Devin’s school record continued to suffer. Her third-grade report card indicated that she had five tardies the first quarter, eight the second quarter, eighteen the third quarter, and twenty-three in the last quarter. Her excessive number of tardies and absences affected her grades; indeed, she was at risk of failing math, her first class of the day.

In July, 2001, while Devin was visiting her father for the summer, Appellant moved to Florida where she got a job waiting tables at night. When she brought Devin to Florida in August, Appellant quit that job so Devin “would not suffer,” but then had trouble finding another one. Appellant’s financial situation was very difficult since she received only $300.00 a month in child support, could not find a job in her field, and Devin’s medical conditions necessitated that Appellant miss a lot of work “to take her to doctor’s visits, and school conferences.”

Respondent testified that in mid-September, 2001, Appellant phoned him, said that she could not take care of Devin anymore, and asked him to arrange to have Devin picked up. Appellant testified that she called Respondent and told him about her problems securing employment, but that it was Respondent who felt it would be best for Devin for her to five with her father. It was contested at trial whether there had been an agreement as to when Devin was to return to her mother’s care; Respondent denied that any agreement had been reached while Appellant insisted that they agreed Devin was to be returned immediately following the school year. In any case, Respondent arranged for his sister to meet Appellant halfway, pick Devin up, and take her to Virginia. Respondent was in the midst of a change of station to Fort Leonard Wood, Missouri, so his current wife drove to Virginia to pick up the child and brought her to Missouri.

At the end of May, 2002, Appellant phoned Respondent and indicated that she wanted to buy a plane ticket so that Devin could fly back to Florida to rejoin her. Respondent testified that he told Appellant not to bother because he was filing for custody. This he did on May 13, 2002, in the Circuit Court of Pulaski County, Missouri.

On June 21, 2002, the Circuit Court of Pulaski County heard Respondent’s motion seeking temporary custody of Devin. On the same date, the court entered its order awarding Respondent temporary custody and abating his child support obligation, setting out a visitation schedule for Appellant, and granting Respondent permission to relocate to Fort Drum, New York. A “Judgment and Order of Temporary Custody, Visitation and Relocation” was filed on July 12, 2002, reflecting that''earlier order. Respondent moved to New York in August, 2002, with his current wife and Devin.

While the parties were preparing for trial, Appellant took Devin to two different counselors for a total of four interviews to determine Devin’s wishes as to which parent she preferred to live with. Appellant, through her attorney, hired a social worker in Florida to conduct a home study of Appellant’s house. As part of the study, Devin, along with Appellant and her current husband, were interviewed. In addition, Devin was interviewed alone two more times, with the primary purpose of those interviews to determine Devin’s custodial preference. The social worker testified that he did not believe his questions had any detrimental effects on Devin.

Before trial, Respondent’s unit was deployed to Afghanistan. In mid-August, about a month before trial, Respondent discovered that his unit was to be deployed. He learned of the orders through word of mouth and, since he had received no written orders, he contacted his commander to see how this would impact him and his situation with the upcoming trial. His commander assured him that he would not be “brought forward” until his family situation was settled.

At trial, Respondent testified that, although it was possible he may be deployed after the situation with his family was resolved, his deployment was in no way imminent or even certain. Although his unit had officially been deployed, not all members of the unit were sent. In addition, he had been left in charge of shipping equipment from Fort Drum to Afghanistan, and his commander told him he would not be “going forward” until all the equipment had been shipped. His unit was expected to return to New York in January or February of 2004, so it was altogether possible that he would never need to leave the country.

Respondent testified that he believed that, even in the event of his deployment, it would be in Devin’s best interest to remain in New York with her step-mother and infant half-brother. He believed that it was important that Devin’s life remain stable, keeping the same home, same school, and same friends.

Appellant indicated at trial that she was fearful that Respondent would be deployed and Devin would be in the care of a non-parent. Appellant testified that, even if Respondent were granted custody, she wanted the parenting plan to require that if Respondent were deployed for longer than thirty-one days, Devin would come live with her. Appellant stated she would be willing to wait until the end of a semester for the change in living arrangements but would not wait until the end of the school year. Appellant was concerned that Devin would not be in the care of either of her natural parents, and that that would make her feel seared and uncertain.

On September 15, 2003, a trial was held in Pulaski County Circuit Court before the Honorable John D. Wiggins. The trial court filed its judgment of modification, findings of fact and conclusions of law on October 17, 2003. Appellant contends that the court’s decisions were against the weight of the evidence and therefore erroneously declare or apply the law.

Standard of Review

The appellate court will affirm the judgment of the trial court unless it lacks substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000). We view all evidence and inferences drawn therefrom in a light most favorable to the judgment. Id. In addition, in a custody matter, this Court gives even greater deference to the trial court than in other matters. Id.

Appellant presents six points on appeal. Points I through IV contend that the trial court erred in modifying the original custody arrangement. Claims of error include the court’s failure to make the required statutory findings, failure to interview the child, not having sufficient evidence to find a substantial and continuing change in circumstance in either Appellant’s or Devin’s situation, and that the court erred in finding the custody change to be in Devin’s best interest. In Points V and VI, Appellant avers that the court should not have ordered retroactive child support for Respondent, nor should it have awarded Respondent any attorney’s fees.

Point I

Appellant contends that the trial court erred as a matter of law in that it failed to make specific findings on all of the statutory factors set forth in § 452.375.2, as required by § 452.375.6, in particular the wishes of the minor child as to her custodian and the intentions of the parties to relocate the principal residence of the child.

In order to modify a prior custody agreement, there is a two-pronged test the court must meet. In re Marriage of Copeland, 148 S.W.3d 327, 329 (Mo.App. 2004). The trial court must find first there has been a substantial change in circumstances of the custodial parent or the child, and second, because of the new circumstance, a modification of custody would be in the best interest of the child. Id. § 452.410.1. In determining the best interest of the child in light of the change in circumstances, the court must consider the public policy set forth in § 452.375.4 and each of the eight factors listed in § 452.375.2. Copeland, 148 S.W.3d at 330. The statutory sections are set forth marginally.

Appellant states that § 452.375.6 “requires the court to include written findings on ‘each of the factors listed in subdivision (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.’ ” However, the statute does not require that the court make written findings on each of the factors, but only those relevant to the case. Speer v. Colon, 155 S.W.3d 60, 62 (Mo.banc 2005). See also In re Marriage of Cluck, 121 S.W.3d 271, 273 (Mo.App.2003).

In the case on appeal, the judge made a significant number of findings of fact in response to Appellant’s request for such findings. While they do not track the order or verbiage of the factors listed in the statute, the court’s findings of fact clearly show that the judge made written findings on, at a minimum, five of the eight statutory factors.

The court made findings on the following facts. It concluded that the child has bonded with her half-brother and “with children her own age” (Factor # 3). Appellant is the party who chooses not to communicate with Respondent regarding matters involving the child, which creates a negative impact on the child and “directly impairs the ability of the child to enjoy a nurturing, loving relationship with both parents” (Factor # 4). Devin has improved in school and has adjusted well to life with Respondent and his wife, who have provided her with a suitable home (Factor #5). Respondent has provided Devin with adequate medical and dental care, while Appellant has engaged in conduct that is harmful to the child, including repeatedly trying to get the child to express an opinion regarding with whom she would like to live, causing the child additional stress (Factor #6). And finally, although it is possible that Respondent could be deployed to Afghanistan, such is not certain, and it would be speculative to assume that his deployment is imminent (Factor # 7).

Appellant’s fifth requested finding of fact dealt specifically with the issues she raises in this point on appeal. She requested a finding on: “Whether or not the Court has considered all relevant factors in making a determination of custody, as provided in Section 452.375.2 RSMo., including but not limited to: 1. What the minor child’s wishes are to her primary custodian; and 2. The intention of either parent to relocate the principal residence of the child.” The court’s response was, “[t]he Court considered all relevant factors required by statute.”

The record shows substantial evidence to support the proposition that the trial court’s findings were made pursuant to the requirements of § 452.375.6, and that written findings of fact were made on the relevant factors listed in § 452.375.2. Appellant’s first point is denied.

Point II

As discussed above, the court did not specifically rule on the question of the child’s wishes as to custody. Indeed, the Appellant requested that the judge interview Devin in chambers to ascertain her wishes, and the judge refused. Appellant asserts that it was an abuse of discretion for the judge to refuse to interview the child because the child was nearly twelve years old at the time of the trial; she had expressed differing opinions on her preference to both her parents and to counselors; and, because of her age and differing opinions, it was incumbent upon the Court to interview her.

Interviewing a minor child to ascertain the child’s preference of a custodian is governed by § 452.385, which states that “[t]he court may interview the child in chambers!.]” There is no requirement that the judge do so, nor is there any mention of the age of the child being a factor. It is completely within the discretion of the trial court whether to interview a child in chambers and, if the court declines to interview the child, then the statute has no application. Osmun v. Osmun, 842 S.W.2d 932, 936 (Mo.App.1992).

Appellant contends that the court’s failure to interview Devin is an abuse of discretion because the child was “practically 12 years old at the time of trial.” She cites two Missouri cases which found it an abuse of discretion for the court to fail to interview a thirteen-year-old child. See Kordonowy v. Kordonowy, 887 S.W.2d 809, 812 (Mo.App.1994) and Parson v. Parson, 93 S.W.3d 791, 793 (Mo.App.2002). Appellant fails to mention two cases that held that it was not an abuse of discretion for the judge to forgo an in camera interview with twelve-year-old minors. See Babbitt v. Babbitt, 15 S.W.3d 787, 789 (Mo.App. 2000); Osmun, 842 S.W.2d at 932.

Babbitt is directly on point. There, the father maintained that it was reversible error when the judge refused the father’s request that the twelve-year-old child be interviewed in chambers to determine the child’s wishes as to his custodian, as authorized by § 452.385. Id. The court held that “[t]he dispositive rule of law on this issue is that a § 452.385 interview is not mandatory!.]” Id. However, they acknowledged the “long-standing rule” that in a custody proceeding, if the child is of sufficient age to intelligently express a preference as to custody, the child should be allowed to do so, and the court must consider the child’s wishes in addition to the other factors listed in § 452.375.2. Id.

However, an in camera interview is not the exclusive procedure for determining the child’s preference. Id. The parent may call the child to testify as to the child’s preference. Id. Respondent indicated that he wanted to shield Devin from the stress of making a choice, and there was evidence from a letter addressed to Devin’s diary that Respondent’s wife found in Devin’s room that she did not want to be the one to make that choice. If there is sufficient evidence in the record of the child’s wishes, the court could feel certain that it had enough information as to the child’s preference without either interviewing or calling the child to testify. Osmun, 842 S.W.2d at 936.

There was evidence that Devin, at different times and to different parties, said she wanted to live with both parents. The letter previously referenced indicates that she did not want to be the one to have to make this most difficult of choices. There is also evidence in the record that, although the judge made no written finding regarding Devin’s preference, he clearly considered it. At trial, the judge, in closing remarks to the parties, stated:

I’m concerned. I’m concerned about a lot of things, and obviously, you can understand my concern when I chose not to interview the child. I do that in ... some cases. Especially when I think the child has been interviewed enough. I think this child has been interviewed more than enough. I think this child has been asked the question “where do you want to live” more than enough. Maybe not directly, but it doesn’t have to be direct to ... make a child feel pressured. And this child wants to make both of you happy.

Assuming arguendo that the judge had interviewed Devin and Devin had expressed to him a strong desire to live with one parent or the other, the court is not obligated to follow the child’s wishes but should consider her wishes along with all the other facts and circumstances before it and follow her wishes only if the welfare and interests of the child are consistent with that preference. Kerr v. Louderback, 35 S.W.3d 511, 514-15 (Mo. App.2001).

It was not an abuse of discretion for the trial court to forgo an interview with the child. The record reveals that the judge had sufficient evidence, including that of Devin’s preferences, to make a well-reasoned decision. Appellant’s second point is denied.

Point III

Appellant avers in her third point that the trial court erred in finding a substantial and continuing change in circumstances to warrant modification of the original custody determination, because the finding was not based on substantial evidence. She contends that there was not sufficient evidence to find a change in her or Devin’s situations, and the trial court inappropriately placed the burden on Appellant, rather than Respondent, to show that her circumstances had changed.

As discussed above, § 452.410.1 requires that a court find both “that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” However, the court is not required to state specifically what circumstances have changed as long as the evidence is sufficient to support a finding that such a change has occurred. Baumgart v. Baumgart, 944 S.W.2d 572, 575-76 (Mo.App.1997).

Viewed in a light most favorable to the trial court’s findings and judgment, there was sufficient evidence to show substantial and continuing changes in the circumstances of both Appellant and Devin. Although the statute requires only a change in circumstances in either the custodial parent or the minor child, in this case there was significant change in the circumstances of both.

While Devin was in her mother’s custody following the divorce, she developed an aversion to going to school, resulting in an increasing numbers of tardies and absences. Missing so much school affected Devin’s grades. Appellant did arrange for Devin to meet with a counselor to address this issue, but counseling apparently did not help. Beside her scholastic problems, Devin’s physical needs were not being addressed adequately by Appellant. When Devin first came into her father’s custody in September of 2001, Respondent took her to a physician, optometrist and a dentist. The dentist found that Devin had ten cavities, including a very noticeable one in a front tooth. Devin also needed eyeglasses. The trial court could conclude that Appellant was not taking Devin to a dentist, at least not frequently enough, and she may also have needed to have her eyes checked.

As to Appellant’s circumstances, by her own admission, in September, 2001, she was unable to care for Devin properly and asked Respondent to take the child. Appellant had moved to Florida without first securing housing and employment, took and quit a job as a waitress, then had trouble finding a replacement position. Although at trial, Appellant contended that her situation was now stable, and she was able to care for Devin, the court held otherwise. In his findings of fact, the judge stated: “The Court finds that [Appellant’s] present circumstance is little improved. Even though she has remarried, has borne another child, she is not employed, the home she and new husband have purchased is heavily mortgaged and they have a negative net worth.”

Appellant claimed that the court improperly placed the burden upon her to show that her circumstances have improved, rather than the burden being placed on Respondent. Appellant is correct that the burden to show change in circumstances is upon the party seeking modification of custody. Johnson v. Lewis, 12 S.W.3d 379, 383 (Mo.App.2000). Appellant also claims that “the original circumstances which led to Devin going to live with her Father were temporary in nature and cannot be considered [to] be either substantial or continuing which should result in a permanent change of physical custody from Mother to Father.”

Respondent agrees that no such burden may legally be placed upon Appellant. However, although the issuance of a temporary order of custody does not shift the burden of proof, the underlying facts that prompted the issuance of the temporary order may be considered, including the length of time the non-custodial parent had actual custody of the child. Baumgart, 944 S.W.2d at 576. Even without shifting the burden of persuasion to Appellant, there is sufficient evidence of change in circumstances. Point III is denied.

Point IV

In her fourth point, Appellant again challenges the court’s determination of best interest of the child. She claims that the decision was not based on substantial evidence in that Respondent was being deployed to Afghanistan, that Appellant now has a stable home so there is no change in circumstances, and that Devin had expressed a desire to live with her.

All three of these contentions have been addressed in the analyses of the points above. In Point I, we held that the court had made the required statutory findings to support its decision regarding best interest of the child. In addition, one of those findings included the judge’s conclusion that Respondent’s deployment to Afghanistan was not imminent and was, in fact, merely a future possibility. Point II dealt extensively with Devin’s desires as to who should be her custodian, and we concluded that there was no firm proof of her wishes, as at different times she told each parent she wanted to live with them. The third point addressed the issue of whether Appellant’s circumstances had improved since September, 2001, thus there was no “change in circumstances” to warrant a change in custody. However, we found there was a substantial and continuing change in circumstances.

As there are no new issues presented in this point, we deny it without further discussion.

Point V

In her fifth point, Appellant claims the trial court erred in awarding Respondent retroactive child support, because such award was a misapplication of law and an abuse of discretion. Appellant avers the award was an abuse of discretion because Respondent did not receive child support at the temporary custody hearing; therefore he is barred by the doctrines of waiver and estoppel from asking for retroactive support at trial, as he “knowingly gave up the right to obtain child support from Mother while this case was pending.” Child support is governed by § 452.340, which specifically allows for retroactive child support.

While § 452.340.1 authorizes retroactive child support, the statute does not require it. Smetana v. Smetana, 963 5.W.2d 1, 2 (Mo.App.1998). It is completely within the discretion of the trial court to determine the effective date of any child support order as long as it is subsequent to the filing of the petition. Id.

Appellant cites no authority that supports her contention on waiver and estop-pel, but references a case that held “[t]he fact that wife was denied child support in a PDL order does not preclude the trial court from awarding her retroactive support as part of the final decree.” In re Marriage of Kovach, 873 S.W.2d 604, 607 (Mo.App.1993). In the instant appeal, Respondent failed to ask for child support in the motion for temporary custody rather than being denied it, but we see no reason why the two situations should be treated differently.

Appellant’s position that Respondent should be estopped from receiving retroactive child support is likewise unsupported by case law. Appellant cites two cases in support of her premise that “where a party relies to his detriment on the reasonable belief that a party with the right to support has expressly renounced that right, the doctrine of waiver reheves the obligor of his obligation to pay child support.” She then lists Grommet v. Grommet, 714 S.W.2d 747, 749 (Mo.App.1986) and Schubert v. Tolivar, 905 S.W.2d 924, 927 (Mo. App.1995). Appellant, however, fails to mention that, in order to use the equitable doctrine of estoppel to relieve the duty of the obligor to pay support, the court must find facts or circumstances to show that, without the invocation of equitable estop-pel, an injustice would occur. Grommet, 714 S.W.2d at 750.

Appellant states that Respondent’s request for retroactive child support at trial, when he could have requested it during the motion for temporary custody, places an unfair burden on Appellant because she relied on the fact that she would not have to pay retroactive child support and spent that money on Devin when she was in Appellant’s care. This is hardly the sort of “indicia of injustice,” id., the court must find. Indeed here, as in Grommet, Appellant “seeks to invoke equitable principles not to protect [herself] from injustice, but to retain an undeserved windfall. Under the circumstances, invocation of equity is entirely inappropriate.” Id. Point V is denied.

Point VI

In her final point, Appellant asserts that the court erred in awarding a $2,000 attorney fee judgment to Respondent. She contends that making such award was an abuse of discretion and was not based on evidence, because Respondent was more financially able to pay his attorney’s fees than she. Appellant supports this contention with the court’s finding that she and her husband have a negative net worth.

“Section 452.355 RSMo 2000 provides that the trial court may order a party to pay reasonable attorney’s fees after considering all relevant factors including the financial resources of both parties, the merits of the case, and the actions of the parties during the pendency of the action.” Prewitt v. Hunter, 105 S.W.3d 874, 877 (Mo.App.2003). Specifically, the trial court may consider a party’s conduct during litigation which unfairly increases the other party’s legal fees. Kovach, 873 S.W.2d at 608. It is entirely within the trial court’s discretion whether to award attorney’s fees, and the appellate court will interfere with an attorney’s fee award only on a showing of abuse of discretion. In re Marriage of McCoy, 818 S.W.2d 322, 325 (Mo.App.1991). To demonstrate an abuse of discretion, the complaining party must demonstrate that the trial court’s decision was so against the logic of the circumstances, arbitrary and unreasonable as to shock the sense of justice. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 399 (Mo.banc 2001).

At trial, Respondent asked for a judgment against Appellant for $5,000 of Respondent’s legal fees. He testified that his legal fees as of the time of trial were approximately $15,000. His attorney then asked him why, since he was the party who initiated the action, he should be awarded any amount for attorney’s fees. Respondent replied that it was because of “[t]he times that I have had to come back to Missouri, the travel cost for that.” He further explained that it was not simply the fact that he had to travel to Missouri; he had initiated the proceedings in Missouri and understood he would have to be present. However, there was an instance when Appellant requested Respondent and his attorney be present for the filing of a motion, although he was not called to testify nor was evidence taken or presented to the court. The judge, after considering all relevant statutory factors, granted Respondent an award of $2,000.

Appellant relies on McCoy, supra, for the proposition that a decision to award attorney’s fees is clearly erroneous if there is a large discrepancy between the income of the two parties and the party in a poorer financial situation is charged. In McCoy, this court reversed an order for the husband to pay wife’s attorney’s fees “[u]nder the peculiar circumstances of this case.” McCoy, 818 S.W.2d at 325. There, the husband received significantly less property in the dissolution than wife, $36,613 versus $147,140, and lived on a fixed retirement income that was less than what the still-employed wife earned. Id.

Appellant’s husband earns in excess of $5,000 per month (that amounts to $60,000 per year, plus overtime), and the court imputed potential income to her in the amount of $2,037 per month, for a total of $7,037 monthly. Respondent makes $4,441 as a captain in the army, and his wife does not work.

“The trial court is an expert on the issue of attorney’s fees and is given wide latitude in the allocation of costs and fees.” Kovach, 873 S.W.2d at 608. We find that the trial court’s award of attorney’s fees in this case was within the evidence and was not an abuse of discretion. Point VI is denied.

The judgment is affirmed.

GARRISON, P.J., files separate opinion concurring part and dissenting in part.

RAHMEYER, J., concurs.

PHILLIP R. GARRISON, Presiding Judge,

concurring in part and dissenting in part.

I concur with the majority opinion except with reference to a statement made in the discussion of the third point on appeal, and with reference to the analysis under the sixth point affirming the $2,000 judgment against Appellant for attorney fees. I respectfully dissent from those portions of the opinion.

In its discussion of the third point on appeal, the majority opinion cites Baumgart v. Baumgart, 944 S.W.2d 572, 576 (Mo.App. W.D.1997), for the proposition that in a modification action pursuant to § 452.410.1, “the court is not required to state specifically what circumstances have changed as long as the evidence is sufficient to support a finding that such a change has occurred.” I disagree with that statement. First, Appellant does not raise an issue in her point relied on about the sufficiency of the trial court’s findings with reference to identifying the changes of circumstances it found to support the modification. This is perhaps for the reason that while the trial court made a general statement that there had been a change of circumstances of the child and its custodian so continuing and substantial as to warrant modification as to child custody, visitation and support to serve the best interests of the child, the court did make specific findings, in response to requested findings of fact, that were responsive to the changes of circumstances alleged in the motion. In my view, therefore, this statement in the majority opinion is dicta.

Beyond that, I disagree with the principle for which the Baumgart case was cited here. Section 452.410.1 prohibits a trial court from modifying a prior custody decree unless, among other things, 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 that the modification is necessary to serve the best interests of the child.” In my view, when a trial court finds a change of circumstances sufficient to warrant a modification of custody, it should specify not only that there were changes in circumstances, but also what those changes were and to whom they apply. Otherwise, appellate courts are left in the position of perusing the entire record to determine if there is a basis for the finding without any indication of what the trial court believed or disbelieved. If the statute requires that a trial court shall not modify a prior custody decree unless it “finds” the necessary, prerequisites, requiring such a specific finding is neither unreasonable nor does it offend the plainly expressed legislative intent of the statute. Consistent with this is the statement in Sumnickt v. Sackman, 906 S.W.2d 725, 728 (Mo.App. W.D.1995), a modification of custody case, which held that “unless we see something in the record that is clearly an item of substantial concern, we will confine ourselves to those concerns which have been pleaded, and which the trial court believed to be sufficiently significant to warrant mention in the court’s order.” See also Parker v. Parker, 66 S.W.3d 778, 787 (Mo.App. W.D. 2002).

I also dissent from that portion of the majority opinion affirming the award of attorney fees to Respondent. As pointed out by the majority, § 452.355.1 requires consideration of all relevant factors including the financial resources of both parties, the merits of the case, and the actions of the parties during the pendency of the action. Here, Appellant’s point is directed to the lack of substantial evidence of an ability to pay the judgment as well as the comparative financial condition of the parties. She argues that “the trial court specifically found in its judgment that Mother, who is only employed part-time, and her present husband have a negative net worth and therefore are in a far worse position to pay the cost of this litigation than is Father, who currently earns a gross monthly income of $4,441.00 per month as a captain in the United States Army.”

Appellant was not employed at the time of trial, having given birth to a child two months earlier. She anticipated going back to work as an emergency registration clerk at a local medical center, but on a part-time basis because of the cost of child care. Her income at that employment had been $19,993 when she had worked full-time. Accordingly, her Form 14 reflected a gross monthly income for her of $833. Respondent’s Form 14 imputing income of $2,037 per month to Appellant was adopted by the trial court.

The record before us does not reflect any evidence about Appellant’s available disposable income. The evidence did indicate that she and her current husband have a home that has no equity, they owe $71,000 in other mortgages and debts, they have no savings, and they have no assets with values as much as their liabilities. In fact, the trial court found that Appellant “is not employed, the home she and her new husband have purchased is heavily mortgaged and they have a negative net worth.”

In the absence of evidence as to the parties’ financial resources, an award of attorney fees cannot be supported. In re Marriage of Trimble, 978 S.W.2d 55, 59 (Mo.App. S.D.1998). A court must know what debts each party owes and what non-employment income each has before it can determine either need or ability to pay attorney fees pursuant to § 452.355.1. Id.; see also Barancik v. Meade, 106 S.W.3d 582, 594 (Mo.App. W.D.2003). Thus, “financial resources” of the respective parties contemplates consideration of which party is best financially able to bear attorney’s fees. In re Marriage of McCoy, 818 S.W.2d 322, 325 (Mo.App. S.D.1991).

In McDaniel v. McDaniel, 982 S.W.2d 729, 732-33 (Mo.App. E.D.1998), the mother, to whom $886 monthly income was imputed, was ordered to pay $2,000 of the father’s attorney fees even though the evidence indicated that he had a monthly income of $2,393. There was no evidence that the mother had available resources from which to pay the attorney fee award, and there was no evidence that the father could not afford to pay his own attorney fees. Id. at 732. The appellate court reversed the award, finding it was an abuse of discretion, based, among other things, on the mother’s lack of ability to pay. Id. at 733.

In the instant case, I would reverse the award against Appellant for attorney fees. Even considering the income imputed to Appellant, Respondent has over twice as much monthly income as does Appellant. In Kreitz v. Kreitz, 750 S.W.2d 681, 686 (Mo.App. E.D.1988), the court reversed an attorney fee award where the party in whose favor the judgment was entered had an income more than twice that of the party ordered to pay. Additionally, here, there is no showing that Appellant has the ability to pay the attorney fees or that Respondent has a need. In this regard, I also note that Appellant was ordered to pay child support of $165 per month as well as $2,475 in retroactive child support, payable at the rate of $100 per month.

In affirming the judgment against Appellant for part of Respondent’s attorney fees, the majority opinion relies, in part, on the income of Appellant’s present husband. I disagree with this approach for two reasons. First, there was no evidence concerning the expendable income of Appellant and her current husband after paying their existing debts, which totaled more than their assets.

Secondly, § 452.355 obligates the court to consider the “financial resources of both parties,” but I do not believe that necessarily includes the income or assets of a current spouse. In this case, neither party cites authority concerning the propriety of including the income of Appellant’s current husband in assessing an ability to pay attorney fees. The majority opinion also includes that factor without citing authority in support.

The decision in K.J.B. v. C.M.B., 779 S.W.2d 36, 41 (Mo.App. E.D.1989), indicates, albeit without the citation of authority, that a new spouse’s income is not an appropriate consideration in determining an award of attorney fees under § 452.355. There the court noted the new spouse’s income, but said, “[h]owever, there is no evidence that mother has assets of her own or works outside the home.” Id. However, the western district’s decision in Callis v. Bryce, 872 S.W.2d 539, 543 (Mo.App. W.D.1994), indicates, again without the citation of authority, that consideration of assets jointly owned with a new spouse was appropriate in determining an award of attorney fees.

Section 452.370.1 provides, in part, that in actions for modification of child support or maintenance, the trial court shall consider all financial resources of both parties, “including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other persons with whom he or she cohabits,” and the earning capacity of a party who is not employed. As indicated above, § 452.355.1 permits the trial court to order one party to pay part of the other party’s attorney fees and costs after considering all relevant factors including the financial resources of both parties. Unlike § 452.370.1, § 452.355.1 includes no provision concerning consideration of a third party. Instead, § 452.355.1 specifically refers to the financial resources of “both parties.”

Appellant’s current husband is not a party to these proceedings and there is no showing that his income is a “resource” available to her to satisfy a judgment for part of Respondent’s attorney fees. Accordingly, I do not agree with any suggestion that it is appropriate to consider the income of Appellant’s husband in determining the propriety of an award against her for a part of those attorney fees.

      . Speer v. Colon, 155 S.W.3d 60, 62 (Mo.banc 2005), held that Missouri’s statutory scheme does not allow for an order granting “primary physical custody," but only sole physical custody or joint physical custody. See § 452.375.1, RSMo 2000.

      . Both of the parties remarried, and each had an additional child after the divorce. Respondent married in 1999, and the couple had a son in April, 2003, while Appellant married in July, 2002, and gave birth to a daughter a year later.

      . Unless otherwise noted, all statutory references are to RSMo.2000.

      . Section 452.375.4 reads as follows:
      The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

      . Section 452.375.6, in pertinent part, reads as follows:
      If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (I) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child....

      . § 452.340.1 reads, in pertinent part:
      In a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the support of the child, including an award retroactive to the date of filing the petition, without regard to marital misconduct, after considering all relevant factors ...

      . The judgment in this case was entered prior to the effective date of Rule 78.07(c) which provides that allegations of error relating to the failure to make statutorily required findings must be raised in a motion to amend the judgment in order to be preserved for appellate review.

      . The imputation of that income to Appellant is not an issue on this appeal.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Joyce J. (Franko) DELANEY, Plaintiff-Respondent, v. Brian Morris GLEED, Defendant-Appellant.
    No. 25912.
    Missouri Court of Appeals, Southern District, Division One.
    July 17, 2005.

      Christopher J. Stark, Springfield, MO, for Appellant.
    Lynn C. Rodgers, Deborah K. Dodge, Springfield, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

The case before us has a tortured procedural history; it is before us now after the trial court designated its judgment in a partition action as a final judgment with no just reason for delay was granted by the trial court. We must determine initially whether we have jurisdiction in this matter. We find that we do not and dismiss the appeal.

Typically, an appellate court only has jurisdiction over final judgments that dispose of all issues and parties and leave nothing for future determination. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Rule 74.01(b) provides an exception to this rule and allows a trial court to enter a judgment on fewer than all claims and certify the judgment for appeal provided that it makes an express determination that “no just reason for delay” exists. Id. The trial court’s determination is not conclusive, however. Id. “It is the content, substance, and effect of the order that determines finality and appealability.” Id. The appellate court must determine whether the partial judgment actually qualifies as a final judgment. Clay County ex rel. County Com’n of Clay County v. Harley and Susie Bogue, Inc., 988 S.W.2d 102, 108 (Mo.App. W.D.1999). Although appellate courts give trial courts wide latitude regarding its determination that a partial judgment is certified for appeal under Rule 74.01(b), “where the circumstances of the case and the judgment are wholly inconsistent with a finding of ‘no just cause for delay,’ a finding to that effect by a trial court is an abuse of discretion.” Committee for Educ. Equality v. State, 878 S.W.2d 446, 453 (Mo. banc 1994).

In the present case, the trial court, as directed by Rule 96.08 and chapter 528, determined the interests of the parties and determined that the property must be sold. Next, the trial court made an express determination of “no just reason for delay” and made an order of final distribution of the property, but it simultaneously sustained a request for an accounting of rents, profits, insurance proceeds, and waste. Because the trial court sustained the motion for accounting, the court abused its discretion by finding “no just reason for delay” and making a final order of distribution of the property. The result of the accountings will necessarily affect the distribution of the sale proceeds; thus, the judgment is not final and we are forced to dismiss the appeal.

Procedural History

The initial lawsuits were filed in 1996; Joyce J. (Franko) Delaney (“Respondent”) initially filed a suit in two counts, the first count for clear title and the second for a declaratory judgment adjudicating the rights and interests of the parties. After numerous discovery disputes and motions before the trial court, approximately a year later, Brian Morris Gleed (“Appellant”) filed a counterclaim in two counts, first asking for funds due him from the closing of real estate Appellant claimed to have an interest in and, second, a suit in partition. In 1998, a trial was held in which the trial court granted Appellant’s motion for judgment at the close of Respondent’s case on her claim for quiet title; again, after numerous trial motions, the court in August of 2000 granted an interlocutory judgment and order in partition. The court made specific findings that Appellant was not entitled to any credit for rental value of the premises because Appellant did not contribute to improvements to the property and that the property had no rental value because it was unlivable prior to the improvements. The court determined the interests of the parties as 86.33% to Respondent and 13.67% to Appellant.

The court appointed Commissioners as required by law in aid of the determination whether the property could be divided in kind and to determine whether a division in kind could be ordered. The Commissioners reported that partition could not be made without great prejudice to the owners. Respondent filed a motion for an order for the sale of land in May 2002. After numerous delays in setting a date for a final hearing, the land was ordered sold on December 17, 2002. The land was sold, the sale was approved and the proceeds were placed in the deposit of the court on March 25, 2003. Appellant filed a motion for “additional extension of time to file motions and suggestions” on June 25, 2003; on July 2, 2003, Appellant filed an additional motion for sanctions and order to determine the value of the property and for an order allowing attorney fees; on August 14, 2003, Appellant filed a motion to “re-open evidence”; and on August 15, 2003, a motion for accounting of rents, profits, insurance proceeds, and waste.

On August 15, 2003, the trial court entered an order purporting to amend the partition judgment and ordered $5,000.00 in attorney fees to be awarded. On August 29, 2003, a final judgment was entered ordering costs and percentages of the proceeds in line with the interlocutory order to be paid to Respondent and Appellant; however, in a docket entry, the court indicated that the money was not to be paid out until “he says it is ok.” The docket entry reflects that an Amended Final Judgment was filed on September 2, 2003. On September 29, 2003, Appellant filed a motion for a new trial, which was overruled on October 24, 2003. It is from that judgment that an appeal was taken. In an interesting twist, however, Appellant now claims that there is no final judgment because of unresolved issues between the parties.

Specifically, he bases this claim on an argument that in its September 2, 2003 order, the court stated:

On August 15, 2003, the Court considered [Appellant’s] Motion for Attorneys Fees and Motion to Reopen the Evidence for further proceedings on alleged waste and accounting for rents received from the property. The Court sustained [Appellant’s] Motion for Attorney[’]s Fees and awarded [Appellant] an attorney's fee of $5,000.00, to be deducted from the sale, paid into the registry of the Court. The Court further sustained [Appellant’s] Motion to Reopen the Evidence, but expressly notes that it has taken multiple attorneys, judges, dismissal dockets, and the passage of 5 2[sic] years, to get to this point of having sold the land and entered a judgment as to division of the proceeds from the sale, and in accordance with Supreme Court Rule 74.02(l)(b), for the basic underlying litigation, the Court finds there is no just reason for delay and denominates this as a final judgment as to the partition issues. Pending are recently raised new issues for accounting of rents, profits, insurance proceeds; that by gauging the 5 2[sic] years to make it to this point, the Court believes it is time to let the parties proceed to some finality in the partition action

Discussion

Initially, we note that Appellant has the duty to provide this court with all of the documents which support his contentions and matters omitted from the record will not be presumed to be favorable to Appellant. Wilkerson v. Prelutsky, 943 S.W.2d 643, 649 (Mo. banc 1997); Rule 81.12. As noted above, although Appellant filed motions on August 14, 2004, to reopen evidence, and on August 15, 2003, for an accounting of rents, profits, insurance proceeds, and waste, Appellant failed to include in the legal file any of those pleadings. We do not know the precise basis of his claim that the evidence was reopened. We do not see in the record the grant of any of Appellant’s previous motions to reopen the evidence other than the recitation in the Amended Final Judgment of September 2, 2003. On August 29, 2003, a judgment was entered. Appellant failed to provide this Court with a copy of that judgment. It was not until September 29, 2003, that Appellant filed a motion for new trial. In that motion he claimed there were pending issues affecting the distribution ordered by the court in the partition action, namely the willful and wanton destruction of a substantial portion of the improvements prior to the auction of the property but after the inspection by the Commissioners. The motion for new trial was overruled on October 24, 2003, and the Notice of Appeal was filed November 3, 2003. Although normally Appellant’s proposition would fail for his failure to provide us with the appropriate documentation, the Amended Final Judgment, which purports to be a final judgment, admits that there are still pending issues related to accounting of rents, profits, and insurance proceeds. As these items relate to the distribution from a partition sale, we are forced to dismiss the appeal.

The appropriate test for determining whether the court abused its discretion is the four-factor test outlined in Lynch v. Lynch, 966 S.W.2d 345 (Mo.App. E.D. 1998). The Lynch court explained that an appellate court deciding whether certification of a partial judgment is proper must consider four factors:

(1) whether the action remains pending in the trial court as to all parties; (2) whether similar relief can be awarded in each separate count; (3) whether determination of the claims pending in the trial court would moot the claim being appealed; and (4) whether the factual underpinnings of all the claims are intertwined.

Id. at 347. Both parties agree that Lynch provides the appropriate test for these circumstances, and both parties agree that the first factor favors a dismissal because the action remains pending in the trial court as to all parties.

The second factor also favors a dismissal. The relief for the actions for rents, profits, and waste is the same relief awarded in a partition suit. In a partition suit, parties who have made expenditures with respect to the property for taxes, insurance, and necessary repairs and improvements are entitled to reimbursement from the other parties who have an interest in the property. Clark v. Dady, 131 S.W.3d 382, 390 (Mo.App. W.D.2004). In the case of a partition sale, “reimbursement is effectuated by offsetting the reimbursable expenditures against the sale proceeds partitioned to the other party.” Id. Likewise, a party may be entitled to a credit or setoff against the sale proceeds partitioned to another party if the other party has earned rents and profits from the property or has committed waste that affected the value of the property. See Hartog v. Siegler, 615 S.W.2d 632, 637 (Mo.App. E.D.1981) (finding that a co-tenant not in possession may be entitled to set off claims for rents and profits against reimbursable expenditures); Colbert v. Howard, 707 S.W.2d 496, 498-99 (Mo.App. W.D.1986) (concluding that allegations of waste may affect the final distribution of partition sale proceeds); and Hahn v. Hahn, 297 S.W.2d 559, 567 (Mo. banc 1957) (explaining that whether a tenant in possession is accountable for profits produced by his own efforts is affected by whether the tenant in possession has committed waste). Thus, the relief for actions for rents, profits, and waste not only is the same kind of relief awarded in a partition suit but also affects the relief awarded in the partition suit.

The third factor also merits a dismissal. The claim being appealed is that the trial court should include a determination of the claims for rents, profits, and waste in its order of final distribution of the property. If the trial court considers these claims in its final order, the claim being appealed would become moot.

Finally, the fourth factor justifies a dismissal. The factual underpinnings of the rent and profits claims are intertwined with the partition action because the alleged rents and profits had accrued at the time of the time of partition. In Smith v. Hackleman, this Court held that the time of the accrual of alleged rents and profits in relation to the time of partition is the determinative issue regarding when a claim for an accounting of rents and profits must be resolved:

if at the time of partition the rents and profits in dispute have not accrued, are not in perception and are not ascertainable, the law does not require the impossible (lex non cogit ad impossibilia) and will permit an action in accounting to be maintained after termination of the partition suit. However, if the rents and profits have “accrued” or “if there is anything due,” or if there be “rents and profits in perception” at the time of partition, then a claim for accounting of such rents and profits must be made in the partition suit if the claimant is to avoid splitting his cause of action and having a subsequent and separate action for an accounting barred under the doctrine of res judicata.

467 S.W.2d 61, 64 (Mo.App.1971) (citations omitted).

In the present case, the motion for accounting of rents, profits, insurance proceeds, and waste apparently requests, in part, that Respondent account for the rents received when she leased the property to a third party. These amounts are “rents and profits in perception,” and they had accrued at the time of partition. Thus, according to Hackleman, if Appellant made his claim for accounting as a part of the partition suit, then the trial court must resolve the claim before entering a final judgment. Appellant did not make the claim when he initially brought the partition suit, but he did make it before the court entered its Amended Final Judgment, while the trial court still had jurisdiction to modify its interlocutory judgment. See Heintz v. Hudkins, 824 S.W.2d 139, 144 (Mo.App. S.D.1992) (finding that “[a] trial court retains jurisdiction to modify an interlocutory judgment in a partition suit any time before final judgment”). Thus, according to Hackleman, the actions for accounting and partition in this case are intertwined.

All of the four factors of the Lynch test therefore mandate a dismissal and the trial court abused its discretion by ordering a final distribution of the partition sale proceeds. The court must resolve the pending issues regarding rents, profits, insurance proceeds, and waste before entering a final judgment ordering a final distribution of the partition sale proceeds. We are also mindful that the trial court in an earlier interlocutory judgment found that there was no rental value and denied any claim for rents due to Respondent’s occupation of the property; however, because that order was interlocutory, we must conclude that the trial court reconsidered the issue and the potential effect of the issues raised in the accounting. In making this decision, we intend to convey no opinion whatsoever on the merits of the percentages of the partition rendered by the court in its interlocutory judgment. The appeal is dismissed.

GARRISON, P.J., concurs in result only.

PREWITT, J., concurs.

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

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


author: ROBERT G. DOWD, JR., Judge.

text:
    HUFFY CORPORATION, Respondent, v. CUSTOM WAREHOUSE, INC., Appellant.
    No. ED 84843.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 2, 2005.

      James W. Erwin, St. Louis, MO, for Appellant.
    Matthew M. Mocherman, Cape Girar-deau, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

This is an action for property damage by Huffy Corporation (Huffy) against Custom Warehouse, Inc. (CWI). CWI appeals from the judgment entered in favor of Huffy and against CWI for $254,677.62, which included $143,916.21 for damages to 2,155 bicycles. CWI argues the trial court erred in awarding Huffy $143,916.21 in property damage to bicycles because the only evidence of such damage was Exhibit 1, an inadmissible summary based on documentation Huffy was unable to produce for CWI’s inspection. We affirm.

CWI admitted liability and the only issue at trial was Huffy’s damages. Viewed in the light most favorable to the judgment, the following evidence was adduced at trial. Huffy was in the business of manufacturing, distributing and selling bicycles. In 1998, Phil Johnson (Johnson) was the materials manager of Huffy’s Farmington, Missouri facility. Johnson’s duties included keeping track of the condition and location of all of the bicycles and parts Huffy had either in production, storage or transit to distributors at any given time, including warehouse management.

On August 27,1998, a CWI forklift operator struck a water main, flooding the warehouse facility and affecting approximately 8,000 to 10,000 of Huffy’s packaged bicycles. On August 28, 1998, Johnson appeared at the Cape Girardeau CWI warehouse and personally inspected the damage. Johnson oversaw the cleanup process, which included determining which of the approximately 50,000 bikes had been damaged, and which of those bikes could be repaired or salvaged, or simply discarded.

Johnson was provided weekly reports by Tom Wright (Wright), a quality associate for Huffy, identifying the bikes that had been repaired, salvaged or discarded that week as well as the labor and other costs associated with the cleanup project. Johnson had personal knowledge of the information that was submitted to him on a weekly basis by Wright in that all documentation crossed his desk. Upon receiving the weekly reports, Johnson and other Huffy personnel inputted the data into Huffy’s computer system.

Huffy utilized a software program to keep track of its bikes that contained the cost of production of each model. This same program was used to determine the money Huffy lost due to the August 27, 1998 incident. At the end of each week, numbers from the site were entered into the program so that the compilation of bikes affected by the loss and them model numbers could be recorded. At trial, Huffy offered Exhibit 1 into evidence. Huffy’s Exhibit 1 is a spreadsheet that the computer program generated which reflects the number of bikes affected and established a monetary damage to Huffy in the amount of $143,916.21.

The data reflected on the spreadsheet the information inputted into Huffy’s computer system from weekly reports submitted by Huffy personnel. Huffy employees, including Johnson, inputted the data, which was reflected on the spreadsheet and the program included Huffy’s cost in each particular inventory item.

In 2000, Huffy closed several plants throughout the United States, including the Farmington, Missouri facility. All records from the plants which were closed were sent to Huffy’s home office in Ohio to a storage facility for holding. Subsequent to the filing of the first amended petition in March 2001, Huffy attempted to locate any records that were relevant to the August 27, 1998 water main break. Dave Duff (Duff), director of product safety for Huffy, testified that Huffy went through trailer loads of materials looking for any paperwork related to the incident. According to Johnson there were three files located at the Farmington facility which housed documents, including the weekly reports from Wright, which were entered into Huffy’s computer program, which could not be found and provided to CWI.

At trial, CWI objected to Huffy’s use of Exhibit 1 because it was a summary based on documentation Huffy was unable to produce for CWI’s inspection. Johnson testified he had personal knowledge concerning the numbers contained in Exhibit 1. Johnson testified that based upon the CWI invoices for repacking, trash disposal, and hourly fees, one could determine the number of bikes discarded. Based upon a review of Huffy documentation and conversations with Huffy employees and counsel, Duff testified Huffy sustained property damages in the amount of $143,916.21 as a result of the water main breakage. Dan Beard (Beard), CWI’s manager, admitted that CWI had no independent documentation which would contradict the number of bikes Huffy claimed to be salvaged or discarded.

After the close of all evidence, the trial court awarded judgment in favor of Huffy and against CWI in the amount of $254,677.62, which consisted of $143,916.21 for damages to 2,155 bicycles, $80,127.86 in expenses paid by Huffy to CWI for cleanup of a water main break, $16,500.00 in labor, travel, and material expenses incurred by Huffy for its initial damage assessment, and $45,143.93 in pre-judgment interest. This appeal follows.

In its sole point on appeal, CWI argues the trial court erred in awarding Huffy $143,916.21 in property damage to bicycles because the only evidence of such damage was Exhibit 1, an inadmissible summary based on documentation Huffy was unable to produce for CWI’s inspection. We disagree.

Following a court-tried case, our review is governed by the principles articulated in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). Unless the trial court’s judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies law, we must affirm the trial court’s decision. Id. In reviewing the trial court’s decision, we review the evidence, and all reasonable inferences, in a light most favorable to the judgment of the trial court, and disregard all contrary evidence and inferences. Id. The credibility of the witnesses and the weight to be given their respective testimony is left to the trial court, and the trial court is free to believe none, part or all of the testimony of any witnesses. Id.

The admission or exclusion of evidence lies within the sound discretion of the trial court, and the trial court’s ruling will not be disturbed absent abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. at 604 (quoting Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991)). A number of foundational requirements must be established prior to the admission of a document, including relevancy, authentication, the best evidence rule, and hearsay. Estate of West v. Moffatt, 32 S.W.3d 648, 653 (Mo.App. W.D. 2000). The determination of whether an adequate foundation was laid for the admission of a document is within the trial courts discretion. Id.

Here, the trial court admitted Exhibit 1, a computer generated spreadsheet, which set forth, among other things, the number of bikes damaged and the cost of production for each bike. CWI argues the spreadsheet was a “summary,” which mandated the production of the underlying documentation on which the spreadsheet was based. The trial court admitted Exhibit 1 as a business record exception to the hearsay rule under Section 490.680, RSMo 2000, which provides:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of the information, method and time of preparation were such as to justify its admission.

Missouri courts have recognized the use of computer printouts as business records. In Ozark Appraisal v. Neale, 67 S.W.3d 759, 766 (Mo.App.S.D.2002), the court specifically addressed the application of Section 490.680 to computer printouts:

[U]nder this statute, where a business regularly uses computer equipment to enter and store its business records, print-outs of the records are admissible if the entries reflected are made in the regular course of business at or reasonably near the time of the occurrences of the events they record, and the trial court is satisfied that the source of the information and the mode and time of preparation indicate trustworthiness and hence justified admission.

0citing Estate of West, 32 S.W.3d at 653)

CWI suggests the spreadsheet was generated for the purpose of a “claim” and therefore should be treated as other summaries which are created for trial. We are not persuaded by this argument. Here, the trial court determined and the evidence revealed that Exhibit 1 was made in the ordinary course of business near the event of August 27, 1998, and was not a summary created for trial based upon other voluminous records. Huffy was in the business of manufacturing, distributing and selling bicycles, and part of the ordinary course of that business was keeping track of the condition and location of those bikes. If inventory was damaged, lost, stolen, or shipped, the computer system used by Huffy was designed to track the inventory. The information reflected in Exhibit 1 was generated in the ordinary course of Huffy’s business. The spreadsheet was generated near the time of the incident to manage inventory and five years prior to trial.

The record reveals that as a result of the August 27, 1998 water main break, Huffy discarded or salvaged 2,155 bikes at a cost of $143,916.21. Johnson testified he personally reviewed all information submitted by his employees on a weekly basis, and was at the CWI facility twice a week to oversee the response team. Johnson had personal knowledge, based upon his position as material manager, as to the damages sustained by Huffy and was qualified to testify concerning such damages.

Moreover, Johnson was qualified to testify as to the business of Huffy, specifically in reference to the incident of August 27, 1998. A witness is qualified to testify regarding a business record if he or she has sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity. Estate of West, 32 S.W.3d at 653. The trial court is afforded broad discretion in determining whether a party has properly complied with Section 490.680. Id. In 1998, Johnson was the materials manager of the Farmington, Missouri facility. Johnson’s duties included keeping track of the condition and location of all of the bicycles and parts Huffy had in production, storage or transit to distributors at any given time, including warehoused goods. On August 28, 1998 Johnson appeared at the Cape Girardeau CWI warehouse and personally inspected the damage. Johnson supervised the cleanup process, which included a damage assessment of approximately 50,000 bikes.

Johnson also possessed knowledge concerning the mode in which the spreadsheet was generated. Johnson was provided, and personally reviewed, weekly data which reflected the number of bikes repaired, salvaged or discarded, along with information regarding the cost of labor involved in separating and repackaging the bikes. Johnson had personal knowledge of the information that was submitted on a weekly basis by Wright, in that all documentation crossed his desk. Upon receiving the weekly data, Johnson, and other Huffy personnel, loaded the data into Huffy’s computer system. According to Johnson, Huffy utilized a software program to keep track of its bikes, which included the cost of production of each model. The spreadsheet was generated near the time of the August 1998 loss, and reflected not only the number of bikes lost and salvaged, but included Huffy’s cost in each particular inventory item. Sufficient evidence was adduced which satisfied the requirements of Section 490.680. Based upon the qualified testimony of Johnson, the trial court found Exhibit 1 was not compiled for trial purposes and summarized other business records, but that the spreadsheet, in and of itself, was an admissible business record.

Finally, CWI argues Exhibit 1 should have been excluded based upon the absence of the ‘Wright” documents. We note the summaries discussed in CWI’s cited authorities were not, as here, business records generated near or at the time of the event, but summaries generated for trial. See Ahrens McCarron, Inc. v. Mullenix Corp., 793 S.W.2d 534, 539-540 (Mo. App. E.D.1990); Refrigeration Industries, Inc. v. Nemmers, 880 S.W.2d 912, 919 (Mo.App. W.D.1994); Gasser v. John Knox Village, 761 S.W.2d 728, 734 (Mo.App. W.D.1988).

The trial court did not err in admitting Exhibit 1. There was no abuse of discretion in the admission of the computer spreadsheet. The trial court’s judgment awarding Huffy $143,916.21 for property damage to bicycles is supported by substantial competent evidence.

Judgment affirmed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . Quality associates, members of Huffy’s quality department, were responsible for routinely inspecting bicycles, assessing damage to bicycles, and determining which repairs were feasible.

      . The record reveals that from approximately September 1998 to February 1999, weekly reports were compiled concerning which bicycles were salvaged or thrown away.

      . Unless otherwise indicated, all further statutory references are to RSMo 2000.

      . CWI cites the federal rule that provides backup documents of summaries must be made available to the opposing party for purposes of trial. Rule 1006 of the Federal Rules of Evidence provides: “The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at [a] reasonable time and place. The court may order that they be produced in court.” In reference to Rule 1006, the Advisory Committee’s Note states: "The admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury.” 4 Wigmore Section 1230. Also United States v. Scales, 594 F.2d 558, 561-565 (1979) extensively discusses the use of summaries as an aid for trial purposes. Here, Exhibit 1 was not compiled in contemplation of trial, but was a document made in the regular course of Huffy’s business near or at the time of the incident. Therefore, Rule 1006, even if it governed, would afford CWI no relief.

      . We also note that in Ozarlc Appraisal, the court found a summary of business records was not made in the regular course of business but compiled for trial and was therefore improperly admitted as a business record. 67 S.W.3d at 766.