author: JAMES K. PREWITT, Presiding Judge.

text:
    Christy Beth BALDWIN, Petitioner, v. David Lane BALDWIN, Respondent-Respondent, State of Missouri, Department of Social Services, Family Support Division, Appellant.
    No. 26685.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 6, 2005.
    Application for Transfer Denied Oct. 24, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., and Gary A. Troxell, Asst. Atty. Gen., Springfield, MO, for Appellant.
    James R. Sharp, Sharp & Bredesen, Springfield, MO, for Respondent.
   JAMES K. PREWITT, Presiding Judge.

State of Missouri, Department of Social Services, Family Support Division (“FSD”), appeals the denial of its motion to intervene in an action it filed pursuant to § 454.400.2, RSMo 2000, for modification of an existing child support order.

In May of 1996, the marriage of David Baldwin (“Father”) and Christy Baldwin (“Mother”) was dissolved by the Circuit Court of Greene County. Joint legal custody of the couple’s three minor children was awarded to the parties. Father was ordered to pay to the Clerk of the Circuit Court of Greene County, as trustee for Mother, $1,070.00 per month as child support; $356.66 each for two sons, Grant, born September 23, 1981, and Taylor, born February 27, 1985, and $356.67 for daughter, Kelsey, born March 10, 1988. On July 28, 1999, the child support order was amended, and Father was ordered to pay $356.66 per month directly to Grant and $713.33 per month to the Clerk of the Circuit Court of Greene County, as support for Taylor and Kelsey.

By letter dated March 25, 2003, to “Child Support Modification Unit,” Mother requested a “modification review” of the child support award. Upon review and its determination that “circumstances have changed so substantially and on a continuing basis so as to make the terms of the existing support order unreasonable,” FSD filed a motion to modify the child support order in the Circuit Court of Greene County on March 15, 2004. The changes in circumstances alleged in the motion to modify included: (1) that Grant was over the age and twenty-two and no longer entitled to support; and (2) that the presumed child support calculated “would re-suit in a change of more than twenty percent, ... thus creating a presumption of modification.”

Father moved to dismiss, alleging in part, that FDS did not seek leave to intervene and did not establish standing to bring the motion to modify. In response to Father’s motion to dismiss, FSD submitted suggestions in opposition, positing that permission to intervene was not necessary nor appropriate in that it had a statutory right to prosecute child support actions under § 454.400. By docket entry dated May 24, 2004, the Family Court Commissioner deferred ruling on Father’s motion to dismiss, finding that FSD was entitled to file an independent action under § 454.400, and further finding that FSD must move to intervene. The Commissioner granted FSD thirty days in which to file a motion for leave to intervene.

On June 9, 2004, FSD filed its motion to intervene, pursuant to Rule 52.12(a). Following a hearing on the matter, the Commissioner recommended denial of the motion, finding that FSD’s right to intervene in this case was “conditional,” and that FSD failed to meet its burden in proving that the action below involved a “IV-D case” pursuant to § 454.400, RSMo. The Commissioner also concluded that the Attorney General’s representation of Mother in this action is a conflict of interest in that the Attorney General represented Father “in substantially the same related matter” in 2002.

The denial of FSD’s motion to intervene under Rule 52.12(a) is appeal-able. 7n the Interest of S.R.L., 984 S.W.2d 558, 559 (Mo.App.1999). Upon review of the denial of a motion to intervene, this court will affirm unless there is no substantial evidence to support the denial, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Liquidation of Professional Medical Ins. Co., 92 S.W.3d 775, 778 (Mo.banc 2003). The facts are considered in the light most favorable to the trial court’s ruling. In the Interest of M.B., 91 S.W.3d 122,125 (Mo.App.2002).

In Point I, FSD contends the trial court erred in finding that the underlying action did not involve a IV-D case. Its second and third points challenge findings that FSD was required to seek leave to intervene and that intervention by FSD was permissive. Under its fourth point, FSD assigns error to the trial court’s finding that a conflict of interest exists in the Attorney General’s representation of Mother in this matter.

The “Child Support Enforcement Amendments of 1984” were adopted by the United States Congress as amendments to Part D of Title IV of the Social Security Act and are aimed at strengthening child support enforcement and paternity establishment programs previously authorized by the Act. Wills v. Wills, 750 S.W.2d 567, 570 (Mo.App.1988). In order for states to qualify for federal public assistance funds, states must comply with requirements set forth in Title IV, Part D of the Social Security Act, 42 U.S.C.A. §§ 651-669b, which require states to establish a detailed state plan for a child support enforcement program. Blessing v. Freestone, 520 U.S. 329, 333, 117 S.Ct. 1353,1356, 137 L.Ed.2d 569, 577-78 (1997). Compliance with the federal guidelines is mandatory in order for a state to receive funding for such programs. Id.

Missouri’s General Assembly responded in 1986 by adopting the “Child Support Enforcement Act,” originally set forth in §§ 454.400 through 454.528, RSMo 1986. Wills, 750 S.W.2d at 571. Missouri’s Act provides for enforcement of child support obligations by the State, “acting through the Division of Child Support Enforcement of the Department of Social Services [now FSD], prosecuting attorneys, or attorneys in cooperation with the Division[.]” Id. While primarily applicable to situations where support payments have been assigned to the State of Missouri or where FSD renders child support enforcement services, the Act also applies to persons who do not receive public assistance. Shadwick v. Byrd, 867 S.W.2d 231, 234 (Mo.App.1993). See also Werths v. Director, DCSE, 96 S.W.3d 136, 143 (Mo.App.2003); Smith v. State ex rel. Rambo, 30 S.W.3d 925, 928 (Mo.App.2000).

Section 454.425, amended effective July 1, 1997, provides, in part, that the division “shall render child support services authorized pursuant to this chapter to persons who are not recipients of public assistance as well as to such recipients. Services may be provided to children, custodial parents, noncustodial parents and other persons entitled to receive support.” Services referred to above include “services relating to the establishment of paternity and the establishment, modification and enforcement of child support obligations,” § 454.400.2(14), and “review [of] the adequacy of child support orders in IV-D cases to determine whether modification is appropriate pursuant to the guidelines established by supreme court rule 88.01.” § 454.400.2(13). A “IV-D” case is one “in which services are being provided pursuant to section 454.400.” § 454.460(8).

Respondent contends that the action below did not fall into the category of a “IVD case,” as it does not involve any determination of paternity, no public assistance is being received or has been received by the family, and there is already in place a judicial order for child support. This issue has been settled by the U.S. Supreme Court in Blessing v. Freestone, supra. There, the Supreme Court stated that, under Title IV, Part D, “a State must provide [child support enforcement] services free of charge to AFDC [now TANF] recipients and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments.” Id. at 333, 117 S.Ct. at 1356, 137 L.Ed.2d at 577-78. Such compliance requires the state “IV-D agency to provide child support enforcement services to any child for whom application is made.” Id. See 42 U.S.C. § 654.

In a case where a judicial order exists and upon request by a child support recipient receiving support enforcement services pursuant to § 454.425, as is the case here, § 454.496.1 allows “the obligated parent, the obligee or the division of child support enforcement” to file a motion to modify an existing child support order following a determination under § 454.400.2(13) that “modification is appropriate pursuant to the guidelines established by supreme court rule 88.01[.]” See also Kubley v. Brooks, 141 S.W.3d 21, 25 (Mo.banc 2004). Missouri’s statutory scheme establishes procedural guidelines for judicial review of the administrative order and de novo review upon a determination that a support order is not in accord with guidelines and criteria pursuant to rule 88.01. See, e.g., §§ 452.370, and 454.496; State ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 609-10 (Mo.banc 2002); Chastain v. Chastain, 932 S.W.2d 396, 397-98 (Mo.banc 1996). We find that § 454.400.2(13), RSMo 2000 conferred a right to FSD to initiate an action for modification of child support or intervene, pursuant to Rule 52.12(a). FSD’s first three points have merit.

As to FSD’s challenge to the trial court’s finding of a conflict in interest, we find insufficient evidence to establish Father’s claim that he was previously represented in a similar matter by the Attorney General. Nonetheless, § 454.513.1 provides that any attorney, prosecuting attorney or circuit attorney initiating legal proceedings on behalf of FSD shall represent FSD exclusively, and no attorney-client relationship shall exist between the attorney and any applicant for or recipient of child support enforcement services.

The cause is reversed and remanded to the trial court for it to set aside its order denying FSD’s motion to intervene and to grant said motion and otherwise proceed consistent with this opinion.

PARRISH, J., and RAHMEYER, J., concur.

      . This matter was primarily handled by a Family Court Commissioner who recommended denial of FSD’s motion to intervene to the circuit judge who entered judgment in accordance with the Commissioner's recommendation.


source: Caselaw Access Project

author: ROBERT G. ULRICH, Judge.

license: Public Domain

text:
    Elmer H. VAN DYKE, Appellant, v. LVS BUILDING CORPORATION, Respondent.
    No. WD 64833.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.

      Jeffrey L. Dull, Clinton, MO, for appellant.
    Mark T. Kempton, Sedalia, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Judge.

Elmer Van Dyke, M.D. appeals the judgment of the Pettis County Circuit Court granting LVS Building Corporation’s counterclaim for declaratory judgment, wherein the court determined the value of Mr. Van Dyke’s stock in LVS Building Corporation as of the date of his request for redemption was $230.00 per share based on the “stock price” set by the annual meeting of shareholders and not $471 per share as provided by the formula stated in the 1998 shareholder’s agreement. Because the allegations in LVS Building Corporation’s claim for declaratory relief fail to state a claim upon which relief can be granted, the judgment of the trial court is reversed and the cause is remanded to address Dr. Van Dyke’s breach of contract claim.

Facts

Dr. Van Dyke was a founder and shareholder in LVS Building Corporation (LVS). LVS was formed in 1968 with the primary purpose of owning and managing facilities for physicians to house and operate their practices. LVS’s shareholders are physicians who benefit from this primary purpose. Throughout Dr. Van Dyke’s involvement with LVS, the shareholders, he included, executed three different Buy and Sell Agreements. The last agreement was entered into on January 19, 1988. This agreement contained provisions for the redemption of shares in certain instances. These instances included death, disability, and retirement once a shareholder attained the age of 60. The 1988 agreement contained a formula for calculating an “endorsed value” of the shares. LVS shareholders voted at the annual meetings, however, on an “estate value,” “estate price,” “stock estate price,” or “stock price.”

On December 13, 2002, Dr. Van Dyke gave notice to LVS of his intent to have his stock redeemed pursuant to the 1988 agreement. At that time, Dr. Van Dyke was 65 years of age or older and owned 620 shares of stock. Dr. Van Dyke claimed his stock should be valued using the formula contained in the 1988 agreement; using the formula, Dr. Van Dyke’s shares were valued at $471.00 per share. LVS informed Dr. Van Dyke that it would redeem his shares, but it used the “stock price” set at the last annual meeting of the shareholders, which was $230.00 per share. Thus, the dispute is the value of Dr. Van Dyke’s shares, and the issue is whether the stock value should be determined by the 1998 agreement or by the “stock price” set at the annual meeting of shareholders preceding Dr. Van Dyke’s notice to redeem his shares.

Dr. Van Dyke brought suit in Pettis County Circuit Court, claiming that LVS had breached the 1988 Buy and Sell Agreement by failing to redeem his stock for the formula value expressed in the 1988 Agreement. LVS answered that the 1988 Buy and Sell Agreement had been modified by the “stock price” set at the annual shareholder meetings. LVS also counterclaimed for declaratory judgment “declaring the rights of the parties under The Agreement dated January 19, 1998 and declaring the per share value of Elmer H. Van Dyke’s stock in said Corporation as of the date of his request for redemption to be $230.00 per share.” The trial court entered judgment on LVS’s counter claim for declaratory judgment. The judgment declared that the value of Dr. Van Dyke’s stock was $230.00 per share, the “stock price” set at the appropriate annual meeting. Dr. Van Dyke timely filed his notice of appeal.

Analysis

Dr. Van Dyke presents four points on appeal, alleging that: (1) the 1988 agreement had not been modified by the annual meetings and that any evidence of modification was improperly admitted; (2) if a modification did occur, it violated the statute of frauds; (3) the circuit court’s findings were against the weight of the evidence; and (4) the circuit court erred in failing to award Dr. Van Dyke interest on any sums owed him.

The merits of Dr. Van Dyke’s points on appeal need not be addressed because the circuit court abused its discretion in granting the declaratory relief requested by LVS in that LVS’s counterclaim fails to state a claim upon which relief can be granted. Dr. Van Dyke does not challenge the sufficiency of LVS’s counterclaim; however, “the issue is inherent in every appeal and may be raised sua sponte by the reviewing court.” Preferred Physicians Mut. Mgmt. Group, Inc. v. Preferred Physicians Mut. Risk Retention Group, 916 S.W.2d 821, 823 (Mo.App. W.D.1995)(eiting Adkisson v. Dir. of Revenue, 891 S.W.2d 131, 132 (Mo. banc 1995); Grippe v. Momtazee, 696 S.W.2d 797, 798 (Mo. banc 1985)).

Under section 527.010, trial courts have the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” The trial court is afforded wide discretion in using this power. Small v. Harrah’s N. Kansas City Corp., 24 S.W.3d 60, 68 (Mo.App. W.D.2000). An action pursuant to this section “is sui generis, neither legal nor equitable, but its historical affinity is equitable and such actions are governed by equitable principles.” Preferred Physicians, 916 S.W.2d at 823. Section 527.120 states that declaratory' relief is remedial. Because of this, Missouri courts have long held that the declaratory relief power does not abolish or provide an additional existing remedy but instead addresses a deficiency or bridges a superfluity in the law. Cronin v. State Farm Fire & Cas. Co., 958 S.W.2d 583, 587 (Mo.App. W.D.1997). The purpose of a declaratory judgment is to give parties “relief from uncertainty and insecurity” and to reduce multiple lawsuits. Preferred Physicians, 916 S.W.2d at 823-24.

The declaratory judgment power “is not to be invoked where an adequate remedy already exists.” Preferred Physicians, 916 S.W.2d at 824; see also Cronin, 958 S.W.2d at 587-88 (stating that, except in unusual circumstances plainly appearing, a declaratory judgment action cannot be maintained if an adequate remedy exists, regardless of whether the adequate remedy is legal or equitable). “For the purpose of this rule, an adequate remedy exists if the plaintiff could assert the issues sought to be declared as a defense in an action brought by the defendant.” Preferred Physicians, 916 S.W.2d at 824. The Missouri Supreme Court has recognized a distinction between alternative remedies which are pending or imminent and those of a more uncertain nature. Id. (citing State v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 30 (1943)). If an action is about to begin or has begun, “it serves no sensible end to permit his adversary to appear as an equitable actor and start the proceedings for an autonomous declaration that he has a good defense to his opponent’s pending or imminent action.” Id. (quoting Terte, 176 S.W.2d at 30). If no ongoing or imminent suit exists, then a declaratory judgment action serves a useful purpose in resolving the conflict between the parties. Id. (citing Terte, 176 S.W.2d at 30); see also Northgate Apartments, L.P. v. City of N. Kansas City, 45 S.W.3d 475, 481 (Mo.App. W.D.2001)(noting that declaratory relief is more appropriate if there is not an action pending through which the parties could seek the relief sought from the declaratory judgment). “The rule barring the use of declaratory relief when an adequate remedy exists is especially applicable where the issues sought to be declared have been asserted as a defense in the same litigation.” Preferred Physicians, 916 S.W.2d at 824. In O’Meara v. New York Life Insurance Co., 237 Mo.App. 409, 169 S.W.2d 116, 122 (1943), this court held that a declaratory judgment counterclaim “has no place” in a case where identical facts have been put forth as a defense to the plaintiffs cause of action. Declaratory relief cannot become a “substitute for all existing remedies and should be used with caution.” Preferred Physicians, 916 S.W.2d at 824 (citing O’Meara, 169 S.W.2d at 122).

In Preferred Physicians Mutual Management Group, Inc. v. Preferred Physicians Mutual Risk Retention Group, 916 S.W.2d 821, 824 (Mo.App. W.D.1995), this court reasserted the O’Meara holding and held that declaratory relief was not proper in a breach of contract suit where defendant’s counterclaim requesting declaratory relief was identical to the defendant’s raised affirmative defense. This court noted that defendant had an adequate remedy in the pending breach of contract suit and reiterated that “it ‘serves no sensible end’ to allow a defendant to seek a declaration by the trial court that he has a meritorious defense to the pending action.” Id. (quoting Terte, 176 S.W.2d at 30).

A trial court has “considerable discretion” in determining whether to grant declaratory relief. Id. This court, in Millers Mutual Insurance Ass’n v. Babbitt, 790 S.W.2d 944, 945-47 (Mo.App. W.D.1990), upheld a trial court’s declaratory judgment that a victim of a car accident was not entitled to benefits under an insurance policy even though the victim could have brought a suit for recovery under the policy. This court stated that it was “no ground for reversible error that the trial court exercised its discretion to entertain the declaratory judgment action.” Id. at 947. While Millers correctly declares that a trial court may exercise its discretion to grant declaratory relief, the exercise of discretion is still subject to appellate review. Preferred Physicians, 916 S.W.2d at 824; see also Cronin, 958 S.W.2d at 588-89. The trial court’s exercise of discretion in granting declaratory relief “must be sound, based on good reason, and calculated to serve the purposes for which the legislation was enacted, particularly to provide relief from uncertainty and insecurity.” Preferred Physicians, 916 S.W.2d at 824-25; see also Cronin, 958 S.W.2d at 588-89.

Whether a trial court has abused its discretion is determined on a case-by-case basis. Preferred Physicians, 916 S.W.2d at 825. The Missouri Supreme Court has provided factors to consider when determining whether to proceed with a declaratory judgment action. Terte, 176 S.W.2d at 30; see also Preferred Physicians, 916 S.W.2d at 825 (stating that, while Terte addressed a trial court’s staying of declaratory relief, it also applies to a trial court’s granting of declaratory relief). The factors to consider when determining whether to exercise discretion to grant declaratory relief include “public policy and interest, efficiency, convenience, economy, the good or bad faith of the party bringing the declaratory judgment action,” and whether the trial court’s grant of declaratory relief will serve the purposes for which the declaratory judgment legislation was enacted. Preferred Physicians, 916 S.W.2d at 825 (citing Terte, 176 S.W.2d at 28, 30).

As elaborated, supra, “it is well settled that a declaratory judgment action will not lie where the declaration is being sought to defend against an action brought against the party seeking declaratory relief.” Brock v. Blackwood, 143 S.W.3d 47, 70 n. 6 (Mo.App. W.D.2004). This is because an adequate remedy exists in the action against which the party seeking declaratory relief is defending. Armstrong Bus. Servs., Inc. v.H&R Block, 96 S.W.3d 867, 871 n. 1 (Mo.App. W.D.2002). “This rule is especially applicable where the issues sought to be declared have been asserted as a defense in the same litigation.” Id. n. 1; see also Parshall v. Buetzer, 121 S.W.3d 548, 551-52 (Mo.App. W.D.2003). That is precisely the situation in this case. Dr. Van Dyke brought suit for breach of the Buy and Sell Agreement. LVS answered the petition, denying or admitting Dr. Van Dyke’s allegations. In the same document, LVS also asserted a counterclaim for declaratory relief. This counterclaim merely re-asserted the allegations and denials contained in the Dr. Van Dyke’s petition and LVS’s answer. LVS’s counterclaim raised no new issues and presented no new allegations.

Both parties agreed that the cause would he taken up only on LVS’s counterclaim. Dr. Van Dyke’s petition was never withdrawn or dismissed, however. Because of this agreement, trial was had on the declaratory relief counterclaim and the circuit court entered judgment only on the declaratory relief counterclaim. Dr. Van Dyke’s breach of contract action is still pending. In fact, when Dr. Van Dyke filed his appeal, this court expressed concern that a final, appealable judgment did not exist because Dr. Van Dyke’s breach of contract claim was never resolved. The court solicited appellant suggestions as to why the appeal should not be dismissed. Appellant’s suggestions included the following statements:

3.... However, since the Counterclaim was equitable in nature and involved the same issues as the Petition for Breach of Contract, the Court set the Counterclaim for a hearing reasoning that any determination under the Counterclaim would in essence resolve the issue under the Petition for Breach of Contract also.
4. The issues on the Petition for Breach of Contract and Declaratory Judgment are identical....
6. The Trial Court’s decision rendered the Petition for Breach of Contract moot.... All issues, claims, and liabilities between the parties have been adjudicated under the Declaratory Judgment action.

This confirms the conclusion that the issues for which LVS sought declaration in its counterclaim were asserted as a defense in the same litigation, namely Dr. Van Dyke’s breach of contract action.

Dr. Van Dyke and LVS’s agreement that their dispute would be taken up on LVS’s counterclaim for declaratory judgment is of no consequence. LVS’s declaratory counterclaim failed to state a claim upon which relief can be granted. The failure to state a claim is related to subject matter jurisdiction. Adkisson, 891 S.W.2d at 132. Subject matter jurisdiction cannot be waived or conferred by agreement of the parties. Noakes v. Noakes, 168 S.W.3d 589, 596 (Mo.App. W.D.2005).

As for Dr. Van Dyke’s suggestion that his breach of contract action was rendered moot by the declaratory judgment, this court notes that, as the declaratory judgment counterclaim failed to state a claim, it was a nullity. Brock, 143 S.W.3d at 70 n. 6. Thus, it does not exist and cannot render anything moot.

Conclusion

Under the circumstances of this case, the circuit court erred by ruling on LVS’s counterclaim for declaratory relief. “When a declaratory judgment claim improperly invokes § 527.010 because an adequate remedy already exists, that declaratory judgment claim fails to state a cause of action.” Preferred Physicians, 916 S.W.2d at 825 (citing Harris v. State Bank & Trust Co. of Wellston, 484 S.W.2d 177, 178-79 (Mo.1972)). The counterclaim “is a nullity and not subject to being ruled on” by the circuit court. Brock, 143 S.W.3d at 70 n. 6. Because LVS’s counterclaim failed to state a claim upon which relief can be granted, this court need not address Dr. Van Dyke.’s four points on appeal. Preferred Physicians, 916 S.W.2d at 825. The circuit court’s judgment granting LVS’s counterclaim is reversed and the cause is remanded to address Dr. Van Dyke’s breach of contract claim.

All concur.

      . As this appeal is resolved on a jurisdictional basis, the factual statement is abbreviated.

      . As will be discussed more fully, infra, the circuit court never held a trial or rendered judgment on Dr. Van Dyke's breach of contract claim; trial was held and judgment was rendered for the declaratory judgment counterclaim only.

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


author: PER CURIAM.

text:
    Benjamin SOLBERG and Jessica Solberg, Respondents, v. Bobby GRAVEN, Christie Lynn Graven, Jason Coatney, and Jamie Coatney, Appellants.
    No. 26684.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 25, 2005.

      Craig F. Lowther, Lowther Johnson, Springfield, Appellants.
    Larry K. Bratvold, Bratvold Law Firm, Springfield, for Respondents.
    Before BATES, C. J., GARRISON, J., and BARNEY, J.
   PER CURIAM.

This appeal arises from a petition brought by Respondents Benjamin Sol-berg and Jessica Solberg (“Plaintiffs”) against Appellants Bobby Graven, Christie Lynn Graven, Jason Coatney and Jamie Coatney which sought specific performance of a real estate sales contract involving land in Christian County, Missouri, and which also sought declaratory relief.

Defendants Bobby and Christie Graven (“Defendants Graven”) filed an answer and counter-claim. Prior to the taking of evidence or swearing of any witnesses, Plaintiffs voluntarily dismissed their case without prejudice. Defendants Graven then sought to proceed with their counter-claim. At that point, Plaintiffs made an oral motion to dismiss Defendants Gravens’ counter-claim for failure to state a cause of action. This motion was granted; whereupon, the trial court dismissed Plaintiffs’ action and Defendants Gravens’ counterclaim and awarded costs to Defendants Graven.

Thereafter, Defendants Graven filed a post-trial motion for the assessment of costs as well as a motion requesting the trial court to reconsider its judgment. Additionally, Defendants Graven filed a series of certified cost statements from Freeman and Associates Court Reporting Service which showed Defendants were charged a total of $1,055.00 for five depositions held in connection with the litigation at hand. Again, the trial court denied these motions. This appeal followed.

Rule 67.03 provides that “[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.” George Ward Builders, Inc. v. City of Lee’s Sum mit, 157 S.W.3d 644, 647 (Mo.App.2004). Since the trial court’s order dismissing the counterclaim of Defendants Graven did not specify that the dismissal was with prejudice, we must decide whether they have appealed from a final judgment so as to vest this Court with appellate jurisdiction. “The finality of a judgment is a jurisdictional prerequisite and it is the duty of a court sua sponte to determine its jurisdiction, and if a judgment is not final a court must dismiss the appeal.” Spence v. Spence, 922 S.W.2d 442 (Mo.App.1996). “The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable.” Rosenfeld v. Thoele, 28 S.W.3d 446, 449 (Mo.App.2000). However, there are exceptions. As our Supreme Court said in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962):

When a petition is dismissed on the ground that it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and ap-pealable. The fact that the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable.

Id. at 699. The counter-claim of Defendants Graven was dismissed for failure to state a cause of action and was a final adjudication of the sufficiency of that pleading. Thus, the judgment in the case at bar is final and appealable.

On appeal, Defendants Graven raise two points of trial court error. In their first point, they maintain the trial court erred in determining their counter-claim failed to state a cause of action for liquidated damages and attorney fees. In their second point, there are assertions of trial court error resulting from the trial court’s refusal to award their deposition costs to them. We affirm. Defendants Gravens’ first point lacks merit, and their second point seeks premature review of an issue that has not yet been decided by the trial court.

Turning now to Point One, Defendants Graven maintain the trial court erred in dismissing their counter-claim for failure to state a cause of action. Their counterclaim reads, in part pertinent to our review, as follows:

22. That the Plaintiffs have alleged that a contract was entered into between Defendants Graven.
23. That if said contract was entered into, the contract provides that the prevailing party receive 10 [percent] of the total sales price plus reasonable attorney fees.
24. Such sums should be awarded to Defendants Graven.

“When a petition is attacked by motion to, dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted.” Matt v. Burrell, Inc., 892 S.W.2d 796, 798 (Mo.App.1995). We review the petition “in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). “No attempt is made to weigh any facts alleged as to whether they are credible or persuasive.” Id. “The ruling on a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction.” Matt, 892 S.W.2d at 796.

Our review is a de novo examination of whether the petition or counterclaim invokes principles of substantive law. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003). Rule 55.05 provides, in part, that a “pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled.” “The pleadings must identify the facts upon which the plaintiffs claim rests.” Berkow-ski v. St. Louis County, 854 S.W.2d 819, 823 (Mo.App.1993); see also ITT Comm’l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993). “Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein.” Id.

We determine the trial court did not err in dismissing Defendants Gra-vens’ cause of action for failure to state a claim. This is because their allegations at paragraph 24 are unquestionably concluso-ry. There are no ultimate facts pleaded showing how and why, in the event there is a valid contract, they would be considered the prevailing party, which would thereby entitle them to attorney fees and liquidated damages. “Missouri rules of civil procedure demand more than mere conclusions that the pleader alleges without supporting facts.” Pulitzer Pub. v. Transit Cas. Co., 43 S.W.3d 293, 302 (Mo. banc 2001).

As previously related, “[m]ere conclusions by the pleader that are not supported by factual allegations are to be disregarded when considering whether a petition is sufficient to sustain dismissal for failure to state a claim upon which relief can be granted.” Sw. Bell Yellow Pages, Inc. v. Wilkins, 920 S.W.2d 544, 549 (Mo.App.1996).

In Tolliver v. Standard Oil Co., 431 S.W.2d 159, 161 (Mo.1968), our Supreme Court determined that a particular count of a petition which purported to state a cause of action against Standard Oil Company for an alleged failure to furnish a service letter was properly dismissed for failure to state a claim where the plaintiff pled, in part, that the “letter failed to state the true reason for which plaintiff was discharged from the service and employment of defendant.” The Tolliver court determined that the foregoing was “merely a conclusion and not a statement of facts showing that the pleader is entitled to relief’ and noted that the “[m]ere conclusions of the pleader not supported by factual allegations cannot be taken as true and must be disregarded in determining whether a petition states a claim on which relief can be granted.” Id. at 162.

Likewise, in Southwestern Bell, in an amended counter-claim alleging trademark infringement, defendant Wilkins, in part, “asserted he, in cooperation with SWBYP, developed and designed a distinctive trademark, namely ’772-ROOF,’ and that he was the rightful owner and user of the trademark.” SW. Bell, 920 S.W.2d at 548. The Eastern District of this Court determined that ‘Wilkins’ claim of trademark infringement predicated upon his own allegation of ‘rightful ownership’ is purely eon-clusory.” Id. at 549. The court concluded that “Wilkins’ bare allegation of ownership alone is [an] insufficient basis to support his claim for trademark infringement.” Id. Point One is denied.

In Point Two, Defendants Graven assert the trial court erred in refusing to award these defendants their deposition costs. In reviewing this point, it is important to point out the procedural history relevant to this claim of error. As noted above, the case was set for trial on October 25, 2004. Just prior to the commencement of the trial, Plaintiffs voluntarily dismissed their claims without prejudice, and the trial court then dismissed the counter-claim of Defendants Graven on Plaintiffs’ motion. Two days later, Defendants Graven filed a post-trial motion requesting the trial court, rather than the circuit clerk, assess court costs against Plaintiffs because they voluntarily dismissed their claims without prejudice. Statements certifying the deposition costs incurred by Defendants Graven were filed with the trial court on November 15, 2004. On February 23, 2005, the trial court entered its judgment in the case. The last sentence of the proposed judgment tendered by Defendants Graven stated: “As mandated by section 514.170 of the Missouri Revised Statutes, this Court hereby orders costs in the amount of $1,062.00 to be borne by Plaintiffs.” The judge lined through this language and instead wrote “cost to [Defendants].” Defendants Graven argue this action was error because it constituted a ruling that they were not entitled to recover these deposition costs from Plaintiffs. For the reasons set forth below, we do not believe this is a correct characterization of the trial court’s action.

Since Plaintiffs voluntarily dismissed their claims without prejudice before trial, Defendants Graven are entitled to recover statutory court costs from Plaintiffs. That conclusion follows from the plain language of section 514.170, which states, in pertinent part, that “[u]pon the plaintiff dismissing his suit ... the defendant shall recover against the plaintiff his costs.... ” Plaintiffs argue that we should not give effect to this language because the counter-claim of Defendants Graven was also dismissed by the trial court. This argument fails because Plaintiffs’ obligation to pay court costs arose upon the voluntary dismissal of their claims and is not dependent on Defendants Graven being the prevailing parties in the litigation. See § 514.170; Gore v. St. Anthony’s Med. Ctr., 866 S.W.2d 871, 872 (Mo.App.1993); Fisher, 814 S.W.2d at 632.

Although Defendants Graven are entitled to recover their court costs from Plaintiffs, it was not the trial court’s responsibility to determine, in the first instance, the type and amount of statutory court costs that should be assessed against Plaintiffs. That responsibility lies with the circuit clerk. The procedure Defendants Graven utilized below reflects a misunderstanding of the distinct roles played by the circuit clerk and the trial court in taxing statutory court costs.

It is the circuit clerk’s duty to tax statutory court costs. Fisher, 814 S.W.2d at 631. This duty is imposed by section 514.260, which states:

The clerk shall tax and subscribe all bills of costs arising in any cause or proceedings instituted or adjudged in the court of which he is the clerk, agreeably to fees which shall, for the time being, be allowed by law, and shall in no case allow any item or charge, unless the service for which it was made was actually performed in the cause.

When costs are definite and fixed by statute, section 514.260 imposes a ministerial duty upon the circuit clerk to tax such items as court costs. Quality Bus. Accessories, Inc. v. Natl Bus. Prod., Inc., 880 S.W.2d 333, 335 (Mo.App.1994). The mandate in section 514.260 “leaves no judicial act to be done by the trial court.” Fisher, 814 S.W.2d at 631. In other words, the trial court has no role to play in the initial taxation of statutory court costs that are definite in amount.

The only item of court costs in dispute here are deposition expenses incurred by Defendants Graven. The costs and expenses of depositions are a form of statutory court cost which the circuit clerk is required to tax upon request. See § 492.590.1; Rule 57.10(a). Deposition costs and expenses must be certified by the reporter taking the deposition. See § 492.590.2; Rule 57.10(b). In the instant matter, the record shows Defendants Graven filed with the trial court a certified cost statement from Freeman and Associates Court Reporting Service setting out all costs of depositions, whether incurred by Defendants Graven or Plaintiffs. The certified cost statements reveal that Defendants Graven incurred costs in the amount of $1,055.00. Thus, the costs which Defendants Graven seek to recover from Plaintiffs are definite in amount and fixed by statute. The circuit clerk had a ministerial duty to tax these court costs upon request. The trial court did not err in declining to tax such costs in the first instance in the judgment.

Subsequent to the filing of the appeal by Defendants Graven, they requested the circuit clerk to tax the foregoing deposition costs and expenses. The circuit clerk declined to do so. We granted Defendants Graven leave to supplement the record on appeal with documents that establish these facts. Defendants argue that the circuit clerk’s refusal to tax these costs should be corrected in this appeal. While we agree that the circuit clerk should have included in the bill of costs the certified deposition costs and expenses incurred by the Defendants Graven, we decline to address the issue on appeal because the trial court has been given no opportunity to correct the error.

The clerk’s ministerial duty to tax costs is not affected by the expiration of the time during which the trial court has control over a judgment. Quality Bus., 880 S.W.2d at 335. Once court costs are taxed by the clerk, any party may file a motion to retax costs so the trial court can review the clerk’s bill of costs. See § 514.270; Rule 77.05. In the process of retaxation of court costs, “all errors shall be corrected by the court....” § 514.270. The trial court retains jurisdiction to exercise its ministerial duty to correct errors made by the clerk in taxing court costs that do not require judicial determination or investigation. Fisher, 814 S.W.2d at 633-34. A trial court’s denial of a Rule 77.05 motion to retax costs is an appeal-able order. L.R.R. v. Christian Family Sens., Inc., 620 S.W.2d 14, 15 (Mo.App. 1981); see also § 512.020.

In sum, we cannot convict the trial court of committing error with respect to an issue the court was not asked to decide. The circuit clerk’s error in failing to tax deposition costs and expenses in favor of Defendants Graven can still be addressed below via a Rule 77.05 motion to retax court costs. The trial court should be given an opportunity to perform its ministerial duty of correcting the clerk’s bill of costs before we address the issue on appeal. Point Two is denied.

The judgment of the trial court is affirmed.

      . All references to rules are to Missouri Court Rules (2005).

      . Accordingly, Plaintiffs' motion to dismiss for lack of jurisdiction is denied.

      . In their answer to Plaintiffs' petition, now dismissed, Defendants Graven pled affirmative defenses which expressly set out that “there was no consideration paid by the Plaintiff[s] and therefore the contract was null and void, and that “the parties did not agree on the terms of the contract, and the contract thereafter expired and was null and void and of no further effect.”

      . Plaintiffs and Defendants Graven agree that this language means costs were assessed against Plaintiffs.

      . Some types of court costs cannot be taxed by the clerk because the amount of the allowance is a discretionary matter to be determined by the trial court upon judicial investigation. See, e.g., State ex rel. State Highway Comm’n v. Graeler, 303 S.W.2d 944, 947 (Mo. App.1957) (holding that the setting of reasonable compensation for the services of condemnation commissioners was discretionary for the trial court). These types of court costs must be assessed by the trial court in the first instance. Id.

        . The only court cost taxed against Plaintiffs by the circuit clerk was the $70.00 filing fee Defendants Graven had to pay to file their notice of appeal.


text:
    STATE of Missouri, Respondent, v. Brandon L. CLARK, Appellant.
    No. WD 64343.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Margaret Mueller Johnston, Asst. Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Karen L. Kramer, Asst. Attorney General, joins on the briefs, Jefferson City, MO, for Respondent.
    Karen L. Kramer, Asst. Attorney General, Jefferson City, MO, joins on the briefs for respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

Brandon Clark appeals the denial of his motion for new trial on his conviction for possession of a controlled substance with the intent to distribute, § 195.211. Clark raises one point on appeal. He challenges the trial court’s decision to allow the opinion testimony of a highway patrol officer as to drug distribution practices.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).


author: RONALD R. HOLLIGER, Judge.

text:
    Isidore SPINO, Appellant, v. Atitbhai BHAKTA, Respondent.
    Nos. WD 64245, WD 64260.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      James H. Thompson, Jr., Gladstone, for Appellant.
    Timothy Joseph Mudd, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Both parties appeal from a $25,000 reinstated default judgment in favor of Isidore Spino. Spino filed suit against Atitbhai Bhakta under Chapter 517 seeking damages for injuries sustained in a car accident. Bhakta failed to appear on the return date specified in the summons and default judgment was taken against him. After his first motion to set aside the judgment was denied by rule, Bhakta filed a post-final judgment motion seeking to have the default judgment vacated asserting the same basis as in his motion to set aside. The court granted that motion and a jury returned a verdict for Bhakta. The trial court then set aside the verdict and reinstated the default judgment but reduced it to $25,000. Because the trial court was barred from setting aside the default judgment by the doctrine of res judicata, and the limit a party can collect in a Chapter 517 action is $25,000, we find that the trial court reached the correct result and affirm the decision.

Facts and Procedural History

Spino’s personal injury lawsuit was filed in the associate division pursuant to Chapter 517 and did not request a specific amount of monetary damages. Spino eventually obtained service of summons on Bhakta, but neither Bhakta nor his attorney appeared on the return date of June 5, 2002. After Spino presented evidence, a default judgment was entered against Bhakta for $112,750. Within thirty days Bhakta moved under Rule 74.05 to have the default judgment set aside. On September 4, 2002, the trial court conditionally set aside the default judgment while expressing reservations about doing so, however, because Bhakta’s factual assertions in his motion were not sufficiently verified. The order was conditioned on Bhakta paying $900 in attorney’s fees to Spino within five days. On September 9, 2002, Bhakta attempted to mail a $900 insurance draft to Spino’s attorney, but it was misaddressed. On September 13, 2002, Bhakta filed a “Request for Hearing on Plaintiffs Refusal to Accept Attorney’s Fees and Suggestions in Support.” On the 91st day after the initial motion to set aside was filed, the trial court held a hearing and entered an order denying Bhakta’s motion that same day.

On October 18, 2002, Bhakta filed a new Motion to Vacate the default judgment and to grant him additional time in which to comply with the September 4th, 2002, order to pay attorney’s fees. That motion was filed pursuant to Rules 74.05 and 74.06 and was accompanied by an affidavit and numerous exhibits. On October 30, 2002, the trial court granted that motion and vacated the default judgment.

Subsequently, a jury trial was held and the jury returned a verdict in favor of Bhakta. Spino filed a motion for judgment notwithstanding the verdict and the trial court then set aside the verdict and the October 30, 2002, order and reinstated the default judgment reducing the award to $25,000. Both parties appeal. Because of the procedural complexity of this case, a timeline is useful. The relevant dates are as follows:

09-27-01 Petition filed by Spino
05-09-02 Alias summons served on Bhakta
06-05-02 Default Judgment entered
06-27-02 Bhakta’s Motion to Set Aside default judgment under Rule 74.05
09-04-02 Judgment conditionally set aside upon paying of attorney’s fees
09-15-02 Bhakta requests hearing on plaintiff’s refusal to accept check
09-25-05 90th day after filing of Motion to Set Aside
09-26-02 Hearing on refusal to accept attorney’s fees and Order denying Motion to Set Aside
10-18-02.1 Bhakta’s Motion to Vacate default judgment pursuant to Rules 74.05 and 74.06
10-30-02 Default Judgment Set Aside
02-20-04 Judgment entered on jury verdict
05-25-04 Order setting aside the jury verdict and reinstating default judgment

I

Bhakta first argues that the trial court erred in sustaining Spino’s motion for JNOV and entering an order setting aside the jury verdict and reinstating default judgment. Bhakta argues that the trial court was without jurisdiction to reinstate the default judgment because the trial court’s October 30, 2002, order became a final and appealable judgment thirty days later and Spino waived any right to relief from that order by failing to file a timely notice of appeal.

Spino doesn’t respond to Bhakta’s argument directly, but instead attacks the October 30, 2002, order as entered without jurisdiction. He argues that the October 30 order granted a motion (Bhakta’s October 18, 2002, Motion to Vacate Default Judgment) filed more that 90 days after Bhakta’s initial Motion to Set Aside the default judgment. Spino asserts that the trial court did not have continuing jurisdiction to enter the October 30 order setting aside the default judgment because it was entered over 90 days after Bhakta’s first motion to set the judgment aside was filed and thereby automatically denied. Rule 78.06. He contends that once Bhakta’s initial Motion became final at the expiration of 90 days (September 25, 2002) Bhak-ta’s only option was to appeal within 10 days, which he did not. Therefore, Spino claims, the trial court properly reinstated the original default judgment as it had lost jurisdiction to set it aside.

The Trial Court had the authority to entertain, but not to grant, Bhak-ta’s October 18, 2002, Motion to Vacate the Default Judgment

We first take up Spino’s argument that the trial court had no jurisdiction to enter the October 30, 2002, order because it granted a motion filed after the default judgment became final and thereby untimely. Spino asserts that the trial court has no jurisdiction to grant motions after a final judgment.

A defaulting party’s Rule 74.05(d) motion to set aside a default judgment filed before the underlying default judgment has become final is treated for purposes of appeal as an authorized after-trial motion and is deemed the equivalent of a motion for new trial, thereby extending the trial court’s control over the default judgment to 90 days from the day the motion is filed. McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 399 (Mo.App.2005). If not ruled upon within 90 days of filing the motion, the motion is deemed denied and the judgment becomes final. Klaus v. Shelby, 4 S.W.3d 635, 637 (Mo.App.1999); Rule 78.06. After the judgment becomes final on the 90th day, notice of appeal must be filed within ten days or it is untimely. Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App.2004); Rule 81.04. Additional motions filed after the judgment becomes final do not extend the jurisdiction of the trial court. Dangerfield v. City of Kansas City, 108 S.W.3d 769, 773 (Mo.App.2003) (overruled on other grounds).

In this case the 90th day after Bhakta filed his Motion to Set Aside the default judgment was September 25, 2002, and, thus, the judgment became final on that day. With the above rules in mind, Spino argues that the trial court no longer had jurisdiction to entertain any other motions. Spino asserts that Bhakta’s October 18, 2002, Motion to Vacate Default Judgment was, in essence, a motion to reconsider his original motion to set aside and could not serve to extend the jurisdiction of the trial court.

We agree that the default judgment became final on the 90th day after Bhakta filed his original motion to set aside the default judgment. The trial court was without jurisdiction to grant that motion after the 90th day. Bhakta’s October 18, 2002, Motion to Vacate, however, was an entirely different motion (one permitted to be filed after a final judgment) that the trial court, generally, would not need a jurisdictional extension to grant. Bhakta’s October 18, 2002, Motion to Vacate was filed under both Rule 74.05 and 74.06. A Rule 74.05(d) “motion to set aside default filed after the default judgment has become final is an independent action, and the circuit court’s judgment to grant or to deny that motion is independent of the underlying judgment.” Hutchison v. Vandenburg, 90 S.W.3d 229, 231 (Mo.App.2002) (emphasis added). Similarly, the trial court is free to treat a motion filed pursuant to Rule 74.06 as an independent action in equity if its substance is “sufficient to invoke the equitable powers of the court.” State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137,144 (Mo.App.2001).

As such, for the purposes of the trial court’s decision on Bhakta’s October 18 motion, it matters little whether trial court retained jurisdiction over the default judgment because the court could treat the motion as an independent action in equity. See Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985). Although the trial court lost jurisdiction over the default judgment when it became final on the 90th day after the original motion was filed, the default judgment remained susceptible to collateral attack under Rule 74.06. Thus, the trial court had the authority to entertain Bhakta’s October 18, 2002, Motion to Vacate because it could properly be treated as an independent action in equity.

Although the trial court had the authority to entertain Bhakta’s October 18, 2002, motion as an independent action in equity, the trial court erred in granting it because the issues raised were barred by the doctrine of res judicata. Spino argued in her response to Bhakta’s second motion requesting relief from the default judgment, and here on appeal, that the second motion raised no new issues not previously decided by the court in Bhakta’s initial motion to set aside. Res judicata prevents a party from re-litigating issues judicially determined in a previous action, even when the judgment was entered by default. State ex rel. Family Support Div. v. Stovallr-Reid, 168 S.W.Bd 519, 521-22 (Mo.App.2005). Res judicata only applies after a final judgment has been rendered. Dilallo v. City of Maryland Heights, 996 S.W.2d 675, 677 (Mo.App.1999). An independent action in equity cannot be used to raise issues already litigated prior to a final judgment, thus, evading the effect of res judicata. Penney v. Ozark Mountain Country Mall, Inc., 738 S.W.2d 137, 139-MO (Mo.App.1987).

Bhakta’s October 18, 2002, Motion to Vacate the default judgment raised identical issues to those raised in his initial motion to set aside: namely that the judgment should be set aside because Bhakta’s attorney missed the return date by mistake, and that Bhakta’s attorney failed to comply with the court’s conditional order because he mistakenly mailed the check for attorney’s fees to the wrong address. The initial motion to set aside was deemed denied when the trial court failed to rule before the 90th day. Rule 78.06. These issues, once raised by previous motion, cannot be relitigated even in an independent action in equity thus avoiding the effect of res judicata.

This precise issue has been discussed and decided. See Penney, 738 S.W.2d 137. In Penney, an interlocutory default judgment was entered against the defendant. Id. at 138. The defendant then moved to have the default judgment set aside and was overruled. Id. After the default judgment became final, the defendant then moved under former Rule 74.32 to have the default judgment vacated asserting the same basis alleged in the first motion to set aside. Id. at 139. The Court found that the second motion was barred by the doctrine of res judicata because it asserted the same basis that had been previously denied prior to the judgment becoming final. Id. at 140.

Similarly, here Bhakta asserted in his post-final judgment motion the same basis for relief previously denied. The doctrine of res judicata precludes him from making such an assertion. Bhakta directs us to two cases that allegedly support his claim that, after an initial denial of a motion to set aside, it is permissible to raise identical issues through an independent action in equity. See Mullins v. Mullins, 91 S.W.3d 667 (Mo.App.2002), and Thompson v. St. John, 915 S.W.2d 350 (Mo.App.1996). However, in Mullins, only one motion was filed requesting relief from a default judgment, Mullins, 91 S.W.3d at 668-69, and in Thompson, the latter action in equity raised different issues than the initial motion to set aside (that the judgment was irregular). Thompson, 915 S.W.2d at 355-56. As such, neither case is applicable to the facts of this case.

The trial court erred in granting Bhakta’s October 18, 2002, motion to vacate the default judgment, an error that it corrected (albeit for a different reason) when it reinstated the default judgment after trial. Thus, the trial court did not err in setting aside the jury verdict and reinstating default judgment. Bhakta’s Point on appeal asserting the opposite is denied.

II

Having found no error in the trial court’s decision to reinstate the default judgment, the only disputed issue remaining is whether the trial court erred in reducing the default judgment to $25,000. Preliminarily, we address whether the trial court had jurisdiction to reduce the amount of the default judgment as opposed to merely reinstating it in its original amount. A proper resolution of this issue requires a discussion of the trial court’s authority over judgments in relation to when judgments become final.

When a motion to set aside a default judgment is made and granted pri- or to the judgment becoming final, the ruling is interlocutory in nature and does not constitute a final judgment; a trial on the merits may follow. Estes v. Norwest Mortgage, Inc., 125 S.W.3d 322, 323 (Mo.App.2003). Thus, “[a]n appeal will not he from an order setting aside a default judgment within thirty days after entry of judgment because during the thirty-day period, a default judgment is within the breast of the court and not yet final.” Grooms v. Grange Mut. Cas. Co., 32 S.W.3d 618, 620 (Mo.App.2000) (internal quotation marks omitted).

However, in this case, Bhakta’s Motion to Vacate was filed and granted by the trial court after the default judgment became final. As discussed above, when a motion to set aside is filed after the default judgment has become final, “it is treated as an independent proceeding, separate and apart from the underlying judgment. The independent nature of this proceeding requires the entry of a new final judgment to invoke appellate jurisdiction.” Am. Std. Ins. Co. v. Bittick, 112 S.W.3d 55, 57 (Mo.App.2003) (citations and internal quotation marks omitted). In such a case, the trial court’s order granting or denying the motion to set aside the default judgment is itself a separately appealable final judgment assuming that all other prerequisites of appellate jurisdiction and finality are met. Popular Leasing USA Inc. v. Universal Art Corp. of N.Y., 57 S.W.3d 875, 878 (Mo.App.2001). “[T]he trial court’s power to modify a judgment ceases when the judgment becomes final.” SD Invs., Inc. v. Michael-Paul, L.L.C., 157 S.W.3d 782, 786 (Mo.App.2005).

Thus, if the Order granting Bhakta’s Motion to Vacate qualified as a final judgment, then the trial court was without jurisdiction to modify it and necessarily erred in reducing the amount of the default judgment. The order was not a final judgment, however, because all qualities of a final judgment were not met in that the order setting aside the default judgment was not denominated a “judgment.”

To qualify as a final judgment in a civil case, Rule 74.01(a) mandates that a trial court expressly denominate its ruling as a “judgment.” Peet v. Randolph, 103 5.W.3d 872, 875 (Mo.App.2003). In designating the writing a “judgment,” it must be clear from the writing that the trial court is calling the document or docket sheet entry a judgment. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). No such denomination appears on the trial court’s October 30, 2002, order setting aside the default judgment. The document is simply titled an “Order.” At the end of the document above the Judge’s signature appears the phrase: “IT IS SO ORDERED, ADJUDGED AND DECREED.” This does not qualify as a final judgment under Rule 74.01. See McDonald v. Lohman, 961 S.W.2d 126, 127 (Mo.App.1998) (document which was denominated an “Order” and which ended with a recitation “orders, adjudges, and decrees” was not a final judgment).

Finding that the trial court retained jurisdiction to modify the amount of the reinstated default judgment, we now address whether it was indeed correct in doing so. The trial court reduced the amount of the judgment on the basis that Spino’s action was filed under Chapter 517 and, thus, limited to $25,000 pursuant to section 517.110. Since this case was filed under Chapter 517, the case was handled by the associate division of the circuit court. Spino claims that the trial court erred in reducing the amount of the judgment because the legislature has granted to the associate circuit division concurrent original jurisdiction over all cases with no monetary limitations. Bhakta asserts, conversely, that all actions brought pursuant to Chapter 517 are limited to no more than $25,000, and the trial court, therefore, had no authority to enter judgment for more than such amount.

Section 478.220 outlines the jurisdictional authority of the associate circuit division and provides, essentially, that associate circuit judges have concurrent original jurisdiction of all cases heard by circuit court judges. B.C. Natl Banks v. Potts, 30 S.W.3d 220, 222 (Mo.App.2000). It states in relevant part: “Circuit judges and associate circuit judges may hear and determine all cases and matters within the jurisdiction of their circuit courts.... ” Section 478.220, RSMo 2000 (emphasis added). Spino points to the wording of section 478.220 and asserts that the plain language of the statute authorizes associate circuit divisions to enter judgment in excess of $25,000 because their jurisdiction is equivalent to the circuit court. Spino asserts that no monetary limitation on the associate circuit division’s subject matter jurisdiction exists. Spino is correct in that associate circuit judges are no longer burdened with any monetary limitation on their subject matter jurisdiction. Spino, however, misunderstands the procedural effect of filing a lawsuit under Chapter 517. Section 517.011 provides in relevant part:

The provisions of this chapter shall apply to the practice and procedure in civil cases originally filed before associate circuit judges in hearing and determining the following cases or classes of cases:
(1) Except as otherwise provided by law, all civil actions and proceedings for the recovery of money, whether such action be founded upon contract or tort, or upon a bond or undertaking given in pursuance of law in any civil action or proceeding, or for a penalty or forfeiture given by any statute of this state, when the sum demanded, exclusive of interest and costs, does not exceed twenty-five thousand dollars[.]

Section 517.011, RSMo 2000. As stated, Spino is correct that there is no jurisdictional limitation regarding the amount the associate circuit division is authorized to enter by judgment. Section 478.220, RSMo 2000. However, while a jurisdictional monetary limitation of the associate circuit division does not exist, a monetary procedural limitation on cases filed pursuant to Chapter 517 does. In other words, the monetary distinction between associate circuit divisions and circuit divisions is alive but it is not jurisdictional. The distinction lies not with what kind of division the litigants are in but, rather, what kind of action was filed. If it is filed under Chapter 517, then the recovery limit is $25,000. This procedural limitation has nothing to do with the subject matter jurisdiction of the associate circuit division, which has the authority to hear cases where the disputed amount is in excess of $25,000; just not if the case was filed pursuant to Chapter 517.

Here it is undisputed that Spino’s action was filed pursuant to Chapter 517. Recovery in an action filed under Chapter 517 is limited to $25,000. Section 517.011, RSMo 2000. Relief granted on a default judgment may not be greater than the amount demanded through the original pleadings as originally filed and served upon the defendant. Kocsis v. Kocsis, 28 S.W.3d 505, 509 (Mo.App.2000). Here, the maximum amount available under Chapter 517 was $25,000 and, thus, the trial court did not err in reducing the amount of the default judgment accordingly.

The judgment is affirmed.

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

      . We need not consider the propriety of filing successive Rule 74.05(d) motions both before and after final judgment since the motion also sought relief under Rule 74.06.

        . Compare Sanders v. Insurance Co. of North America, 904 S.W.2d 397, 401 (Mo.App. 1995) (“to the extent that [claimant] has properly pleaded an independent action in equity to set aside a judgment for fraud on the court, res judicata and collateral estoppel have no bearing on the case”). Bhakta has not pleaded fraud on the court in his second motion, however. Instead he seeks the same relief as his first Motion to Set Aside.

      . It should be noted that res judicata cannot be asserted to preclude a claim until a final judgment is rendered in the case one is using to assert res judicata. Century Fire Sprinklers, Inc. v. CNA/Transp. Ins., Co., 87 S.W,3d 408, 424 (Mo.App.2002). Similarly, one could not assert res judicata within the same case, even after it is appealed and remanded. That is not the situation here, however, as res judica-ta does apply to issues previously decided by a final judgment and later attacked by a collateral proceeding.

      .Rule 74.32 was repealed in 1988 and super-ceded by Rule 74.06. Buford v. Ray, 950 S.W.2d 666, 667 (Mo.App. 1997); Abbadessav. Tindall, 814 S.W.2d 673, 676 (Mo.App.1991).

      . The default judgment became final by rule on the 90th day after the trial court failed to rule upon the motion to set aside (September 25, 2002). Rule 78.06. Bhakta’s Motion to Vacate was filed on October 18, 2002, and granted on October 30, 2002.

      . Neither is there a docket entry indicating that the court’s order of October 30, 2002, was a "judgment.”


text:
    Terry Wayne BISHOP, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64432.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Mark A. Grothoff, Esq., Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Esq., Jefferson City, MO, for Respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Terry Bishop appeals the denial of his Rule 29.15 motion. Upon review of the briefs and the record, we find no error and affirm the judgment. We have provided the parties with a memorandum explaining the reasons for our decision, because a published opinion would have no prece-dential value.

AFFIRMED. Rule 84.16(b).

      . All rule citations are to Missouri Rules of Procedure (2005) unless otherwise noted.


text:
    STATE of Missouri ex rel. Public Counsel John B. COFFMAN, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE OF MISSOURI, a State Agency, and Its Members Kelvin Simmons, Connie Murray, Robert Clayton, Steve Gaw, and Bryan Forbis, in Their Capacity; Sprint Missouri, Inc.; and Southwestern Bell Telephone, L.P. d/b/a SBC Missouri, Respondents.
    No. WD 64737.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Michael F. Dandino, Jefferson City, MO, for appellant.
    Marc D. Poston, Jefferson City, MO, for respondent Public Service Commission.
    Kenneth A. Schifman, Overland Park, KS, for respondent Sprint Missouri, Inc.
    Paul G. Lane, Leo J. Bub, Mary Byrne MacDonald, St. Louis, MO, for respondent Southwestern Bell Telephone Company.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

The Missouri Office of the Public Counsel appeals a judgment of the Circuit Court of Cole County affirming a decision of the Missouri Public Service Commission that approved tariff revisions filed by Sprint Missouri, Inc., to increase rates for its Metropolitan Calling Area service. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    Albert J. BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64701.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      Susan L. Hogan, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Brown appeals the denial of his Rule 24.035 post-conviction relief motion. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Louis DIEBOLD, Appellant, v. TREASURER OF the STATE of MISSOURI-CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. WD 64870.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    John Richard Boyd, Kansas City, for Appellant.
    Cara Lee Harris, Springfield, for Respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge.
   ORDER

Louis Diebold (“Employee”) appeals the Labor and Industrial Relations Commission’s (“Commission”) decision that his most recent work-related injury, combined with his prior disability, resulted only in permanent partial disability, not permanent total disability. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Judgment affirmed pursuant to Rule 84.16(b).


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

text:
    Sherry M. HUBER, A Minor Child By Her Next Friend, Brianna R. BOOTHE, Plaintiff, Brianna R. Boothe Individually, Appellant, v. Brian HUBER, Respondent.
    No. WD 64672.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      Jeremiah Kidwell, Kansas City, MO, for Appellant.
    Brent Lee Winterberg, Kansas City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   JAMES M. SMART, JR., Judge.

Brianna R. Boothe appeals the judgment of the trial court in a paternity suit granting joint custody of her daughter, Sherry M. Huber, to her and the child’s father, Brian J. Huber. In the petition and at trial, allegations of sexual abuse by Brian Huber against Sherry were raised. The trial court did not make any findings of fact. The court awarded joint legal and physical custody. The court ordered Mr. Huber to pay child support. We reverse and remand for lack of findings.

Factual Background

Sherry Huber is the only child of Brianna Boothe, appellant, and Brian Huber, respondent. Ms. Boothe and Mr. Huber were never married but lived together intermittently through their ten year relationship, including a period of time after Sherry’s birth in May 2000. They separated for the final time in June 2002.

Ms. Boothe brought a petition seeking a declaration of paternity and sole custody of Sherry. Mr. Huber filed a counter-motion seeking joint custody of Sherry. A bench trial was held in May 2004. At the three-day trial, nine witnesses testified including both parents. The seven non-party witnesses included a therapist who examined Sherry; Ms. Boothe’s sister who testified to comments Sherry made to her about alleged abuse by Mr. Huber; two social workers who investigated reports of abuse against Sherry; the coordinator at the children’s advocacy center who interviewed Sherry; the assistant director at Sherry’s daycare; and a friend of both Ms. Boothe and Mr. Huber who observed an incident involving Mr. Huber, Sherry, and her daughter, Kendall Green. All seven of these witnesses testified in some manner or another about sexual abuse allegations. The Guardian Ad Litem did not testify but examined some of the witnesses.

Findings and recommendations were made by the commissioner in August 2004. The court’s judgment was handed down on September 1, 2004. The court determined that Mr. Huber was Sherry’s biological father, awarded joint legal and joint physical custody to both parents, and ordered Mr. Huber to pay child support to Ms. Boothe. The court did not make any findings related to the sexual abuse allegations. Nor did the court make any findings as to other factors related to the best interest of the child. We reverse and remand for findings.

Standard of Review

As in other court-tried cases, we will affirm the trial court’s judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Loumiet v. Loumiet, 103 S.W.3d 332, 335-36 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The trial court is afforded broad discretion in awarding child custody, and we will affirm its decision unless we are firmly convinced that the welfare of the child requires a different disposition. Id. at 336. The trial court determines what is the best interest of the child in a child custody dispute, and the court of appeals determines whether the record contains sufficient evidence to support the trial court’s assessment. Couch v. Couch, 978 S.W.2d 505, 510 (Mo.App.1998). Every case has its own distinctive features and must be reviewed in light of its own unique set of facts. Horton v. Horton, 961 S.W.2d 67, 69 (Mo.App.1997).

Analysis

Ms. Boothe raises one point on appeal, but the point raises two issues. First, the trial court erred in awarding joint custody because the decision was against the weight of the evidence, which showed that the parents could not share decision-making responsibilities. Second, the trial court erred in awarding joint custody because the decision was against the weight of the evidence, which showed that the child had been sexually abused by the father, Mr. Huber. We consider these issues in reverse order.

I.

Ms. Boothe’s second contention is that the trial court ignored the evidence of sexual abuse, and the custody decision was against the weight of this evidence. Sections 452.875.2(6) and 452.375.13 outline the procedure for the trial court with relation to assertions of abuse.

Section 452.375.2(6) reads:

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm[J

Section 452.375.13 reads:

If the court finds that domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, has occurred, the court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other family or household member who is the victim of domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, from any further harm.

While these statutes are similar, there are a couple of differences. First, section 452.375.2(6) requires a showing of a pattern of abuse while section 452.375.13 requires a showing of only a single incident of abuse. Loumiet, 103 S.W.3d at 343. Second, the mandated findings of fact and conclusions of law in section 452.375.2(6) require the court to show “(1) it is in the child’s best interests to award the abusive parent custody; and (2) the trial court’s custody and visitation orders protect the child and the parent or other family or household member who is the victim of domestic violence from any further harm.” Id. Section 452.375.13 only requires the latter. Id.

Where the parties have not agreed to a custodial arrangement, section 452.375.6 requires the court to include written findings in the judgment based on the public policy set forth in section 452.375.4. The court is to consider all relevant factors, including the factors listed in section 452.375.2(l)-(8). See § 452.375.6. In view of the public policy of the State that children should have “frequent, continuing and meaningful contact with both parents,” if the parties have not agreed to a custodial arrangement, the court shall include a finding as to the matter of frequent, continuing, and meaningful contact with the parents, and also a finding detailing the specific relevant factors that made a particular arrangement in the best interest of the child. § 452.375.6. Subsection .6 further provides that such findings must be made if the court rejects a proposed custodial arrangement offered by both parents.

A court is required to detail “the specific relevant factors that made a particular arrangement in the best interest of the child.” Davidson v. Fisher, 96 S.W.3d 160, 164 (Mo.App.2003) (citing § 452.375.6 (emphasis added)). A court is not required to discuss factors that are not relevant. State ex rel. State of Kansas Soc. & Rehab. Servs. v. R.L.P., 157 S.W.3d 268, 275 (Mo.App.2005). However, the court must make findings on the factors that are relevant. § 452.375.6 (emphasis added). The purpose for the statutory requirement to detail the factors is to allow for more meaningful appellate review. Davidson, 96 S.W.3d at 164.

This court stated in Brandow v. Brandow, 18 S.W.3d 584, 587-88 (Mo.App.2000), that whenever “the parties have not agreed to a custodial arrangement, the court is required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8), detailing the specific relevant factors that made the chosen arrangement in the best interest of the child.” Further, we stated, “the statute requires that if a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment detailing the specific relevant factors resulting in the rejection of the arrangement.” Id. at 588. If the required finding is not made, the appellate court will remand to the trial court for the findings to be made. Davidson, 96 S.W.3d at 164 (citing Brandow, 18 S.W.3d at 588).

In Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005), the parties had agreed on joint physical and legal custody, but they did not agree on the residence address for the child or on a parenting plan. The Court said;

While these may be sub-issues of custody, they were contested and required the court’s resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required.

Id. The Supreme Court reversed the judgment and remanded the case for findings. Buchanan governs this case. In view of Buchanan, we must conclude that the parties here had not “agreed to a custodial arrangement.”

In addition to general findings to determine the arrangements in the best interest of the child, “[cjompliance with the requirements of subsections 452.375.2(6) and 452.375.13 [both of which deal with assertions of abuse] is mandatory.” Dickerson v. Dickerson, 55 S.W.3d 867, 872 (Mo.App. 2001). “If the record reflects evidence of domestic violence [or abuse], the trial court must make written findings consistent with these statutory provisions.” Id. “The non-discretionary nature of these provisions reflects the legislature’s concern with the problem of domestic violence, and its resolve that the trial court should consider the existence and history of such violence in making its determination of child custody and visitation.” Id.

In this case, the trial court failed to make any findings of fact in its custody judgment, and there is no indication in the judgment that a parenting agreement was agreed upon by both parties. The failure to make findings of fact requires reversal and remand under Buchanan as the burden is upon the court to issue written findings. Buchanan, 167 S.W.3d at 702. The failure in this case to make any findings of fact related to custody hinders our review in that the transcript is filled with testimony relating to sexual abuse allegations. Each of seven non-party witnesses at trial testified in some manner or another about the allegations. “[T]he trial court was required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8) detailing the specific relevant factors that made the chosen arrangement in the best interest of the child.” Id. (quoting Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005)). The judgment not only must include findings of fact for the best interest of the child, but also must include findings related to abuse when the evidence supports it. Dickerson, 55 S.W.3d at 872.

II.

Ms. Boothe’s first issue is that the trial court erred in awarding joint custody because the decision was against the weight of the evidence, which showed that the parents could not share decision-making responsibilities. As stated above, other than when an agreed-upon parenting plan is adopted by the court, the court must provide written findings detailing the factors showing why the arrangement is in the best interest of the child. Brandow, 18 S.W.3d at 587-88. One of the factors included in the best interest analysis is “the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child.” § 452.375.2(2). The court failed to make any findings with regard to this factor, or any other factors, in the judgment. Our ability to review the judgment and consider the weight of the evidence is hindered by the lack of findings. Accordingly, we will not attempt review of this second issue in the absence of written findings based upon the factors in section 452.375.2. Speer, 155 S.W.3d at 61.

Conclusion

The judgment is reversed, and the cause is remanded. On remand the trial court shall make the required written findings in compliance with section 452.375.6, and take such other action as deemed appropriate.

ULRICH and BRECKENRIDGE, JJ., concur.

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

      .
      Section 452.375.4 provides, in relevant part: 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 ..., 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.

      .Those section 452.375.2 factors are:
      (1) The wishes of the child’s parents as to custody and the proposed parenting plan[s]

      (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their [parental] functions ...;
      (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
      (4) Which parent is more likely to allow the child ¡frequent, continuing and meaningful contact with the other parent;
      (5) The child’s adjustment to the child's home, school, and community;
      (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved.. ..;
      (7) The intention of either parent to relocate the principal residence of the child; and
      (8) The wishes of a child as to the child's custodian.

      . It should be noted that a change in Rule 78.07, effective January 1, 2005, requires that, "In all cases, allegations of error relating to the form or language of the judgment, including 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.” This rule change is not applicable in this case because the judgment was issued on August 17, 2004.


text:
    In re the ADOPTION OF O.A.A. B.S.H. and M.H., Respondents, v. J.A. (Natural Father), Appellant A.C. (Mother), Defendant.
    No. WD 64988.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Gerald F. McGonagle, Kansas City, MO, for Appellant.
    Pamela S. Garrison, Kansas City, MO, Guardian Ad Litem for Respondent, O.A.A.
    Sanford P. Krigel, Kansas City, MO, for Respondents, B.S.H. and M.H.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ORDER

PER CURIAM.

J.A. appeals the judgment terminating his parental rights with O.A.A., J.A.’s natural daughter, and granting O.A.A.’s adoption by B.S.H. and M.H., husband and wife, Respondents. On appeal, J.A. argues that the trial court erred in terminating his parental rights pursuant to section 211.447.4(2)(d) because clear, cogent, and convincing evidence that he failed to provide adequate support and care for O.A.A. was not presented.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Troy B. FAINTER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65021.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      Melinda Kay Pendergraph, State Public Defender Office, Columbia, for- Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang, Office of Attorney General, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

Troy B. Fainter appeals the circuit court’s judgment to deny his Rule 24.035 motion without an evidentiary hearing. Fainter pleaded guilty to a Class D felony of stealing a riding lawn mower. He contends that the guilty plea record failed to establish a sufficient factual basis for felony stealing because a riding lawn mower was not a motor vehicle under Section 570.030.3(3)(a), RSMo 2000. We agree and reverse the circuit court’s judgment and remand for an evidentiary hearing.

The issue in this case is whether or not the circuit court erred in refusing to grant Fainter an evidentiary hearing on his Rule 24.035 motion — not whether Fainter is entitled to relief. See Masden v. State, 62 S.W.3d 661, 664-65 (Mo.App.2001). Our review of the circuit court’s ruling on a Rule 24.035 motion is limited to determining whether or not its findings and conclusions are clearly erroneous. Rule 24.035(k). To be entitled to an evi-dentiary hearing on a motion for post-conviction relief, a movant must (1) allege facts — not conclusions — which, if true, would be the basis for relief in that they (2) establish that the movant’s case was prejudiced and (3) the facts are not refuted by the record. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). The circuit court may deny an evidentiary hearing if any of these elements is missing. Wedlow v. State, 841 S.W.2d 214, 216 (Mo.App.1992).

In his amended Rule 24.035 motion, Fainter alleged, “Movant’s guilty plea was rendered involuntary, unknowing, and unintelligent because the Court failed to comply with Rule 24.02(e) and require that a sufficient factual basis existed on the record before accepting movant’s plea to the charge of felony stealing[.]” Fainter asserted that the circuit court did not have sufficient facts from which to conclude that the riding lawn mower was a motor vehicle. We agree.

Rule 24.02(e) says, “The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” Before accepting the guilty plea, the circuit court must “determine facts which defendant admits by his plea and that those facts would result in defendant[’s] being guilty of the offense charged.” Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). If the facts presented to the court during the guilty plea hearing do not establish the commission of the offense, the court should reject the guilty plea. Holloway v. State, 989 S.W.2d 216, 219 (Mo.App.1999), overruled on other grounds by State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999).

“A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030.1, RSMo 2000. Section 570.030.3(3)(a), RSMo 2000, provides that stealing is a Class C felony if “[t]he property appropriated consists of ... [a]ny motor vehicle, watercraft or air-eraft[.]” Chapter 570, RSMo, does not define the term “motor vehicle” for the purpose of the stealing statute.

In support of its argument that a riding lawn mower is a motor vehicle, the state relies on Stonger v. Riggs, 85 S.W.3d 703 (Mo.App.2002), in which this court held that a riding lawn mower was a “motor vehicle” as that term was used in Section 304.012, RSMo 2000. The Stonger court, however, was not working without a statutory definition as we are in this case. The Stonger court noted that Section 301.010(33), RSMo 2000, defined “motor vehicle” for purposes of Section 304.012 as “ ‘any self propelled vehicle not operated exclusively upon tracks, except farm tractors.’ ” Id. at 707 (quoting Section 301.010(33)). Moreover, the court noted, Section 301.010(64) defined “vehicle” as “‘any mechanical device on wheels, designed primarily for use, or used, on highways, except motorized bicycles, vehicles propelled or drawn by horses or human power, or vehicles used exclusively on fixed rails or tracks, or cotton trailers or motorized wheelchairs operated by handicapped persons.’ ” Id. (quoting Section 301.010(64)). From these definitions, the Stonger court concluded that, because the defendant was using the riding lawn mower on a road or highway when the accident occurred, the riding lawn mower was a “vehicle.” Id. at 708; see also Covert v. Fisher, 151 S.W.3d 70 (Mo.App.2004) (golf cart was “motor vehicle” under Sections 302.010(9) and 302.010(23), RSMo 2000, because it was used on highway).

The Stonger court expressly noted, however, that “several statutes ... separately define ‘motor vehicle’ for various purposes, and what may be considered a ‘motor vehicle’ for one statute may not be considered a ‘motor vehicle’ for another.” 85 S.W.3d at 708. Indeed, the Supreme Court, in Trailiner Corporation v. Director of Revenue, 783 S.W.2d 917, 921 (Mo. banc 1990), noted that its “perusal of [the] statutes” found that the General Assembly had defined “motor vehicle” “no less than ten times through the various chapters.” According to the Trailiner court, each definition “differs to meet the discrete goals addressed during adoption of the several statutes.” Id.

The state asserts that the purpose of the stealing statute is to deter and to punish theft of “any motor vehicle” and that the term should be read to mean “every motor vehicle, including riding lawn mowers, golf carts, tractors or even Zam-bonis.” As the Trailiner court noted, however, the distinct identity of a motor vehicle is its primary designed function to transport persons and things. Id. (citing State v. Harper, 353 Mo. 821, 184 S.W.2d 601, 605 (1945)). Although a riding lawn mower is designed to transport a person, its primary function is to cut grass.

Furthermore, the rule of lenity mandates that all ambiguity in a criminal statute be resolved in a defendant’s favor. State v. Harper, 855 S.W.2d 474, 479 (Mo.App.1993). Under this rule, we are to construe a criminal statute strictly against the government and liberally in a defendant’s favor. Goings v. Missouri Department of Corrections, 6 S.W.3d 906, 908 (Mo. banc 1999). “Any doubt as to whether the act charged and proved is embraced within the prohibition must be resolved in favor of the accused.” State v. Jones, 899 S.W.2d 126, 127 (Mo.App.1995). The rule of lenity applies to interpretation of statutes only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what the legislature intended. United States v. Wells, 519 U.S. 482, 499, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). Because the legislature chose not to define “motor vehicle” for the purpose of the stealing statute, we are left to guess whether it intended to include a riding lawn mower within the term “motor vehicle.”

In view of the rule of lenity and the Supreme Court’s recognition that the primary function of a motor vehicle is to transport people and things, a strict construction of the statute leads us to the conclusion that the legislature did not intend to include a riding lawn mower within the term “motor vehicle” in Section 570.030.3(3)(a). We conclude, therefore, that Fainter’s Rule 24.035 motion alleged facts warranting relief that are not refuted by the record and that he demonstrated prejudice; thus, Fainter was entitled to an evidentiary hearing. We reverse the circuit court’s judgment and remand for an evidentiary hearing.

VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge, concur.

      . Section 570.030, RSMo 2000, provides that stealing a motor vehicle is a Class C felony, not a Class D felony as charged.

      . Section 304.012.1 says, "Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.”

      . On remand, Fainter acknowledges that, if the circuit court grants him relief on his post-conviction motion, he may be sentenced to the lesser included offense of misdemeanor stealing. The lawn mower had a value of $600. Under the statute in effect at the time of Fainter's offense, stealing was a Class C felony if the value of the property or services appropriated was $750 or more. Section 570.030.3(1), RSMo 2000. The statute's value has since been amended to "five hundred dollars or more but less than twenty-five thousand dollars.” Section 570.030.3(1), RSMo Supp.2004.