text:
    Sharon E. EWANCHUK, Plaintiff-Appellant, v. Shelley MITCHELL, Defendant-Respondent.
    No. 26050.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 7, 2005.

      Steven Privette, Willow Springs, MO, for appellant.
    John Alpers, Jr., Cabool, MO (No brief filed by Respondent), for respondent.
   JEFFREY W. BATES, Chief Judge.

Sharon Ewanchuk (“Ewanchuk”) appeals from a judgment denying her claim for specific performance of an oral agreement to buy two rare Boston terrier puppies from Shelley Mitchell (“Mitchell”). The trial court denied relief because it concluded the oral agreement lacked the necessary definiteness to be enforced, in that there was “no meeting of the minds” between Ewanchuk and Mitchell concerning how the puppies were to be delivered. Ewanchuk claims the trial court should have granted her request for specific performance because all of the required elements of an enforceable contract were present, and Mitchell simply refused to deliver the puppies. We affirm because Ewanchuk’s own testimony showed that Mitchell’s decision not to deliver the puppies occurred after Ewanchuk repudiated the contract by insisting upon a mode of delivery to which she was not entitled, absent Mitchell’s agreement.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. CarrOn, 536 S.W.2d 30, 32 (Mo. banc 1976); Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). A judgment is presumed correct, and the appellant has the burden of proving it erroneous. Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Keller v. Friendly Ford, Inc., 782 S.W.2d 170, 173 (Mo.App.1990). We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). No such deference is afforded the trial court, however, when we review its conclusions of law. We independently evaluate whether the trial court properly declared or applied the law to the facts presented. Mortenson v. Leatherwood Const., Inc., 137 S.W.3d 529, 531 (Mo.App.2004); Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 899 (Mo.App.2003). Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

II. Facts and Procedural History

Ewanchuk and Mitchell are both in the business of breeding and raising registered Boston terriers. Ewanchuk has been licensed in this business for twelve years and resides in Alberta, Canada. Mitchell has been licensed in this business for three years and operates a kennel in Cabool, Missouri. Mitchell sold only puppies, and she mainly marketed her animals to brokers that purchased animals for resale to pet stores.

On January 20, 2003, one of Mitchell’s breeding females whelped two male Boston terrier puppies (“the puppies”). Rather than being the black and white color normally found in Boston terriers, the puppies were red and white in color. This made them very unique and desirable animals.

On February 20, 2003, Mitchell offered to sell the puppies by placing an ad on the internet. That same day, Ewanchuk responded to the ad by leaving a message on Mitchell’s answering machine. In the message, Ewanchuk expressed her interest in purchasing the puppies. She asked Mitchell to return the call, which Mitchell did. Ewanchuk and Mitchell had several more telephone conversations about the puppies, and Mitchell sent photographs of them to Ewanchuk. During these conversations, Ewanchuk did not commit to purchasing the puppies because they were still too young.

On March 21, 2003, Mitchell called Ewanchuk to inform her that the puppies were eight weeks old and were going to be sold to a broker the following Monday unless Ewanchuk agreed to buy them. The timing of the sale was very important to Mitchell because pet stores would not purchase puppies older than nine weeks of age, so she had to get them to a broker immediately if Ewanchuk did not buy them. Otherwise, the value of the puppies would decline because Mitchell would no longer be able to sell them to a broker or a pet store.

Mitchell initially priced the puppies at $350 each, but she agreed to sell the puppies for a total of $600 because Ewanchuk wanted to buy both of them. Ewanchuk provided Mitchell with a credit card number which was used to charge the $600 payment.

Although Ewanchuk and Mitchell were able to agree on the puppies’ price, they were unable to agree on when and how the puppies would be delivered to Ewanchuk. Because the puppies were only two months old, Ewanchuk wanted Mitchell to keep the puppies until they were three to four months old and fully vaccinated. Mitchell, however, insisted that Ewanchuk accept delivery by April 15, 2003.

Similarly, Ewanchuk and Mitchell were unable to reach any agreement concerning the mode of delivery to be used. Ewan-chuk initially wanted both puppies shipped to her by air in one container, but Mitchell would not do so. She was concerned that the puppies might fight if they were shipped together. Ewanchuk said that she would try to get her husband or son, who were both truck drivers, to come pick the puppies up from Mitchell. Ewanchuk, however, was unable to make suitable arrangements to get this done. Ewanchuk also proposed that Mitchell bring the puppies to Ewanchuk in Oklahoma while she was on a trip to Texas to pick up some other dogs. Mitchell was willing to do so, but Ewanchuk provided no definite date as to when the trip would occur. Around April 1, 2003, Ewanchuk did travel from Canada to Texas to pick up the other dogs as planned. Because Ewanchuk failed to advise Mitchell the trip was underway, the planned delivery in Oklahoma did not occur.

After these events took place, Mitchell spoke to Ewanchuk by telephone. During the call, Ewanchuk said she wanted the puppies delivered by air on April 15, 2003. On that date, Ewanchuk telephoned Mitchell to discuss shipping arrangements. In this telephone call, Ewanchuk insisted Mitchell ship the puppies together in one crate. Ewanchuk testified that “I wanted the two puppies shipped together in one kennel, and they [Mitchell and her husband] refused to do that.” Mitchell would not ship the three-month-old puppies together because she believed they “would fight and that it was not safe for the puppies to be in the same crate at that age.” Mitchell was willing to send one puppy in one crate, but Ewanchuk wanted both delivered together. Ewanchuk testified that Mitchell “repudiated” the contract during that call and said she would refund Ewanchuk’s money.

After April 15, 2003, Ewanchuk made no further arrangements to have the puppies delivered to her and had no further direct contact with Mitchell. Ewanchuk later hired an attorney, who filed suit on her behalf on May 16, 2003, seeking specific performance of the oral agreement and injunctive relief to prevent Mitchell from selling the puppies to someone else. After suit was filed but before Mitchell read the petition, she sold both puppies for $350 each to other buyers. After Ewanchuk learned the puppies had been sold, she was granted leave to file an amended petition that added a count seeking actual and punitive damages from Mitchell.

After hearing the foregoing evidence presented at trial on November 26, 2003, the trial court entered judgment for Mitchell and ordered that the $600 she had tendered into court be paid to Ewanchuk. The trial court found for Mitchell, in pertinent part, for the following reason:

[T]here was no meeting of the minds as to one of the essential terms of the contract, namely when the puppies would be shipped to the Plaintiff in Canada, and how the shipment would be arranged.... Further, a dispute arose as to whether the puppies should be shipped in one crate or two crates. Therefore, the Court finds that all of the essential terms of the contract were not agreed upon and that the Agreement lacked a definiteness necessary for its enforcement.

Ewanchuk appealed.

III. Discussion and Decision

In Ewanchuk’s single point on appeal, she claims the trial court should have granted specific performance because: (1) the required elements of an enforceable contract were present; and (2) Mitchell breached the contract by refusing to deliver the puppies. The oral agreement between Ewanchuk and Mitchell was a contract for the sale of goods within the meaning of Missouri’s version of the Uniform Commercial Code (“UCC”). See § 400.2-105(1); Central Production Credit Ass’n v. Hopkins, 810 S.W.2d 108, 114 (Mo.App.1991) (oral agreement to purchase 100 cattle was a contract for the sale of goods governed by the UCC). Therefore, this transaction in goods is governed by the law of sales found in Article 2 of the UCC, which is codified in § 400.2-101 through § 400.2-725.

In the first prong of Ewanchuk’s bifurcated argument, she contends the trial court misapplied the law by concluding that the parties’ failure to agree on the terms of delivery made their agreement too indefinite to be enforceable. We agree. We begin our analysis by noting that under the UCC, “[e]ven though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” § 400.2-204(3); see also Computer Network, Ltd. v. Purcell Tire & Rubber Co., 747 S.W.2d 669, 674 (Mo.App.1988). Here, it is clear the parties did intend to make a contract because: (1) Mitchell admitted the contract’s existence in her answer to the amended petition; and (2) she accepted full payment in advance for the puppies. See § 400.2-201(3)(b) and (c); Cargill Inc., Commodity Marketing Division v. Hale, 537 S.W.2d 667, 669 (Mo.App.1976) (defendant’s testimony constituted an admission of contract and prohibited defendant from asserting the statute of frauds as a defense). The manner and place of delivery was left unresolved by the parties’ negotiation. Because the parties failed to agree upon the terms of delivery, the UCC cured this omission for them by specifying both the time and place of delivery. Section 400.2-309(1) required that the puppies be delivered within a reasonable time. Section 400.2-308(a) required that delivery take place at Mitchell’s place of business in Cabool, Missouri.

The trial court misapplied the law by concluding that the parties’ agreement “lacked a definiteness necessary for its enforcement.” On appeal, however, we are “primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result.” Business Men’s Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). “[T]he judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Id.

The second prong of Ewanchuk’s argument is that Mitchell breached the contract by refusing to deliver the puppies. We reject this aspect of Ewanchuk’s argument. The trial court entered judgment for Mitchell after concluding the contract was unenforceable. This conclusion is correct, but for a different reason than the one upon which the trial court relied.

It is well-settled that a party is bound by his own testimony which is not corrected or explained. Taylor v. Vestal, 304 S.W.2d 820, 823 (Mo.1957); Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177, 179-80 (1915); Wuerz v. Huffaker, 42 S.W.3d 652, 658 (Mo.App.2001). At the trial, Ewanchuk testified unequivocally that she had always wanted the puppies shipped to her by air in the same container. She also testified unequivocally that, from the outset of the negotiation, Mitchell absolutely refused to do so because she believed the puppies would fight if they were shipped together. The issue about the mode of shipping came to a head during the telephone call on April 15, 2003. Ewanchuk insisted the puppies be shipped to her in one crate, and Mitchell refused. Mitchell offered to ship one dog in one crate, but Ewanchuk was adamant that she wanted the puppies shipped together. At that point, Mitchell cancelled the contract and said she would refund Ewanchuk’s money. Thereafter, Ewanchuk made no further arrangements to have the puppies delivered to her, and she never contacted Mitchell directly again.

As noted above, the parties failed to reach an agreement upon the manner and place of delivery during their negotiation. Therefore, the UCC supplied that term of the agreement by requiring Ewanchuk to pick up the puppies at Mitchell’s place of business in Cabool. Ewanchuk did not pick up the puppies by April 15, 2003. Instead, on the date delivery was due to occur, Ewanchuk insisted that Mitchell ship both puppies by air in one crate to Alberta, Canada. It was this demand which caused Mitchell’s refusal to deliver the puppies and consequent cancellation of the contract. Absent Mitchell’s agreement, the UCC did not give Ewanchuk the right to receive delivery of the puppies in this fashion.

Both by decisional law and statute, Missouri recognizes the doctrine of anticipatory repudiation. Missouri Public Service Co. v. Peabody Coal Co., 583 S.W.2d 721, 724 (Mo.App.1979); § 400.2-610. A party repudiates a contract by manifesting a positive intention not to perform by words or conduct. Gateway Aviation, Inc. v. Cessna Aircraft Co., 577 S.W.2d 860, 862 (Mo.App.1978). Section 400.2-610 states in pertinent part that, “[w]hen either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may ... (b) resort to any remedy for breach (section 400.2-703 or section 400.2-711).... ” Upon a buyer’s repudiation of the contract, in whole or in part, one of the seller’s available remedies is cancellation of the contract. § 400.2-703(f).

Here, Ewanchuk’s own testimony demonstrated that she insisted upon a mode of delivery (both puppies in one crate) and a place of delivery (Alberta, Canada, via air transportation) to which Mitchell had not agreed and to which Ewanchuk was not entitled under the UCC. After making this impermissible demand, Ewanchuk also testified that she never contacted Mitchell directly again and made no further arrangements to have the puppies delivered to her.

Thus, Ewanchuk’s trial testimony, by which she was bound, proved that she repudiated the contract on April 15, 2003. Since the puppies were then 12 weeks old, Ewanchuk’s repudiation impaired the value of the contract to Mitchell because she could no longer sell the puppies to a broker or pet store. Based on this repudiation, Mitchell was authorized to cancel the contract, which she did. See Scullin Steel Co. v. Paccar, Inc., 708 S.W.2d 756, 761 (Mo.App.1986) (because buyer repudiated contract, the value of the contract to seller was impaired and seller was entitled to resort to statutory remedies for breach found in § 400.2-703).

In conclusion, the trial court properly denied Ewanchuk’s request for specific performance and other relief because the contract was unenforceable. The reason the contract was unenforceable, however, was because it had been cancelled by Mitchell after repudiation by Ewanchuk. Although the trial court did not rely on the doctrine of repudiation as the basis for its decision, we may do so to uphold the judgment based on the record before us. See Fesperman v. Silver Dollar City, Inc., 796 S.W.2d 384, 387-88 (Mo.App.1990). The judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J„ Concur.

      . Under the objective theory of contracts applied in this state since 1892, the stress is on the outward manifestation of assent made to the other party, in contrast to the older idea that a contract represented a true meeting of the minds. Brock v. Blackwood, 143 S.W.3d 47, 59-60 (Mo.App.2004). This outward manifestation of mutual assent to the essential terms of the contract is more accurately described as "mutuality of agreement.” Arndt v. Beardsley, 102 S.W.3d 572, 575 (Mo.App.2003).

      . All references to rules are to the Missouri Rules of Civil Procedure (2004).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . During Ewanchuk’s direct examination, she testified that, "I also wanted them shipped together because up until the puppies are six months old, they can go together in the same kennel, and this she refused to do; even at that time, she refused to ship them at that time together. And I kept trying to get her to do that, and she absolutely refused."

      . Mitchell testified that Ewanchuk did not call at any time during the trip because she claimed to have lost Mitchell’s telephone number. This number, however, was listed in the phone book.

      . The puppies were sold to other buyers on May 17 and May 30, 2003. One of the purchasers was Colleen Whittington, who worked for Ewanchuk's attorney. Whittington surreptitiously purchased the puppy for Ewan-chuk, and she now has possession of this dog.

      . Mitchell had tried to credit the $600 purchase price back to Ewanchuk's credit card, but Mitchell no longer had the credit card number. At trial, Mitchell tendered a cashier’s check made out to Ewanchuk in the amount of $600, which the trial court accepted pending its resolution of the dispute.

      .All references to Missouri statutes are to RSMo (2000).

      . That Mitchell testified to a somewhat different account of the events occurring on April 15, 2003, is immaterial. If a party testifies "unequivocally and understandingly to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding.” Hecker v. Schwartz, 426 S.W.2d 22, 25 (Mo.1968). See also Steward v. Baywood Villages Condominium Ass’n, 134 S.W.3d 679, 683 (Mo.App.2004) (if a party testifies to facts within his or her own knowledge that defeat his or her case, that party cannot rely on contradictory testimony to make a submissible case).


source: Caselaw Access Project

author: HAROLD L. LOWENSTEIN, Judge.

license: Public Domain

text:
    Edward REDD, Respondent, v. EARL HENDERSON TRUCKING/TTC OF ILLINOIS, Appellant.
    No. WD 63808.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    William F. Ringer, Kansas City, MO, for Appellant.
    Robert W. Hill, Springfield, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Edward L. Redd (“Claimant”) slipped and fell while at work and was ultimately rendered paraplegic. Although he sought worker’s compensation, the Administrative Law Judge denied benefits reasoning that Claimant’s injury did not arise out of or in the course of his employment. The Labor and Industrial Relations Commission (“Commission”) reversed this decision, awarding Claimant permanent total disability benefits and past and future medical expenses. This appeal follows.

Facts

Claimant was an over-the-road trucker for Earl Henderson Trucking (“Employer”). On June 22, 1999, Claimant slipped and fell on a wet surface while at work and landed on his tailbone. He was unable to get up for fifteen or twenty minutes and experienced a never-felt-before vibration sensation in his legs. Although there were no witnesses to the accident, Claimant’s co-driver later observed him having difficulty walking and standing on his feet.

In the days after his fall, Claimant’s condition progressively worsened. He began experiencing pain and swelling in his lower extremities; he also developed foot drop, as his lower extremities were not working properly. On three different occasions following June, 22, 1999, Claimant’s legs “collapsed” from under him, each time causing him to fall. Claimant was not able to get up and walk following his third fall.

Although Claimant timely notified Employer of his injury, Employer never authorized or provided any treatment. Instead, it continued to send him on trips and promised to locate a doctor or hospital near his next driving destination. After sustaining his third and final fall on October 21, 1999, however, Claimant’s co-driver took him to the David Grant Air Force Medical Center. Claimant told both a nurse and the initial intake doctor that he first fell on June 22, 1999, and had fallen on three subsequent occasions due to his legs collapsing. He did not report any previously existing conditions that could have caused or contributed to his accident.

Claimant ultimately became paralyzed, and was rendered permanently and totally disabled. Due to his paralysis, Claimant is wheelchair-bound and unable to provide daily care for himself. Claimant’s driving partner and friend now cares for him at his home.

Claimant sought additional treatment from Dr. David Lay at the Veteran’s Administration Outpatient Clinic in Mt. Vernon, Missouri, beginning in April of 2001. Dr. Lay reported that Claimant slipped and fell on a wet surface while at'work. He opined that, as a result, Claimant sustained spinal cord damage that may have been successfully treated had he received prompt medical attention. A MRI film, ordered by Dr. Lay, revealed the progression of instability in Claimant’s thoracic spine and further cord compression.

On February 14, 2002, Dr. David G. Paff, a medical doctor specializing in occupational medicine, evaluated Claimant and held the same opinion as that of Dr. Lay. Doctor Paff stated that Claimant’s June 22, 1999, fall caused a burst compression fracture of the T5 vertebrae, causing progressive neurological symptoms eventually resulting in his paralysis. He also believed Claimant became paraplegic as a result of not treating the fracture soon enough.

Claimant’s request for workers’ compensation benefits was denied by the Administrative Law Judge, reasoning that Claimant’s injury did not arise out of and in the course of his employment. The Commission reversed this decision and awarded Claimant permanent total disability benefits, past due medical expenses, and future medical care. Employer now appeals.

STANDARD OF REVIEW

An appellate court must sustain the Commission’s decision when, considering the record as a whole, there is “sufficient[,] competent and substantial evidence to support the award.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). Only when “the award is contrary to the overwhelming weight of the evidence” is this standard not met. Id. at 223.

Analysis

In Employer’s first point on appeal, it contends that the record contained insufficient evidence for the Commission to determine that Claimant sustained a compen-sable accident. Specifically, it relies on the fact that Claimant’s medical records from the different facilities at which he was treated do not specifically include the word “slipped” with regard to his June 22, 1999 fall. Employer further claims that Claimant’s inconsistent explanations for this omission were not credible. Based on these facts, Employer argues that Claimant merely suffered an injury while working, rather than one that was exacerbated by his workplace. This court disagrees.

The record, viewed as a whole, contains sufficient evidence to support a finding that Claimant’s injury was job-related. In addition to Claimant’s own testimony, his co-driver and live-in Mend testified that she observed him stagger after his initial faE — a behavior she had never observed in the five years she drove with him. Moreover, both Claimant’s treating physician, Dr. Lay, and evaluating physician, Dr. Paff, believed his condition resulted from a faU that fractured his T5 vertebrae. The existence of this fracture was also confirmed by an objective MRI report.

Although the records from the various facüities where Claimant presented never specifically documented his injury as the result of slipping and falling at work, Claimant testified that his medical history was recorded incorrectly. In this matter, the Commission is the judge of credibEity, and this court may not substitute its judgment for that of the Commission. Also, any doubt regarding witness credibEity “should be resolved in favor of the employee” and in favor of workers’ compensation coverage, Tate v. Southwestern Bell Tel. Co., 715 S.W.2d 326, 328 (Mo.App.1986).

Employer next contends that the Commission faEed to follow the apphcable evi-dentiary standard that statements given to medical health care providers pertinent to diagnosis and treatment are presumed to be inherently trustworthy. In its report, the Commission stated that “[tjhere is not evidence that these records are reliable or accurate in recording Claimant’s history.” Employer thus argues that the Commission misapplied the law by not affording proper weight to the alleged omissions in Claimant’s records. However, Employer takes the Commission’s language out of context.

The Commission’s comment could more accurately be described as “merely ... a comment of the evidence.” See Gassen v. Lienbengood, 134 S.W.3d 75, 82 (Mo.App.2004). Although Claimant’s medical records did not specifically contain the word “shpped,” neither does the Commission’s decision contain any language to suggest it did not give the records due weight. To the contrary, the Commission’s decision references the testimony of Doctors Lay and Paff who both concluded that Claimant’s paralysis resulted from his initial fall. Claimant also testified that he told the individuals who obtained his medical history at each of the faciEties the nature of his fall and that their failure to include such information was merely a recording error. Because “[a] claimant’s credible testimony as to work-related functioning can constitute competent and substantial evidence,” Hampton, 121 S.W.3d at 223-24, the omission from his records could, at most, be viewed as contradictory evidence. Even were the Commission’s statement viewed as true, therefore, it did not misapply the law, but rather chose between competing evidence. Point denied.

In Employer’s final point on appeal, it argues that Claimant faEed to meet his burden of proof that his fall arose “out of and in the course of’ his employment by competent and substantial evidence. Employer argues that Claimant attempts to satisfy this burden only through his own “self-serving” testimony that the injury was sustained as a result of a shp and fall on a wet surface. As discussed above, the record contains corroborating evidence provided by (1) the testimony of his co-driver, (2) the medical reports of Dr. Lay, (3) the medical deposition and report of Dr. Paff, and (4) the objective diagnostic MRI reports that confirmed the burst compression fracture. Because this evidence satisfies Claimant’s burden, the Commission’s award is affirmed.

Conclusion

The award of workers’ compensation benefits must be affirmed, even amidst conflicting evidence, when the record as a whole contains sufficient, competent, and substantial evidence to support the award. Because the record here contains the testimony of Claimant’s co-driver, treating physician, and evaluating physician — all corroborating his testimony that he was injured in the course of his employment— the award must stand.

The judgment is affirmed.

All concur.


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Teddy COLLINS; Eddie Collins, Appellants.
    Nos. WD 63517, WD 63518.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      Patrick W. Peters, Kansas City, MO, Robert Lee Knapp, Independence, MO, for Appellants.
    James David McConnell, Shelbyville, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   EDWIN H. SMITH, Chief Judge.

Eddie Collins (Eddie) and his son and co-defendant, Teddy Collins (Teddy), appeal the judgments of their convictions, after a jury trial, of assault in the third degree, § 565.070. They were both charged with assault in the first degree, § 565.050, but were acquitted by the jury of that offense and the lesser-included offense of assault in the second degree, § 565.060.

In their joint brief on appeal, the appellants raise three claims of error. In Point I, they attack both of their convictions, while in Point II Teddy attacks his conviction and in Point III, Eddie attacks his conviction. In Point I, the appellants claim that the trial court erred in overruling their motions for judgment of acquittal, at the close of the State’s evidence, on the charge of assault in the first degree, because the State failed to make a submis-sible case as to that offense by faffing to show, as required, that they caused serious physical injury to the victim. In Point II, Teddy claims that the trial court erred in instructing the jury, as to him, on the offense of assault in the third degree because it was. not charged in the amended information and was not a lesser-included offense of the charged offense, assault in the first degree. In Point III, Eddie makes the same claim of error, with respect to his conviction, as Teddy makes in Point II as to his conviction.

We dismiss.

Facts

On February 13, 2003, the appellants were charged in the Circuit Court of Shelby County, by way of amended information, with assault in the first degree, § 565.050. The State alleged that “on or about November 13, 2002, ... the [appellants] knowingly caused serious physical injury to James E. Barry by striking him with their hands or feet.”

The appellants’ cases were consolidated for trial and proceeded to a jury trial on September 25, 2003, in the Circuit Court of Randolph County, following a change of venue. The sole witness called by the State to testify was the victim. He testified that on November 13, 2002, the appellants appeared at his residence, demanding that he apologize to Ida Collins, Eddie’s wife and Teddy’s mother, in regard to a dispute that had occurred earlier that day. The dispute between the victim and Mrs. Collins arose over the victim’s supervision of a sewer line replacement project that necessitated a city crew doing work on the Collins’ property. The victim was employed by the City of Clarence as its City Superintendent.

The victim testified that when he refused to apologize to Mrs. Collins, Teddy poked him in the chest and said, “If you ever set foot off this place, I’ll get you.” According to the victim, he then walked across the porch and into his lawn in an attempt to leave his residence, at which time Eddie grabbed him by the coat, shook him, and threw him to the ground. When asked by counsel what happened next, the victim answered that he wasn’t sure, but he “got hit, or kicked, two or three times[,]” and that, as a result, several bones under his eye were broken and his skull was fractured. However, he was unable to testify as to who hit or kicked him after Eddie had thrown him to the ground.

The appellants moved for judgment of acquittal at the close of the State’s evidence and again at the close of all the evidence. The trial court denied both motions.

The jury was instructed on first, second and third degree assault as to both Teddy and Eddie. The verdict directors submitting both first and second degree assault mirrored the language set forth in the amended information as to the criminal acts alleged; Hence, as to first and second degree assault, the jury was instructed that it should convict the appellants if it believed beyond a reasonable doubt that they either knowingly, for first degree assault, or recklessly, for second degree assault, “caused serious physical injury to James E. Barry by striking him with [their] hands or feet.” As to third degree assault, however, the language of the verdict director alleged different acts than those alleged as to first and second degree assault. In that regard, the jury was directed, in Instruction No. 15, that it should convict Teddy of assault in the third degree if it believed beyond a reasonable doubt that he “knowingly caused physical contact with James E. Barry by poking him with his finger, knowing that James E. Barry would regard such contact as offensive or provocative.” As to Eddie, the jury was directed, in Instruction No. 9, to convict if it found beyond a reasonable doubt that he “knowingly attempted to cause physical injury to James E. Barry by grabbing his coat with his hands and shaking him.”

On September 26, 2003, the jury returned its verdicts, finding Teddy and Eddie guilty of third degree assault, but acquitting them of first and second degree assault. On October 14, 2003, the appellants filed a joint motion for judgment of acquittal or in the alternative, for a new trial, alleging, inter alia, that the trial court erred in instructing on third degree assault, as “neither of [the assaults referenced in the instructions] are lesser included offenses of the assault specifically charged by the State — hitting and kicking Mr. Barry causing serious physical injury.” The motion was overruled.

On November 12, 2003, the trial court sentenced the appellants. In its form judgment entry, the trial court indicated that Teddy had been convicted of assault in the third degree, a class A misdemean- or, for which he was sentenced to fifteen days in the county jail. As to Eddie, the court’s form judgment entry indicated that he had been convicted of assault in the third degree, a class C misdemeanor, for which he was sentenced to sixty days in the county jail.

This appeal followed.

I.

Before addressing the merits of the appellants’ claims of error, we first address the obvious discrepancies between the trial court’s judgment entries as to the crimes of which the appellants were convicted and the guilty verdicts that the record reflects were returned by the jury and on which the appellants were sentenced. Because this issue was not briefed by the parties, we review it for plain error, in accordance with Rule 30.20.

Rule 30.20 provides, in pertinent part, that “[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed a “plain” error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain” error for purposes of Rule 30.20 is error that is evident, obvious and clear. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Id. As in the case of our review for “regular” error, not every obvious error found in plain error review mandates reversal. Carr, 50 S.W.3d at 853. In the case of review for “regular” error, to be reversible, the found error must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of review for plain error, the error found must have prejudiced the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

In its form judgment entry, the trial court found that Teddy was convicted of assault in the third degree, a class A misdemeanor, and sentenced him to fifteen days in jail. However, the jury, in its verdict, found Teddy guilty “as submitted in Instruction No. 15,” which hypothesizes acts constituting the class C misdemeanor of assault in the third degree, in accordance with § 565.070.1(5). Section 565.070.1(5) reads: “1. A person commits the crime of assault in the third degree, if: ... (5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative[.]” Section 565.070.3 provides that a “person who violates the provisions of subdivision (3) or (5) of subsection 1 of this section is guilty of a class C misdemeanor.” Instruction No. 15 parrots § 565.070.1(5), instructing the jury that it should convict Teddy of assault in the third degree if it believed beyond a reasonable doubt that he “knowingly caused physical contact with James E. Barry by poking him with his finger, knowing that James E. Barry would regard such contact as offensive or provocative.” Thus, contrary to what the trial court found in its judgment entry, the record clearly demonstrates that Teddy was found guilty by the jury of the class C misdemeanor of assault in the third degree, not the class A misdemeanor of assault in the third degree.

As to Eddie, the trial court, in its form judgment entry, found that he had also been convicted of the class C misdemeanor of assault in the third degree and sentenced him to sixty days in the county jail. Of course, such a sentence exceeds the maximum jail sentence allowed for a class C misdemeanor, which is fifteen days. § 558.011.1(7). Hence, either the sentence of sixty days in jail was in error, or the trial court’s finding that he was convicted of a class C misdemeanor was in error. The record would support the latter.

The record reflects that the jury found Eddie guilty of assault in the third degree, as instructed in Instruction No. 9. Instruction No. 9 directed the jury to convict Eddie of assault in the third degree if it found beyond a reasonable doubt that he “knowingly attempted to cause physical injury to James E. Barry by grabbing his coat with his hands and shaking him.” This language mirrors the language of § 565.070.1(1), which reads: “A person commits the crime of assault in the third degree if: (1) The person attempts to cause or recklessly causes physical injury to another person.” A violation of § 565.070.1(1) is a class A misdemeanor. § 565.070.2. Hence, it is apparent that the jury found Eddie guilty of a class A misdemeanor of assault in the third degree, not a class C misdemeanor as found in the trial court’s judgment. This, of course, would be consistent with Eddie’s sentence of 60 days in jail. A class A misdemeanor is punishable by jail sentence up to one year. § 558.011.1(5). Given this fact, it is readily apparent that the trial court, in its form judgment entries, mistakenly switched the class of misdemeanor of which each appellant was found guilty.

As a general rule, where there is a material discrepancy between the oral pronouncement of the trial court’s judgment and sentence, and the written judgment entry, the oral pronouncement controls. State v. Patterson, 959 S.W.2d 940, 941 (Mo.App.1998). In this case, we do not know what the oral pronouncement of the trial court was as to the appellants’ convictions and sentences in that they did not include that in the record on appeal. However, because a “judgment derives its force from the rendition of the court’s judicial act and not from the ministerial act of its entry upon the record,” id., and it is crystal clear from the record, as we discuss, supra, that the trial court erred in entering its judgments of conviction and sentences as to both appellants, the trial court’s judgment entries were in error as to the class of misdemeanor of which each appellant was convicted. Hence, in reviewing the appellants’ claims, we review on the premise that Eddie was convicted of the class A misdemeanor of assault in the third degree, not a class C misdemeanor as stated in the trial court’s judgment entry, and that Teddy was convicted of the class C misdemeanor of assault in the third degree, not a class A misdemeanor.

II.

In Point I, the appellants claim that the trial court erred in overruling their motions for judgment of acquittal, at the close of the State’s evidence, on the charge of assault in the first degree, because the State failed to make a submissi-ble case as to that offense. Specifically, they claim that the State failed to show, as required, that they caused serious physical injury to the victim.

The review of a trial court’s denial of a motion for judgment of acquittal is the same as reviewing a claim that there was insufficient evidence to convict the defendant of the charged offense. State v. Bass, 81 S.W.3d 595, 614 (Mo.App.2002). Our standard of review in a criminal appeal challenging the sufficiency of the evidence is set forth in State v. Johnson, 62 S.W.3d 61, 69-70 (Mo.App.2001) (quoting State v. O’Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993)):

A challenge to the sufficiency of the evidence to support a finding of guilt is based in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. No person may be deprived of liberty, ‘except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.’ The constitutional sufficiency of the evidence is a question of law to be determined, in the first instance, by the trial court on proper motion by the defendant and again on appeal.
When properly raised by the defendant, the question of sufficiency arises before the case is put to the jury; the challenge is to the ‘submissibility’ of the case. Therefore, any guilty verdict subsequently rendered by the jury is wholly irrelevant to the question of whether the case was sufficient to go to the jury at all. The Court’s review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt. To ensure that the reviewing court does not engage in futile attempts to weigh the evidence or judge the witnesses’ credibility, courts employ ‘a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged. Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored.

The record reflects that the appellants were acquitted of assault in the first degree, as well as assault in the second degree. Logically, “an accused has no standing to complain as to insufficiency of evidence to support a charge on which he has been acquitted.” State v. Witt, 684 S.W.2d 906, 909 (Mo.App.1985). Thus, the appellants are “not aggrieved by the court’s submission to the jury of the [first degree assault charge] because [they] were acquitted of that offensef,]” and, therefore, have no standing to raise the claim of error in this point. Id.

Point dismissed.

III.

In Point II, Teddy claims that the trial court erred in instructing the jury, as to him, on the offense of assault in the third degree because it was not charged in the amended information and was not a lesser-ineluded offense of the offense that was charged, assault in the first degree. Specifically, he claims that the offense of assault in the third degree, as submitted to the jury in Instruction No. 15, was not a lesser-included offense, subject to submission without being charged in the information, of the offense of assault in the first degree, as charged in the amended information, in that the criminal acts hypothesized in Instruction No. 15 were separate and distinct from the criminal acts alleged in the amended information, charging the appellant with assault in the first degree. In claiming as he does, Teddy points out that in charging him with first degree assault the State alleged in the amended information that he “knowingly caused serious physical injury to James E. Barry by striking him with [his] hands or feet,” while in the verdict director submitting assault in the third degree, the jury was instructed to find him guilty of that offense if it believed, beyond a reasonable doubt, that he “knowingly caused physical contact with James E. Barry by poking him with his finger, knowing that James E. Barry would regard such contact as offensive or provocative.” (Emphasis added.)

The Sixth Amendment of the U.S. Constitution and article I, section 18(a) of the Missouri Constitution require that a criminal defendant be given notice of the charge or charges against him to allow him the opportunity to adequately prepare a defense. State v. Reese, 687 S.W.2d 635, 636-37 (Mo.App.1985). The charging instrument, the information or indictment, serves that purpose. Id. Thus, as a general rule, due process mandates that a criminal defendant may not be convicted of an offense not expressly charged in the information or indictment. State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999); State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979). A statutory exception to this rule is found in § 556.046, providing that a defendant may be convicted of a lesser-included offense of the offense charged in the indictment or information, the rationale being that, for purposes of due process, a defendant is considered to have notice of included offenses of the offense charged. State v. Hibler, 5 S.W.3d at 150; State v. Wilkerson, 616 S.W.2d 829, 833 (Mo. banc 1981). Here, the State is claiming that the lesser-included offense exception of § 556.046 applies such the trial court was correct in submitting to the jury the offense of assault in the third degree, in Instruction No. 15, even though it was not charged in the amended information.

In our case, the roles of the parties are reversed from what we would normally expect. As a practical matter, in a criminal case, usually it is the State, not the defendant, arguing for multiple offenses on which the defendant can be charged, prosecuted and convicted, in accordance with § 556.041, and are not included offenses, as defined in § 556.046, for which there can only be one conviction. Here, however, given the procedural posture of the case, it is the defendant arguing that the offenses in question are not included offenses, but separate offenses. This is so in that, because the State did not charge the appellant in the amended information with assault in the third degree, as a separate offense, it could only get to the jury and convict on that offense if it were a lesser-included offense of the offense actually charged in the amended information, assault in the first degree.

As noted, supra, pursuant to § 556.046.1, a defendant may be convicted of an offense not charged in the indictment or information if it is an included offense. And, the trial court is obligated to instruct on an included offense provided “there is a basis in the evidence for acquitting the defendant of the immediately. higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense.” § 556.046.3. An offense is considered an included offense for purposes of § 556.046 when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.

§ 556.046.1. Teddy concedes that, pursuant to § 556.046.1(2), the offense of assault in the third degree, § 565.070, is an included offense of assault in the first degree, § 565.050. § 556.046.1(2); see also State v. Hostetter, 126 S.W.3d 831, 835 (Mo.App.2004). Nonetheless, he contends that as submitted to the jury in Instruction No. 15, the offense of assault in the third degree was not an included offense of the offense of assault in the first degree, as charged in the amended information, in that the charged offense did not involve the same criminal conduct as the purported lesser-included offense submitted to the jury such that it was a separate offense.

In claiming as he does in this point, Teddy is contending that the first sentence of § 556.046.1: “A defendant may be convicted of an offense included in an offense charged in the indictment or information.” (emphasis added), should be read as requiring that the included offense be based on the same criminal conduct alleged in the information or indictment as to the charged offense. The Missouri Supreme Court confirmed in State v. Hibler, 5 S.W.3d at 150, that this is, in fact, the law, stating:

The key language of Missouri’s section 556.046 tracks section 1.07(4)-(5) of the Model Penal Code. The drafters of the Code adopted the majority rule:
The majority rule ... is that a lesser crime is an included offense when it consists of legal elements which must always be present for the greater crime to have been committed in the manner in which the greater crime is charged in the accusatory pleading.

0Quoting Jerrold H. Barnett, The Lesser-included Offense Doctrine: A Present Day Analysis For Practitioners, 5 Conn. L.Rev. 255, 291 (1972)) (emphasis added) (cited in AmeRican Law Institute, Model Penal Code and Commentaries, sec. 1.07, at 130 & n. 109 (1985)). In other words, for an offense of a lesser degree to be an included offense, for purposes of § 556.046, it must be based on the criminal conduct that is alleged in the information or indictment as to the greater/charged offense. If this were not the law, a jury, pursuant to § 556.046.1(2), could be instructed on assault in the third degree, as a lesser-included offense of the charged offense of assault in the first degree, even though the criminal conduct alleged as constituting assault in the third degree occurred at a different time and place than the conduct alleged as to the greater/charged offense. That would be an absurd result and defy the concept of a lesser-included offense, as we know it.

The State, in opposition to Teddy’s claim of error in this point, rather than arguing for a different interpretation of § 556.046.1 than that urged by Teddy, contends that the criminal conduct, “poking James E. Berry with his finger and threatening him,” which was alleged in its verdict director submitting assault in the third degree, “was part of the overall Felony Assault [assault in the first degree] charged and instructed upon” such that the requirement of § 556.046.1, that the included offense be based on the criminal conduct of the charged offense, was satisfied. In that regard, the State contends that “[t]his act [Teddy’s poking the victim with his finger] was one of a series of events that Teddy Collins and his co-defendant father, Eddie Collins, wherein they assaulted James E. Barry with their hands and feet.” In other words, the State is contending that any criminal act associated with the “overall” assault charged in the amended information, assault in the first degree, is part and parcel of the “same conduct” alleged as to the charged offense, for purposes of § 556.046.1, and therefore, constitutes a lesser-included offense. Accepting this argument would mean, however, that, pursuant to § 556.041(1), only one conviction could be obtained as to the sum total of all the criminal acts associated with the charged offense, which would mean that for purposes of § 556.041(1), we would be applying the “same transaction rule” in determining whether multiple convictions are permissible for the same criminal conduct, which rule has been routinely rejected by our appellate courts.

The “same transaction rule” prohibits multiple convictions of the same defendant “for acts committed in a single transaction.” State v. Applewhite, 771 S.W.2d 865, 870-71 (Mo.App.1989); see also State v. Childs, 684 S.W.2d 508, 510-11 (Mo.App.1984). This rule, however, has been rejected in this state in favor of the “separate or several offense rule,” which allows a defendant to be convicted of several offenses even though they arise out of the same criminal transaction. State v. Barber, 37 S.W.3d 400, 403 (Mo.App.2001) (citing Childs, 684 S.W.2d at 510-11, and State v. Murphy, 989 S.W.2d 637, 639 (Mo.App.1999)). Under this rule, the question, in determining whether a defendant can be convicted of multiple offenses for the same conduct, is not whether the criminal acts in question are part of the same transaction, but “whether in law and fact [the] defendant has committed two separate offenses.” State v. Applewhite, 771 S.W.2d at 870-71.

As noted, supra, § 556.041 prohibits multiple convictions for included offenses. It follows then, given the separate or several offense rule, that separate offenses, even though arising out of the same criminal transaction, for which there can be multiple convictions, cannot be included offenses, for purposes of § 556.046.1. The question then for us, in determining whether the submission of third degree assault in Instruction No. 15 was permitted as an included offense of the charged offense, assault in the first degree, is whether the criminal conduct hypothesized in that instruction was the same criminal conduct alleged as to the charged offense or was different conduct, constituting a separate offense on which there could be a separate conviction.

The basic inquiry in determining whether separate criminal acts, committed in the course of the same “transaction,” constitute separate offenses subject to multiple convictions, is whether the legislature intended to punish each individual act. State v. Barber, 37 S.W.3d at 403; State v. Morrow, 888 S.W.2d 387, 390 (Mo.App.1994). In determining whether the legislature intended to permit multiple convictions, a court looks first to the “unit of prosecution” allowed by the statute or statutes under which the defendant was charged. State v. Barber, 37 S.W.3d at 403. If the unit of prosecution it is not apparent from the charging statute or statutes, recourse must be made to Missouri’s general cumulative punishment statute, § 556.041. Id.; see also State v. French, 79 S.W.3d 896, 899 (Mo. banc 2002).

Teddy was charged in the amended information with assault in the first degree in violation of § 565.050.1. It provides that a “person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” § 565.050.1. Teddy was convicted of assault in the third degree, in violation of § 565.070.1(5). It provides that a person commits the crime of assault in the third degree if “[t]he person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative[.]” § 565.070.1(5). Clearly these statutes are designed to protect against offensive or injurious contact and punish the person who would initiate or, in the case of § 565.050.1, attempt to initiate such contact. Moreover, these statutes are designed to punish each individual act of offensive or injurious contact, as each act poses a new and distinct threat of harm. See State v. Barber, 37 S.W.3d at 403-04 (holding that, in enacting § 571.030.1(4), which makes it an offense for a person to knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner, the legislature intended to permit a separate conviction for each angry display of a knife in the same fight or transaction); State v. Morrow, 888 S.W.2d at 392-93 (holding that, in enacting § 571.030.1(3), which makes it an offense for a person to knowingly discharge or shoot a firearm into a dwelling house, the legislature intended to permit a separate conviction for each shot fired into a dwelling house, even if the shots occurred in rapid fire succession). Hence, there can be no doubt that the legislature intended, pursuant to § 565.070.1(5), that the act of poking another person in the chest while threatening him would support a conviction, in and of itself, of third degree assault, and, pursuant to § 565.050.1, that the act of striking another person with one’s hands and feet, resulting in serious physical injury, would support a conviction, in and of itself, of first degree assault. Thus, Teddy’s act of poking the victim in the chest with his finger constituted a separate offense from the offense with which he was charged, first degree assault by striking the victim with his hands or feet, and not a lesser-included offense of the charged offense, such that the trial court erred, as a matter of due process, in instructing the jury on third degree assault in that it was not charged in the amended information. See State v. Pope, 733 S.W.2d 811, 813 (Mo.App.1987) (holding that, “when the [specific criminal] act was specified [in the indictment] ... the jury can convict only on that act[,] [such that an] instruction which allows them to convict of ... another [act] which is not charged cannot stand”).

A conviction based on an offense not properly charged in the charging instrument is a nullity, as the trial court acquires no jurisdiction over non-charged offenses. State v. Smith, 825 S.W.2d 388, 391 (Mo.App.1992); see also State v. Smith, 742 S.W.2d 198, 200 (Mo.App.1986) (citing State v. Brooks, 507 S.W.2d 375, 376 (Mo.1974)). Hence, because the State failed to charge Teddy in the amended information with third degree assault, based on his poking the victim with his finger, the trial court lacked jurisdiction to enter a conviction thereon, rendering its judgment purporting to convict Teddy of third degree assault a nullity, requiring the judgment of his conviction to be set aside and held for naught.

IV.

In Point III, Eddie makes the same claim of error as Teddy makes in Point II, except as to his conviction for assault in the third degree, as submitted in Instruction No. 9. In claiming as he does, Eddie points out that in charging him with first degree assault the State alleged in the amended information that he “knowingly caused serious physical injury to James E. Barry by striking him with [his] hands or feet,” while in the verdict director submitting assault in the third degree, the jury was instructed to find him guilty of that offense if it believed, beyond a reasonable doubt, that he “knowingly attempted to cause physical injury to James E. Barry by grabbing his coat with his hands and shaking him.” (Emphasis added.)

Our analysis of Teddy’s claim of error in Point II applies with equal force to Eddie’s claim of error set forth in this point. Therefore, the question for us, in determining whether the submission of third degree assault in Instruction No. 9 was permitted as an included offense of the charged offense, assault in the first degree, is whether the criminal conduct hypothesized in that instruction was the same criminal conduct alleged as to the charged offense or was different conduct, constituting a separate offense on which there could be a separate conviction.

Having determined, supra, that the legislature intended that the act of striking another person with one’s hands and feet, resulting in serious physical injury, would support a conviction, in and of itself, of first degree assault under § 565.050.1, the question becomes whether the legislature intended that the act of grabbing and shaking another person would support a conviction, in and of itself, of third degree assault under § 565.070.1(1).

Section 565.070.1(1) provides that a person commits the crime of assault in the third degree if “[t]he person attempts to cause or recklessly causes physical injury to another person[J” Clearly, in enacting this section, the legislature intended that one’s act of grabbing and shaking another person, assuming he or she was either attempting to cause physical injury, or recklessly caused physical injury, would support a conviction, in and of itself, of third degree assault. This is so in that the act of grabbing and shaking another person poses its own separate and distinct threat of harm to that person. As a result, Eddie’s act of grabbing and shaking the victim constituted a separate offense from the offense with which he was charged, first degree assault by striking the victim with his hands or feet, and not a lesser-included offense of the charged offense, such that the trial court erred, as a matter of due process, in instructing the jury on third degree assault in that it was not charged in the amended information. See State v. Pope, 733 S.W.2d at 813 (holding that, “when the [specific criminal] act was specified [in the indictment] ... the jury can convict only on that act[,] [such that an] instruction which allows them to convict of ... another [act] which is not charged cannot stand”).

Because the State failed to charge Eddie with third degree assault in the amended information, based on his grabbing and shaking the victim, the trial court lacked jurisdiction to enter a conviction thereon, and, therefore, its judgment purporting to convict Eddie of third degree assault is a nullity, requiring the judgment of his conviction to be set aside and held for naught. As noted in Point II, supra, a conviction based on an offense not charged in the charging instrument is a nullity, as the trial court acquires no jurisdiction over non-charged offenses. State v. Smith, 825 S.W.2d at 391 (Mo.App.1992).

Conclusion

Because the appellants were acquitted by the jury of first and second degree assault, and the trial court had no jurisdiction to enter convictions for assault in the third degree, in that they were not lesser-included offenses of the charged offenses and were not charged in the amended information, the trial court’s judgments of convictions of third degree assault were a nullity such that there are no convictions from which to appeal. State v. Witt, 684 S.W.2d at 909. We, therefore, dismiss and remand for the trial court to enter its order setting aside the appellants’ convictions as being nullities.

HOWARD and NEWTON, JJ„ concur.

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

      . All rule references are to Missouri Rules of Criminal Procedure 2004, unless otherwise indicated.

      . Further support for why the trial court obviously erred in its judgment entries as to the class of misdemeanor offenses of which the appellants were convicted can be found in the appellants' brief. In their brief, the appellants make numerous references to the fact that Teddy was convicted of the class C misdemeanor of assault in the third degree and that Eddie was convicted of the class A misdemeanor of assault in the third degree.


author: PER CURIAM.

text:
    Lorie Lyn STEPHENS, Appellant, v. Scott Dee STEPHENS, Respondent.
    No. WD 63645.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Susan D. Szczueinski, Overland Park, KS, for Appellant.
    Michael P. Harris, St. Joseph, MO, for Respondent.
    Before James M. Smart, Jr., P.J., Joseph M. Ellis, and Lisa White Hardwick, JJ.
   Order

PER CURIAM.

Lorie Stephens appeals from the trial court’s modification of the decree that dissolved her marriage to Scott Stephens. The trial court transferred sole physical custody of the parties’ three sons from Mother to Father. Mother also challenges the trial court’s ruling on an evidentiary matter.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


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

text:
    Kathy Louise SWEET, Respondent, v. Ryan James SWEET, Appellant.
    No. WD 63736.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      Karl Heinz Timmerman, Holden, MO, for Appellant.
    Dennis Bernard Bosch, Independence, MO, for Respondent.
    Before PATRICIA BRECKENRIDGE, P.J., JAMES M. SMART, JR., and PAUL M. SPINDEN, JJ.
   JAMES M. SMART, JR., Judge.

This is an appeal from a dissolution of marriage, in which Ryan James Sweet appeals the trial court’s award of non-modifiable maintenance to Kathy Louise Sweet. He contends that the maintenance award should have been made modifiable and contests the amount of the award. The judgment is affirmed in part and reversed in part.

Statement of Facts

Ryan Sweet (Husband) and Kathy Sweet (Wife), both of whom served in the 1991 Gulf War, were married in August 1992. They separated in May 2001. No children were born of the marriage. Wife filed her petition for dissolution in August 2001, and Husband filed a counter-petition in November 2001. Wife’s petition included a request for maintenance. A dissolution hearing was held on November 26, 2003. At the commencement of the hearing, the parties stipulated to the court “that [Wife] has a need of maintenance.” During the last few months of the separation, Husband paid $250.00 per month in temporary maintenance by agreement of the parties.

The evidence adduced at trial showed that Wife suffers from numerous health problems, which both parties describe as Gulf War Syndrome. Wife’s neurological deficit disorder is considered progressive in nature. She gets confused easily, has stability problems, and suffers from other complications, including hyper-coagulation, muscular-skeletal disorder, and degeneration. As a result of those health problems, Wife quit her job as a nurse in December 1999 and has not worked since that date. Wife receives disability benefits totaling $1,311.00 per month' — $866.00 per month from Social Security and $445.00 per month from the military. In March 2002, Wife received a lump sum payment of $14,136.75 for retroactive benefits from Social Security. She also received a lump sum payment of $10,000.00 from the military in March 2003. Wife testified, however, and the court found, that those amounts had been expended prior to trial for Wife’s necessary living expenses and for her medical and prescription expenses. The court found that “no credible evidence was presented that [Wife] had not used the money as she had testified or that [she] was concealing the funds from disclosure.”

The court found that Wife has monthly expenses of “at least” $2,191.00. That figure includes $270.00 per month for supplemental health insurance from AARP and $620.00 for out-of-pocket expenses for her medications. The supplemental health insurance would be necessary immediately following the dissolution, Wife testified, when she would be dropped from Husband’s employer’s insurance. Although Wife receives some prescription benefits in connection with her military disability, additional insurance is needed to cover all of her prescriptions. She testified that the cost of all her prescriptions without any insurance coverage would be $4,100.00 per month.

Husband’s average net income is $3,382.00 per month, including overtime pay and income from the United States Army Reserves. The court found that, “although the evidence was inconsistent and contradictory,” Husband has monthly living expenses of $984.00. Both Husband and his girlfriend, with whom he was living at the time of trial, testified that Husband shared living expenses equally with her. Although Husband claimed $2,665.83 in expenses on his Second Amended Income and Expense Statement and testified to that amount, he also admitted at trial that many of those amounts were not correct.

The evidence showed that when the parties separated, Wife continued to live in the marital home and Husband moved out. Wife owned the house prior to the marriage. Wife testified that in 1997, she reluctantly added Husband’s name to the title when they refinanced the mortgage. Sometime after the separation, but prior to the dissolution, Husband paid Wife $5,000.00 (apparently with money provided by his girlfriend) for her share of the equity in the house in return for her quit-claiming it over to him. Wife testified that she agreed to this because she was not working at the time and could not pay the mortgage and because she needed the money. Shortly thereafter, Husband transferred the house to his girlfriend. Husband and his girlfriend were living together in the house at the time of trial.

The evidence also showed, and the trial court found, that Husband had concealed from Wife a $50.00 deduction from each of his paychecks, which he used to purchase savings bonds that he put in his girlfriend’s name.

On December 29, 2003, the trial court entered its judgment, setting aside to each party their non-marital property, dividing the marital assets and debts and Husband’s military pension, ordering Husband to pay Wife’s attorney’s fees, and granting Wife a judgment for her share of the savings bonds. The court also awarded Wife $1,000.00 per month in non-modifiable maintenance.

Husband appeals the maintenance award.

Standard of Review

The trial court’s judgment in a dissolution case will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Murphy, 71 S.W.3d 202, 205 (Mo.App.2002) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence in the light most favorable to the decree, disregard evidence to the contrary, and defer to the trial court even if the evidence could support a different conclusion. Burnett v. Burnett, 18 S.W.3d 27, 30 (Mo.App.2000). Credibility issues are for the trial court to resolve, and we will assume that all factual issues were resolved in favor of the judgment entered. In re Kreutzer, 50 S.W.3d 334, 337 (Mo.App.2001).

A trial court has broad discretion in setting the amount and duration of a maintenance award; accordingly, such an award is reviewed only for an abuse of discretion. Murphy, 71 S.W.3d at 205. An abuse of discretion will be found only where the award is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the action taken by the trial court, it cannot be said the trial court abused its discretion.” Goodin v. Goodin, 5 S.W.3d 213, 216 (Mo.App.1999). The party contesting the maintenance award has the burden of establishing that it amounts to an abuse of discretion. Burnett, 18 S.W.3d at 29.

Point on Appeal

Husband argues in a single point on appeal that the court abused its discretion in awarding an amount of maintenance based on “anticipated future medical expenses” rather than current needs, and that the court abused its discretion in awarding non-modifiable maintenance as opposed to modifiable maintenance.

The Maintenance Award

Before maintenance can be awarded, the two-part threshold test found in section 452.335.1, RSMo 2000, must be satisfied. That test requires the party seeking maintenance to establish: (1) that she lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs, and (2) that she is unable to support herself by appropriate employment. Kreutzer, 50 S.W.3d at 337; § 452.335.1.

Once the court determines that maintenance is warranted, the court considers a list of factors set forth in section 452.335.3 in determining the amount and duration of maintenance. Kreutzer, 50 S.W.3d at 337-38. That statute provides in pertinent part:

The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ... ;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.

Section 452.335.2 gives broad discretion to the trial court in applying the factors on which the award is to be based. Hammer v. Hammer, 139 S.W.3d 239, 241 (Mo.App.2004). The court is to apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Id.

Here, after noting in its judgment that Wife had requested maintenance and that the parties had stipulated that she is in need of maintenance, the court held:

After consideration of all relevant factors, the Court finds there is necessity to award maintenance to [Wife]. [Wife] lacks sufficient property to meet her reasonable needs, and [Wife] is unable to support herself through appropriate employment. The Court further takes into consideration the financial resources of the parties, and comparative earning capacities; the physical condition of [Wife]; and [Husband’s] ability to meet his own needs in setting the monthly amount of maintenance [Husband] should pay to [Wife].

The court determined, after considering all relevant factors, that Wife was in need of maintenance in that (1) she lacks sufficient property to meet her reasonable needs and (2) she is unable to support herself through appropriate employment. The court ordered Husband to pay Wife $1,000.00 per month in non-modifiable maintenance. The court listed the following specific factors as ones it considered in arriving at that amount:

1. The financial resources of the parties;
2. The comparative earning capacities of the parties;
3. The physical condition of Wife;
4. The Husband’s ability to meet his own needs in setting the maintenance award.

The court did not specifically list the “conduct of the parties during the marriage” (as is permitted under section 452.335.2(9)) as a factor it considered. It can be inferred, though, that the court did consider this factor from the finding that Husband “failed to disclose” to Wife that he purchased savings bonds and put them in his girlfriend’s name while the parties were still married and from the court’s order that Husband pay Wife her share of those savings bonds. Also, we note Husband’s less-than-forthright conduct in the sale of the marital home to Husband’s girlfriend. Marital conduct that places extra burdens on the other spouse and undermines the marriage may be considered, within the parameters of reasonable support, in fixing an amount of maintenance. McIntosh v. McIntosh, 41 S.W.3d 60, 69 (Mo.App.2001).

The list of factors in section 452.335.2 is “neither all inclusive nor mandatory,” and the trial court is not required to specifically address each factor. Burnett, 18 S.W.3d at 31. Here, the court stated that it had considered all relevant factors in arriving at the amount of maintenance.

Amount of Maintenance

With regard to the amount of the maintenance award, Husband argues (1) that the court erred in basing the award on “future anticipated needs” rather than on actual current needs; and (2) that the court abused its discretion in awarding an amount greater than Wife’s demonstrated need.

Husband argues, in his first sub-point, that the trial court abused its discretion in basing the amount of the award on “future anticipated needs.” Specifically, he contends that the $270.00 for health insurance and $620.00 for prescriptions included in Wife’s expense statement were “anticipated” expenses rather than current needs.

We acknowledge that “[a]n award of maintenance cannot be based on a speculative future condition.” Childers v. Childers, 26 S.W.3d 851, 857 (Mo.App.2000). Wife testified, however, that the $620.00 was the amount she was paying out-of-pocket at the time of trial while still covered under Husband’s employer’s insurance. She also testified that she would no longer be eligible for coverage under that insurance once the dissolution was final and would need to spend $270.00 for additional health insurance from AARP following the dissolution to keep her prescription coverage at the same level. This testimony was uncontroverted at trial. Her medications without insurance coverage cost $4,100.00 per month.

Wife submitted an income and expense statement, in which she claimed expenses of $2,191.00 per month, and testified at trial as to her reasonable monthly expenses. To prove claimed expenses, “statements of income and expenses are routinely admitted and relied upon without further testimony or documentary support for each individual item.” Id. at 855. In finding that Wife “has reasonable living expenses of at least $2,191.00 per month,” the court accepted Wife’s evidence with regard to her need for supplemental medical insurance following the dissolution and her prescription costs. Deferring to the trial court’s superior ability to adjudge “the credibility of the witnesses, their sincerity, character and other trial intangibles which may not be apparent in the record,” we find no abuse of discretion. In re Marriage of Clift, 108 S.W.3d 197, 200 (Mo.App.2003).

We note that under this sub-point, Husband, somewhat offhandedly, discusses two other matters: (1) Wife’s receipt of the two lump sum disability payments and the $5,000.00 from the sale of the house, and (2) the possibility that Wife is eligible for Medicaid. With regard to the lump sum payments, Husband merely lists the payments Wife has received. He does not argue that the trial court should have considered these funds in deciding whether she had sufficient property from which to support herself. Nor does he argue that the court erred in failing to include the funds in the division of marital property. Because Husband fails to develop the necessary arguments here, we consider the issue of the lump sum payments to Wife abandoned. See In re Marriage of Michel, 142 S.W.3d 912, 930 (Mo.App.2004) (“It is not within the appellate court’s province to speculate about arguments that are not asserted or that are merely asserted but not developed.”). At any rate, the trial court, in accordance with its discretion, accepted Wife’s testimony that she had depleted those funds for necessary living expenses prior to the hearing and no credible evidence to the contrary was presented.

Husband also states that Wife “failed to disclose” that once she is no longer covered by his health insurance, she will be eligible for Medicaid and its medication benefits, and that, as a disabled veteran, her medications are also covered by the Veteran’s Administration. First, Wife testified that her prescription coverage from the Veterans’ Administration does not cover the bulk of her prescription expenses; specifically, it does not pay anything on one prescription that costs $3,500.00 per month. Second, not only does Husband again fail to develop his argument with regard to Wife’s eligibility for Medicaid, he also fails cite to any testimony or evidence presented at trial that would support this assertion. As noted by Wife, “no such testimony or evidence was ever adduced.” Wife specifically testified that she was not eligible for Medicaid, but that she had Medicare, which does not cover prescriptions. Even if Husband is correct that Wife will be eligible for Medicaid, the trial court cannot be convicted of an abuse of discretion for failing to take into account information that was never presented to it.

In his second sub-point, Husband argues that the court abused its discretion in awarding an amount of maintenance greater than Wife’s demonstrated need. He points out that the maintenance award added to Wife’s disability income would give her a monthly income of $2,311.00, or $120.00 over her “demonstrated need” of $2,191.00. Husband asks, “how could an award of maintenance in an amount greater than the demonstrated need not be an abuse of discretion?”

Contrary to Husband’s characterization of the judgment, the trial court actually found that Wife “has reasonable living expenses of at least $2,191.00 per month” and that the loss of Husband’s insurance would “significantly” increase Wife’s expenses. (Emphasis added.) In Childers, 26 S.W.3d at 856, this court stated that

[a] trial court, in calculating and awarding maintenance, may allow a reasonable amount above the itemized expenses of the party seeking maintenance to meet unexpected day-to-day expenses which, given their nature, may be reasonable under the circumstances, yet are incapable of specific itemization.

See Hammer, 139 S.W.3d at 245-46 (court can vary from expense statement where the variation is based on factors in evidence).

“A trial court has broad discretion in determining the amount and duration of a maintenance award[.]” Childers, 26 S.W.3d at 854. To establish an abuse of discretion, the complaining party must show that the award is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration!.]” Goodin, 5 S.W.3d at 216. Husband does not convince this court that an award of maintenance that exceeds listed expenses by $120.00 (particularly where Wife’s medical and prescription expenses are so unsettled) is arbitrary and unreasonable or that it shocks the sense of justice and indicates a lack of careful consideration.

Unless we find that “the amount is patently unwarranted and wholly beyond the means of the spouse who pays,” we will not disturb a trial court’s award of maintenance. Burnett, 18 S.W.3d at 29. Here, Husband does not argue that the amount is beyond his means to pay. Balancing Wife’s reasonable needs with the ability of Husband to pay, we do not find the amount “patently unwarranted.” See Hammer, 139 S.W.3d at 241. The party contesting the maintenance award has the burden of establishing that it amounts to an abuse of discretion. Burnett, 18 S.W.3d at 29. Husband fails to demonstrate under any of his sub-points that the amount of the award in this case is an abuse of discretion.

Non-modifiable Maintenance

Finally, Husband argues that “[t]he trial court abused its discretion by awarding non-modifiable maintenance in a case where a party’s need for maintenance and the other party’s ability to pay that maintenance can change.”

Section 452.335.3 requires the court to state whether a maintenance award is modifiable or non-modifiable. It states, in pertinent part:

The maintenance order shall state if it is modifiable or nonmodifiable. The court may order maintenance which includes a termination date. Unless the maintenance order which includes a termination date is nonmodifiable, the court may order the maintenance ... modified based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order.

§ 452.335.3 (emphasis added). Here, the trial court ordered that the maintenance award be non-modifiable and did not include a termination date.

Husband claims that the maintenance award should be made modifiable because the circumstances of both parties are subject to change. Wife argues that if the court adopted Husband’s position, then section 452.335.3 would be meaningless, since any party may have a change in circumstances in the future. While there is some truth in that statement, here, the problem lies not just in the fact that the award is non-modifiable, but in the fact that the judgment also is silent as to the duration of the award. Thus, it evidently is not only non-modifiable, but is also of unlimited duration or non-terminable.

While awards of unlimited duration are favored, the courts prefer that such awards be modifiable. See Lombardo v. Lombardo, 120 S.W.3d 232, 246 (Mo.App.2003) (citing a judicial preference for modifiable decretal awards of maintenance of unlimited duration). A maintenance award of unlimited duration that is also justifiably non-modifiable would be “exceedingly rare.” See In re Marriage of Boston, 104 S.W.3d 825, 835 (Mo.App.2003) (“We are unable to conclude that there are no circumstances under which such an order would be authorized, although we perceive that they would be exceedingly rare.”).

Modifiable maintenance awards are preferred because a maintenance award based on section 452.335 is founded primarily on need. Goodin, 5 S.W.3d at 219. Our Supreme Court has held that because maintenance is founded on need, it may extend only as long as the need exists. In re Marriage of Lawry, 883 S.W.2d 84, 90 (Mo.App.1994) (citing Cates v. Cates, 819 S.W.2d 731, 735 (Mo. banc 1991)). “If future events pertinent to the issue of maintenance are uncertain, which is usually the case when a maintenance award is ‘based on need,’ the maintenance award should be modifiable.” Goodin, 5 S.W.3d at 219. Thus, although awards of non-modifiable decretal maintenance are permitted under section 452.335.3, there is a judicial preference for modifiable awards of maintenance of unlimited duration. Lombardo, 120 S.W.3d at 246.

Just as a maintenance award of limited duration is justified only where there is substantial evidence of an impending change in the financial condition of the parties, so too must a non-modifiable maintenance order “be justified by the facts and circumstances of the particular ease.” Id.

Here, Wife acknowledges this requirement, citing Mullins v. Mullins, 91 S.W.3d 667, 673 (Mo.App.2002). She argues, though, that the facts and circumstances in this particular case justify a non-modifiable maintenance award because the trial court found that she is unable to maintain any gainful employment in that she is totally disabled and unable to work.

The Southern District of this court dealt with a similar situation in In re Marriage of Michel, 142 S.W.3d at 930. In that case, the wife suffered from Lupus. Id. at 924. She had applied for disability benefits from Social Security, but had not been adjudged disabled and was not yet receiving any disability benefits. Id. at 925. The court reversed the trial court’s order of a non-modifiable and non-terminable award of maintenance. Id. at 927. The court found that the evidence was not sufficient to support the designation of the maintenance as non-modifiable despite Wife’s medical condition. Id. Specifically, the court found that there was no evidence presented that the needs of the wife would not change in the future and that the award of non-modifiable maintenance, therefore, was not justified by the facts and circumstances of the case. Id. at 926.

In this case, Wife has been adjudged to be totally disabled by the Social Security Administration and partially disabled by the Veterans’ Administration. In contrast to Michel, the evidence here shows that Wife’s condition has been progressively deteriorating, is not expected to improve, and will likely continue to deteriorate in the future. However, if the award is allowed to stand, Husband will be required to pay Wife $1,000.00 per month until death or until Wife’s remarriage, which perhaps (in view of the ages of the parties) could be as long as forty years, without regard to need. See Section 452.370.3 RSMo 2000. We can be practically certain that at some point in the future, the sum of $1,000.00 per month will be an inappropriate amount as to some party or both parties. See Michel, 142 S.W.3d at 926.

The circumstances under which a non-modifiable maintenance award could justifiably continue indefinitely would be exceedingly rare. See Boston, 104 S.W.3d at 835. We do not find such circumstances in this case.

Because of Husband’s pattern in dealing with Wife and discrepancies in his testimony, the court could have believed Husband might be inclined to find frequent reasons to seek modification. We understand the trial court’s concern that making the award modifiable might result in inordinate and unwarranted attempts to change the maintenance award. Such concerns must be balanced against the risk of an unjust result as a result of changes occurring through the passage of time. Also, in the event of any abuse in efforts to modify the maintenance award, trial courts are not helpless but are vested with the authority to take such actions as will tend to deter such conduct.

We affirm the amount of the monthly maintenance award. Because we conclude that the evidence does not warrant making the maintenance award indefinitely non-modifiable, we vacate the judgment and exercise our authority under Rule 84.13 to modify the award to make the award modifiable.

Conclusion

Based on the foregoing, we affirm the amount of the monthly award of maintenance and order pursuant to Rule 84.13 that the award shall be modifiable. The judgment is affirmed in all respects except that the maintenance award shall be modifiable.

BRECKENRIDGE and SPINDEN, JJ., concur.

      . The record shows that the military has found Wife to be 40% disabled from fibro-myalgia and fibromyocitis. The Social Security Administration has determined that she is totally disabled.

      . Husband contends that Wife received a payment of $22,375.00 from Social Security based on her 2002 annual benefit statement. The evidence supports the trial court’s finding that the actual lump sum payment was $14,135.76.

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

      . Although the parties stipulated that Wife was in need of maintenance, Husband now, in his "Conclusion,” appears to contest the need for maintenance. Having stipulated to Wife's need for maintenance, Husband cannot now contest the trial court's acquiescence in that determination. See Goerlich v. TPF, Inc., 85 S.W.3d 724, 732 (Mo.App.2002), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

      . Rule 84.04(i) requires that all statements of fact and argument in an appellate brief have specific page references to the legal file or transcript. See Michel, 142 S.W.3d at 926-27. Husband includes no page references in this portion of his argument, and our review of the transcript reveals no evidence to support this argument.

      . Husband also does not explicitly contest the court’s finding that his monthly expenses are $984.00; he merely recites in his statement of facts that his expense statement showed, and he testified to, expenses of $2,665.83. At any rate, the court’s finding of $984.00 for Husband’s expenses is supported by the record, particularly in light of the extremely contradictory and conflicting evidence presented by Husband.

      . Husband discusses various scenarios under which there could be a change in circumstances. He suggests, first, that Wife's condition could deteriorate, at which time "the amount of her disability check would increase, thereby decreasing her need for maintenance from [Husband].” He also states that Wife's “medical condition is subject to change [presumably for the better] as the Veterans’ Administration conducts further studies on the effects of exposure to possible toxins during the first Gulf War.” (According to Husband, "[m]edical conditions are seldom if ever static: they change, for the better or worse.”) Finally, Husband speculates that since he was stationed in the same unit, at the same time, in the same location as Wife, he "may also come down with 'Gulf War Syndrome,’ impacting, in the future, his ability to pay non-modifiable maintenance.” Husband does not contend that he suffers from any symptoms of the syndrome.

      . It should also be noted that because maintenance is founded on need, "lump sum” maintenance is not appropriate under Missouri law, except as a division of property. Burnett, 18 S.W.3d at 32-33 (citing Cates, 819 S.W.2d at 735).

      . Mullins was an appeal from the denial of a motion to set aside a default judgment, and the issue was whether the trial court had exceeded its jurisdiction, pursuant to Rule 74.06(b), in awarding the non-modifiable maintenance. 91 S.W.3d at 673.