author: KENNETH W. SHRUM, Judge.

text:
    Gloria CALHOUN, Appellant-Petitioner, v. John CALHOUN, Respondent-Respondent.
    No. 26167.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 31, 2005.

      Charles P. Todt, Tonya D. Fifer, The Todt Law Firm, P.C., St. Louis, Daniel R. Schramm, Daniel R. Schramm, L.L.C., Chesterfield, for appellant.
    Susan S. Jensen, Pratt, Fossard, Jensen & Masters, LLC, Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

Gloria Calhoun (“Wife”) appeals from a judgment dissolving her marriage to John Calhoun (“Husband”). Wife claims that the trial court committed reversible error when it (a) only awarded maintenance of $4,000 per month to her, (b) imputed income of $1,260 per month to her, and (c) allegedly failed to consider the future tax burden stemming from the award of an individual retirement account to her. This court affirms.

STANDARD OF REVIEW

The provisions of a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court erroneously declares or applies the law. Hammer v. Hammer, 139 S.W.3d 239, 240[1] (Mo.App.2004). In making its maintenance determination, the trial court enjoys broad discretion, and its decision will not be overturned unless the appellant demonstrates an abuse of discretion. In re Marriage of Lindeman, 140 S.W.3d 266, 272 (Mo.App.2004). “Evidence is viewed in a light most favorable to the judgment, disregarding contrary evidence and deferring to the trial court’s determination even if the evidence could support another conclusion.” Id.

FACTS

The marriage between Husband and Wife lasted approximately twenty-three years. During this time, the couple produced two children, Tiffany (born August 21, 1981) and Justin (born April 25, 1984).

Husband obtained a master’s degree in education, but left that field in 1982 to pursue a career as a stockbroker. This decision produced great financial results, as illustrated by Husband’s gross income for 2002 ($535,795). In its Form 14 calculations, the trial court used that amount to set Husband’s gross monthly income at $44,650.

Wife graduated from high school, but had no additional formal education. Her work experience included five years as a grocery store checker. Additionally, her work experience included real estate management. This real estate knowledge was gained during the time she worked for “the family business.” The family business revolved around numerous rental properties.

In relation to at least some of these properties, Wife testified that she “did everything that really needed to be done,” including cleaning the properties, renting the properties, and filing suit to collect unpaid rent monies. In relation to other properties (namely, two buildings containing sixteen apartment units), Wife oversaw the entire process, including review of the construction plans, decorating the units, and writing contracts. In fact, Wife became so savvy in real estate dealings that she “negotiated the sale price” of a home owned by the family which resulted in a profit of $1,000,000. From these acquired skills, Husband opined that Wife possessed employable skills for use in buying and selling real estate.

At the time of trial, Husband was fifty-one years old, and Wife was forty-eight. The evidence revealed that neither suffered from significant health problems that would preclude them from full-time employment.

In the judgment of dissolution, the trial court awarded Wife marital assets valued at $2,226,861. The court assigned to her responsibility for $189,068 in marital debt. Thus, the net equity in marital assets awarded Wife was $2,037,794, which represented 49.8% of the parties’ net marital property. The marital property award to Wife included certain income-producing assets which the court found would generate over $8000 per month in income for Wife. The court also imputed income of $1260 per month that Wife could earn if she obtained full-time employment. Wife will also receive almost $1000 per month in child support for the two children, and over $650 per month in support for Justin after Tiffany becomes legally emancipated. In order to meet her reasonable needs, the court awarded to Wife $4000 per month as maintenance.

The court awarded to Husband marital assets totalling $10,098,589. The court assigned to him marital debt in the amount of $8,039,682; thus, Husband received net marital property in the amount of $2,053,907 which represented 50.2% of the net marital estate. As indicated above, Husband was ordered to pay maintenance and child support to Wife. Husband was also ordered to pay 100% of the children’s college expenses, including “tuition, fees, books, and dormitory costs for room and board.”

After entry of the dissolution judgment, Wife filed the instant appeal. In this appeal, Wife raises three points of alleged error. In general, these points relate to the amount of income the court believed Wife is capable of receiving each month. Because Wife’s second point would affect our resolution of Point I, we address it at the outset.

Point II: Income Imputed to Wife

Wife’s second point alleges the trial court committed reversible error when it imputed monthly income to her in the amount of $1260. In the argument section of her brief, Wife argues “that it was speculative for the trial court to have imputed any employment income to her at all under the facts and circumstances presented here.” (Emphasis supplied.) Implicitly, it appears that Wife argues that she should not be required to work for the rest of her life.

A divorcing spouse has an affirmative duty to seek full-time.employment. Breihan v. Breihan, 73 S.W.3d 771, 775[4] (Mo.App.2002). A court is allowed to impute income to a spouse seeking maintenance according to what that spouse could earn by use of his or her best efforts to gain employment suitable to his or her capabilities. Thomas v. Thomas, 76 S.W.3d 295, 303[19] (Mo.App.2002). In making this determination, a court should consider prior earning capacity, present wages, and probable future prospects. Linton v. Linton, 117 S.W.3d 198, 208[29] (Mo.App.2003).

The uncontradicted evidence showed that Wife was healthy and entirely capable of full-time employment. Although she was a housewife for the majority of the marriage, she had a high school diploma and previous work experience as a grocery store cashier. More importantly, she gained valuable work experience through the “family business.” In fact, her real estate business acumen resulted in' a profit of $1,000,000 through only one sale. Based on these facts, the court imputed income in the amount of $1260 per month or $7.27 per hour.

Husband testified to what he believed Wife could earn using her real estate knowledge. The undisputed evidence showed that Husband had an abundance of experience with property dealings. Without objection, Husband testified that Wife had the necessary real estate skills to buy and sell property for profit. The couple had done so throughout their marriage. Also, without objection, Husband testified that Wife could earn a living by becoming a real estate agent. After becoming licensed, Husband claimed that Wife could earn between $50,000 to $75,000 yearly ($4167 to $6250 monthly). The trial court was free to believe Husband’s testimony. Llana v. Liana, 121 S.W.3d 286, 290-91[8] (Mo.App.2003).

We find no abuse of discretion when the trial court imputed monthly income to Wife in the amount of $1260. The evidence supported a greater amount, but this has not been challenged on appeal; consequently, Wife cannot show prejudice.

Point I: Maintenance Award

In her first point, Wife alleges the trial court committed reversible error when it awarded “maintenance of only $4000 per month.” She repeatedly asserts (both in her brief and at oral argument) that this amount of maintenance unfairly relegates her “to the status of a second class citizen.” She argues that the high standard of living during the marriage, Husband’s significant income, and the length of the marriage are factors which support a higher maintenance award.

As stated previously, a maintenance award falls within the sole discretion of the trial court. Lindeman, 140 S.W.3d at 272. “Judicial discretion is abused when the court’s judgment is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicates a lack of careful consideration.” Bonenberger v. Bonenberger, 108 S.W.3d 729, 738[10] (Mo.App.2003).

The trial court can award maintenance only if it finds that the spouse seeking maintenance (1) lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and (2) is unable to support himself or herself through appropriate employment. § 452.335.1, RSMo (2000); D.K.H. v. L.R.G., 102 S.W.3d 93, 103 (Mo.App.2003). “In applying this standard, the trial court must first determine the reasonable needs of the party seeking maintenance.” Id. at 103[19]. Then, the court must determine whether these needs could be met via the use of property or appropriate employment. Id.

It has been recognized “that in a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as a guide in computing the spouse’s reasonable needs.” Hall v. Hall, 553 S.W.2d 864, 868 (Mo.App.1977). “However, an excessive standard of living does not equate to reasonable needs under the statute.” Baldwin v. Baldwin, 905 S.W.2d 521, 525[15] (Mo.App.1995). Thus, a court should not apply a mechanical approach whereby the standard of living of the parties is determined and then divided by two. Brueggemann v. Brueggemann, 551 S.W.2d 853, 857[2] (Mo.App.1977). This follows because maintenance is founded on need and issues for support and only for support. Booker v. Booker, 125 S.W.3d 354[3], 357 (Mo.App.2004).

Further, a court is not required to award maintenance to meet all of a spouse’s needs even if the other spouse has sufficient resources to provide such support. Linton, 117 S.W.3d at 208[30]. Maintenance serves the purpose of allowing the receiving spouse to readjust financially during a period of dependency. Booker, 125 S.W.3d at 357[4]. The emphasis of the maintenance statute is to allow a party support until he or she can become self-sufficient. Brueggemann, 551 S.W.2d at 856-57.

Here, Wife filed an income and expense statement as to “what [she] think[s] she should be entitled to.” (Emphasis supplied.) Initially, we note that reasonable need for maintenance purposes is not based on entitlement; it is based on need. Maintenance should be awarded to meet the demonstrable needs of a spouse and should not be awarded for the purpose of accumulating capital or building an estate. Linton, 117 S.W.3d at 206[22]; In re Marriage of Tappan, 856 S.W.2d 362, 366[1] (Mo.App.1993).

In her income and expense statement, Wife -alleged that her monthly expenses and needs totalled $21,887. The court determined that Wife’s reasonable needs to-talled $13,260 per month. Essentially, the court arrived at this figure by disallowing Wife certain claimed expenses. We find no abuse of discretion for a number of reasons.

First, many of Wife’s claimed expenses had no evidentiary support. Certain items (3, 4, 7, and 11) listed in note six were left wholly unsupported by any evidence. Wife must prove her needs within a reasonable tolerance of proof. Lindeman, 140 S.W.3d at 273[6], Second, certain expenses (9 and 12) were related solely to the children. The needs of children are taken care of by child support and should not be included in the maintenance calculation. Adams v. Adams, 108 S.W.3d 821, 827-28 (Mo.App.2003). Third, it appears that the court simply disbelieved some of Wife’s claimed expenses (6, 8, and 10). The trial court was not required to accept these claims as true, even if they were uncontradicted. Stidham v. Stidham, 136 S.W.3d 74, 82 (Mo.App.2004).

Finally, we note Wife’s chief complaint relates to expenses disallowed for items related to the marital home, which Husband was awarded in the property distribution. We find no abuse of discretion in this determination for the following reasons; (1) Wife testified that she would sell the home if the court awarded it to her because it was simply “a lot of house for one person;” (2) Wife was awarded a three bedroom and three bathroom home in California with a value of nearly $400,000; (3) Husband was ordered to pay her child support even though he primarily supports the children; (4) many of Wife’s expenses related to the children were allowed in the maintenance calculation; and (5) the marital home was awarded to Husband primarily because he testified that he used it for his business. The disallowance of these expenses certainly does not shock our sense of justice.

The court’s determination of reasonable needs at over $13,000 per month was not an abuse of discretion. The court awarded Wife income-producing property and maintenance that was sufficient to meet these needs. A maintenance award is premised upon the idea that a need exists to close the gap between a spouse’s income and that spouse’s monthly expenses. Williams v. Williams, 753 S.W.2d 101, 102 (Mo.App.1988). Here, that gap has been closed; consequently, we find no error.

Point III: Alleged Failure to Consider Tax Consequences

In her final point, Wife alleges the trial court committed reversible error by “failing to consider” the tax consequences of individual retirement accounts (“IRA”) awarded to her. She argues the court misapplied the law by “failing to address” these known tax burdens. To support her argument, Wife points to evidence that revealed she “will be taxed at ordinary income tax rates” on periodic payments from IRAs.

In valuing an IRA for maintenance and property distribution purposes, the trial court enjoys broad discretion. Hill v. Hill, 53 S.W.3d 114, 116-17 (Mo. banc 2001). The court is required to “consider” income attributable to IRAs when calculating maintenance. Lee v. Lee, 117 S.W.3d 693, 697[7] (Mo.App.2003).

It is equally true that a court must consider the tax consequences as a factor when dividing a marital asset. Brown v. Brown, 14 S.W.3d 704, 707 (Mo. App.2000). The burden of showing adverse tax consequences must be established with particularity at trial. Linton, 117 S.W.3d at 206[24]. If a party fails to meet this burden, then he or she is precluded from raising the issue as an error on appeal. Id.; Keller v. Keller, 877 S.W.2d 192, 196 (Mo.App.1994); Schneider v. Schneider, 824 S.W.2d 942, 949[25] (Mo.App.1992).

Wife’s argument fails for a number of reasons. First, Wife has only challenged the court’s failure to “consider” or “address” the tax consequences in relation to the IRAs. Wife ignores the plain language of the trial court’s judgment. Therein, the court explicitly states that it “has considered the tax consequences with regard to said income and maintenance, in concluding that [Wife] will be able to meet her reasonable needs with the net monthly sum received after taxes.” Wife has not argued that the failure to award her a credit for the tax consequences results in an inequitable or unjust property distribution or insufficient maintenance award. She has merely claimed that the court did not consider.such consequences. Facially, the judgment shows otherwise. Because the trial court is deemed to know the tax law, Brown, 14 S.W.3d at 707, we must presume it properly considered the tax consequences as not significantly affecting Wife’s property or maintenance award.

Second, in her brief, the only evidence of tax consequences to which Wife points in support of her argument is as follows: “[Husband’s] own financial expert freely admitted that [Wife] will have to pay ordinary income taxes on this money.” In discussing her opinion on what could be earned from the IRAs, the expert testified as follows:

“IRAs are for retirement, and when you take those out, you take those out in periodic annual payments. And what that means is it would be enough paid out each year to liquidate the asset by the end of your life expectancy.
“[Question from Husband’s attorney]: Can she do that immediately?
“[Answer]: Yes, she can.
“[Q]: It doesn’t matter how old she is?
“[A]: No.
“[Q]: And are there any tax penalties to doing that?
“[A]: As long as you take out annual periodic payments for at least five years, you — There is no excise tax.
“[Q]: And—
“[A]: However, it is ordinary income taxable.”

There was no testimony relating to the applicable tax rate, whether the amount would change from year to year, how the court should evaluate the tax consequences, whether the court should award a credit for the tax consequences in the future and reduce that to present value, or a host of other considerations. Simply stated, Wife presented no evidence and no claim to the court that it should award her a credit for the tax consequences stemming from the IRAs. Consequently, she will not be heard to complain on appeal. Linton, 117 S.W.Sd at 206; Keller, 877 S.W.2d at 196; Schneider, 824 S.W.2d at 949[25],

Finally, we do not believe Wife can show prejudice. This follows from the fact that the trial court did not award Husband many credits for alleged tax consequences flowing from his share of the marital assets. If the court had awarded each side certain credits for taxes, then it is likely that the overall property distribution would not have changed.

We And no abuse of discretion in the failure to award Wife a credit for tax consequences flowing from the IRAs. The trial court properly considered such in its maintenance and property awards. Point denied.

The judgment of the trial court is affirmed.

BARNEY, J., and BATES, C.J., concur.

      . This finding is not challenged on appeal.

      . The court granted the parties joint legal and physical custody of the ''children,” allotting to each parent equal parenting time. At the time of trial, the "children” were both in college and Husband paid all expenses related thereto, including tuition and room and board. In the child support award, the court included "a sum for [Wife] as a custodian of the children.” Husband has not challenged the child support award on appeal.

      . The hourly wage is computed as follows: $1260 x 12 months = $15,120 per year divided by 52 weeks = $290.77 per week divided by 40 hours = $7.27 per hour.

      . Except for her complaint that the maintenance award failed to cover all of her listed expenses, Wife never explains what, in her view, defines a "second class citizen.”

      . The court found that Wife could earn $9260 per month as income ($8000 from investment income and $1260 from full-time employment). The court awarded her '$4000 in maintenance. In doing so, the trial court’s judgment implicitly found that Wife’s reasonable needs amounted to no more than $13,260 per month. See Hammer, 139 S.W.3d at 241-42.

      . The court decreased Wife's expenses as follows: (1) mortgage from $4750 to $846; (2) utilities from $965 to $217; (3) car payment from $770 to $708; (4) car maintenance from $200 to $0; (5) homeowner fees from $577 to $350; (6) charitable contributions from $200 to $0; (7) medical expense from $500 to $0; (8) metabolic research from $350 to $0; (9) food for the children from $750 to $0; (10) gifts from $833 to $0; (11) cars for children from $800 to $400; (12) dog care for Tiffany’s pet from $100 to $0; and (13) cleaning costs for marital home from $400 to $0.

      . Moreover, Wife cites only one case to support her proposition, i.e., Baldwin, 905 S.W.2d 521. In that case, the husband’s accountant testified that the tax liability was $360,852, and the trial court was free to accept that as true. Id. at 524. In our case, there was no evidence regarding any amount of liability. Therefore, Baldwin is factually inapposite.


source: Caselaw Access Project

author: NANNETTE A. BAKER, Judge.

license: Public Domain

text:
    Padraic COOK, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83597.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 1, 2005.

      Padraic Angelo Cook, Licking, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Padraic Cook (“Cook”) appeals the dismissal of his motion to reopen his postcon-viction proceeding to address claims of fraud and abandonment. We dismiss the appeal because the record is insufficient for review of the issues on appeal.

Cook was found guilty of one count of robbery, one count of assault and two counts of armed criminal action in February of 1991. Cook was sentenced to consecutive terms in the department of corrections of thirty years each for robbery and armed criminal action to be served concurrently with terms of ten years for assault and three years for another count of armed criminal action. On March 29, 1991 Cook filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed, an amended motion was filed, and it was denied without an evidentiary hearing on September 25, 1991. Cook appealed his conviction and the denial of his postconviction motion. This court consolidated the appeals and affirmed on September 8, 1992. See State v. Cook, 835 S.W.2d 574 (Mo.Ct.App.1992).

In 2003, in the same court where his postconviction proceedings took place, Cook filed a pro se motion to reopen his Rule 29.15 motion. The court denied the motion as an improper successive motion for postconviction relief on September 9, 2003. Appellant then filed this appeal, also pro se.

Even though a postconviction relief claim arises from a criminal conviction, it is governed by the rules of civil procedure. Rule 29.15(a). Thus, under Rule 75.01, a trial court retains jurisdiction to reopen the proceedings for only thirty days following its ruling. State v. McElroy, 838 S.W.2d 43, 49 (Mo.App. E.D.1992). However, there is a very narrow exception to the thirty-day limitation. Under this exception the court in which the original postconviction proceeding was held retains jurisdiction to reopen the proceedings to address claims of abandonment by post-conviction relief counsel. See Daugherty v. State, 116 S.W.3d 616 (Mo.App. E.D.2003); Hammack v. State, 130 S.W.3d 721 (Mo.App. E.D.2004). The Supreme Court has recognized a very narrow category of cases which rise to the level of abandonment. Russell v. State, 39 S.W.3d 52, 54 (Mo.App. E.D.2001). These include cases in which appointed counsel (a) failed to file an amended motion on movant’s behalf without explanation, (b) filed an untimely amended motion or (c) filed a motion “so patently defective that it amounted to ‘a nullity.’” Id.

In order to resolve the issue of whether this case falls within that narrow exception where the court retains jurisdiction to reopen the proceedings, we need to determine whether the allegations regarding the PCR counsel in Cook’s motion to reopen rise to abandonment. However, the motion is not contained in the legal file and does not appear anywhere in the record.

Rule 81.12 requires that the appellant compile the record on appeal. The legal file must contain the record, proceedings and evidence necessary to resolve the issues on appeal. Zlotopolski v. Director of Revenue, 62 S.W.3d 466, 468 (Mo.App. E.D.2001). When there is an incomplete record on appeal, we dismiss the appeal. Id.

In this case, the record does not contain all materials necessary to determine the questions presented. Without the motion to reopen, we are unable to review whether the motion court had jurisdiction because the question of jurisdiction depends on what facts were contained in the motion.

Appeal dismissed.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J„ concur.

      . The record on appeal does not contain a copy of the motion, though it appears from the order and from appellant’s brief that appellant probably alleged abandonment by PCR council

      . In his points relied on, Cook argues the merits of his motion to reopen his 29.15 proceedings. However, the motion was dismissed as an “improper successive motion’’ and a ruling was not made on the merits. Cook does cite cases regarding jurisdiction to decide a motion to reopen and so this court will liberally construe his appeal to also argue that the motion court had jurisdiction to decide the motion.


author: PER CURIAM.

text:
    Terrance BOLDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 84405.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 8, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO 65102, for respondent.

      Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

A jury convicted the movant, Terrance Bolds, of five counts of forcible sodomy, two counts of forcible rape, four counts of burglary in the first degree, one count of robbery in the first degree, one count of assault in the first degree, and four counts of armed criminal action. This Court affirmed the judgment entered upon the movant’s convictions. State v. Bolds, 11 S.W.3d 683 (Mo.App. E.D.1999).

In the present appeal, the movant challenges the denial of his Rule 29.15 motion after an evidentiary hearing. The trial court’s findings of fact and conclusions of law are not clearly erroneous. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Rodney JONES, Plaintiff/Appellant, v. CITY OF FLORISSANT, Defendant/Respondent.
    No. ED 85016.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 8, 2005.
    Rodney K. Jones, Marion, IL, pro se.
    City of Florissant, Florissant, MO, pro se.
   GEORGE W. DRAPER III, Chief Judge.

Rodney Jones (Appellant) filed a petition in circuit court seeking a writ of mandamus against the City of Florissant. Appellant sought to have the trial court compel Florissant to accept his motion to plead guilty to outstanding traffic charges in the city. The matter was set for a hearing and notice sent to the parties that hearing was scheduled for July 30, 2004. On that date, the court dismissed Appellant’s petition without prejudice for failure to prosecute. Appellant filed this appeal.

This Court has a duty to examine its jurisdiction sua sponte. Gray v. Botkin Lumber Co., 135 S.W.3d 519, 520 (Mo.App. E.D.2004). “A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred.” Rule 67.01. A dismissal without prejudice is not a final judgment and therefore, cannot be appealed. Ampleman v. Schweiss, 969 S.W.2d 862, 863 (Mo.App. E.D.1998). Generally, when a case is dismissed without prejudice, a plaintiff can cure this dismissal by simply filing another suit in the same court. Id. at 863-64.

We issued an order to Appellant directing him to show cause why his appeal should not be dismissed. Appellant filed a response in which he concedes the judgment is not appealable. However, he states that he is currently incarcerated in federal prison in Marion, Illinois, and argues that the trial court’s actions deny him his constitutional right to access to the courts. To the contrary, the action has not denied Appellant access to the courts. In this case, the order of dismissal does not prevent him from simply refiling his case. Moreover, his status as a prisoner does not prevent this, it simply prevents him from personally appearing in court. Appellant may appear through counsel in a future case if he so desires. See, Morris v. Alternatives, Inc., 892 S.W.2d 399, 399-400 (Mo.App. E.D.1995).

Without a final, appealable judgment, this Court is without jurisdiction. The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ„ concur.


text:
    Gerard T. PAWLOWICZ, Appellant, v. Diane M. PAWLOWICZ n/k/a Schwartz, Respondent.
    No. ED 83831.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 8, 2005.
    Richard K Zerr, Burke, Zerr, Wulff & Briscoe, St. Charles, MO, for appellant.
    Robert E. Faerber, James J. Leightner, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Gerard T. Pawlowicz (“Husband”), appeals from the judgment of the Circuit Court of St. Charles County denying Husband’s motion to modify the decree of dissolution of his marriage to respondent, Diane M. Pawlowicz (“Wife”). We affirm.

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


text:
    In the Interest of C.F.C., A Minor.
    No. ED 84019.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 8, 2005.

      Christopher M. Braeske, St. Louis, MO, for Appellant.
    Carol. K. Bader, St. Louis, MO, for Respondent.
    Adrienne L. Schaffer-James, Clayton, MO, for Juvenile.
   GEORGE W. DRAPER III, Chief Judge.

A.D.S. (hereinafter, “Mother”) appeals from the judgment terminating her parental rights to her five-year-old son, C.F.C. (hereinafter, “Child”). She challenges the trial court’s finding that three grounds for termination exist pursuant to Sections 211.447.2(1), 211.447.4(2), and 211.447.4(3), RSMo 2000. We reverse and remand.

Between June and December of 2001, the Division of Family Services (hereinafter, “DFS”) received three separate reports that Child’s 1-year old sister, E.R.M. (hereinafter, “Sister”), had unexplained injuries. DFS questioned Mother after the first two reports. She responded that Child hit, scratched, and bit Sister, as well as other children. Mother also confirmed an additional report that Child overdosed on his prescription medication. DFS suspected Mother neglected her children. Upon receiving the third report about Sister’s injuries, DFS contacted the police, who took Child and Sister into protective custody on December 10, 2001. The next day, DFS placed Child in Our Little Haven, a residential facility for children with special needs, where he currently resides.

At the request of DFS, Mother underwent a psychological evaluation on February 12, 2002. In his evaluation report, Dr. Robert Schlitt opined that Mother had significant learning disabilities and functioned overall in the mild mental retardation range. He questioned whether she could function without having another responsible adult in the household and whether she had even minimal parenting skills and judgment. He recommended that she receive treatment from a clinical therapist, a family therapist, and a psychiatrist. DFS also referred a social worker, Michael Me-han, to her and he counseled her weekly in her home for at least the next two years.

After a hearing on April 22, 2002, the trial court found Child lacked proper care. The court took jurisdiction over him and assigned DFS legal custody. The court also ordered Mother to begin family counseling and to continue seeing a psychiatrist and participate in Parents as Teachers. That same day, Mother and DFS signed, and the court later approved, a written social service plan for family reunification. The plan ordered DFS to help Mother comply with the following requirements: (1) visit Child twice a month; (2) make financial contributions to his support; (3) obtain a psychological evaluation; (4) obtain and maintain housing; and (5) participate in psychological counseling and parenting classes.

Over the next year, Mother performed most of the tasks to some extent, and therefore, she did fail to completely comply. Specifically, she failed to pay for Child’s support, although she did provide gifts and food for Child during her visits, even though some of the gifts were inappropriate, according to DFS. She consistently visited Child twice a month as allowed by the court. A DFS worker testified that during the visits Mother usually engaged in appropriate activities with Child, such as singing songs, reading books, and playing with Legos. Mother obtained a psychological evaluation and participated consistently in her psychological counseling. She participated in Parents as Teachers more sporadically. She completed parenting classes in July 2003 after the termination petition was filed.

Later, the court also ordered her to use the parent aide services of the St. Louis Regional Center and to continue taking GED classes. Again, Mother performed most of the assigned tasks to some extent. However, she did not utilize the Regional Center’s housing services because she refused to share an apartment with another mother, as the Center would require. She also turned down the employment services offered by the Center because she already had a job and felt capable of finding another one on her own in the future, if necessary.

On three occasions after the trial court assumed jurisdiction over Child, the court reviewed the progress Mother and DFS made regarding the social service plan and the court updated the permanency plan for the placement of Child. After the third permanency hearing on May 23, 2003, the court cancelled the social service plan and referred the matter to the Juvenile Officer for termination. The court explained that further efforts by DFS to reunite Mother and Child would be fruitless and inconsistent with establishing a permanent placement for Child. The Juvenile Officer then filed a petition to terminate Mother’s parental rights. The trial court held a bench trial. At the time of the termination hearing, Mother lived at her grandmother’s house with her young son (half-brother to Child). Child still lived in a residential care facility, did not have a foster family, and there was no permanent placement available for him.

On December 4, 2003, the court entered a judgment terminating Mother’s parental rights to Child. The court found that termination was in Child’s best interest and that three separate grounds for termination existed pursuant to Sections 211.447.2(1), 211.447.4(2), and 211.447.4(3). Mother appeals the trial court’s judgment, arguing that there was insufficient evidence to support any of these grounds for termination.

Section 211.447 governs the termination of parental rights. It authorizes termination if the trial court finds that one of the grounds for -termination exist and that the termination of parental rights is in the best interest of the child. Section 211.447.5. The State bears the burden of proving substantial evidence to support the grounds. Grounds for termination must be supported by clear, cogent and convincing evidence. In the Interest of A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004). Evidence is clear, cogent, and convincing if it “instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” Id.

In termination of parental rights cases, this Court will review any conflicting evidence in the light most favorable to the judgment and will defer to the trial court’s assessment qf witness credibility. Id. at 452-453. An appellate court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law. Id. at 452.

A parent’s right to raise her children is a fundamental liberty interest protected by the constitutional guarantee of due process. In the Interest of K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). The interest does not evaporate simply because she has not been a model parent or has lost temporary custody of her children to the State. Id. Thus, this Court will examine the trial court’s findings of fact and conclusions of law closely and will strictly construe Section 211.447 in favor of the parent and preservation of the natural parent-child relationship. Id.; A.S.W., 137 S.W.3d at 453.

In each of her three points relied on, Mother challenges the three statutory grounds for termination upon which the trial court relied. We address each ground, but not necessarily in the order in which she presented them.

In her third point, Mother argues that the trial court erred in terminating her parental rights based upon its finding, pursuant to Section 211.447.2(1), that Child has been in foster care for at least fifteen of the most recent months twenty-two months. The State concedes, and we agree, that section 211.447.2(1) does not constitute a separate ground for termination, but instead, it merely triggers the filing of a termination petition. In the Interest ofM.D.R., 124 S.W.3d 469, 475-76 (Mo. banc 2004). Therefore, to the extent that the trial court considered this finding to be a separate ground for termination, the trial court erred. However, we must still consider the other grounds provided for termination, because the trial court’s error will not warrant a reversal if one of the other grounds upon which the court relied was supported by sufficient evidence. In the Interest of C.L.W., 115 S.W.3d 354, 356 (Mo.App. S.D.2003).

In her first point, Mother argues the trial court erred in terminating her parental rights pursuant to Section 211.447.4(2). She asserts there was insufficient clear, cogent, and convincing evidence to support the court’s findings that the conditions and parental acts described in that section exist and warrant termination. Particularly, she asserts the actions the trial court cites were either appropriate or did no harm to her children.

Section 211.447.4(2) states that abuse or neglect of a child is a ground for termination of parental rights. In determining whether termination is warranted for abuse and neglect, the trial court is required to consider and make findings on the following conditions or acts of the parent:

(a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;
(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or
(d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child’s physical, mental, or emotional health and development.

Section 211.447.4(2). Proof of any one of these factors is sufficient to terminate parental rights. In the Interest of A.S.O., 52 S.W.3d 59, 67 (Mo.App. W.D.2001). However, the trial court’s findings must be specific enough for a reviewing court to be assured that the trial court properly considered the factor in deciding to terminate parental rights. In the Interest of J.V.O., 133 S.W.3d 570, 574 (Mo.App. S.D.2004). A conclusory finding may be grounds for reversal. Id.

The Missouri Supreme Court recently elaborated upon the findings required for termination of parental rights under Section 211.447.4 in K.A.W., 133 S.W.3d at 1. In that case, the Court noted that Section 211.447 “provides for detailed consideration of the parent’s past conduct as well as ... evidence of future behavior.” Id. at 9. The Court concluded that a trial court cannot support termination by solely relying on a parent’s past conduct. Id. at 10. “[I]t is insufficient merely to point to past acts, note that they resulted in abuse or neglect and then terminate parental rights.... Past behavior can support grounds for termination, but only if it is convincingly linked to predicted future behavior. There must be some explicit consideration of whether the past acts provide an indication of the likelihood of future harm.” Id. at 9-10. “Findings supporting earlier determinations are not irrelevant, but they must be updated to address the extent to which they describe the time of the termination and the potential for future harm.” Id. at 10.

Here, the trial court found that Child had been adjudicated neglected on April 22, 2002, and made findings on each of the four factors enumerated above. The court found no evidence to support termination under the first three factors, although the court did state that Mother was mildly mentally retarded and suffered from depression. Instead, the trial court relied upon the fourth factor as the basis for its conclusion that Mother’s neglect of Child provided a ground for terminating her parental rights. The court found that, pursuant to Section 211.447.4(2)(d), that Mother had “repeatedly or continuously failed, although physically or financially able, to provide [Child] with adequate food, clothing, shelter, or other care and control necessary for his physical, mental or emotional health and development.” In support of this conclusion, the trial court made only five findings. The court noted that Mother failed to provide any financial support for Child, she often provided Child inappropriate gifts and food, she repeatedly moved in and out of her grandmother’s home, she had a volatile relationship with her mother, and she was subjected to domestic violence from her boyfriend.

The trial court’s findings are wholly inadequate to support the termination of Mother’s parental rights. First, the court failed to describe the past acts that led to its prior adjudication of neglect. The trial court’s findings fail to explicitly consider whether Mother’s past acts of neglect provide an indication of the likelihood of future neglect. The court made no finding that Mother was likely to repeat any such acts in the future.

Second, the court failed to find that Mother’s failures to provide support or age-appropriate toys had or would interfere with her future ability to provide adequate food, clothing or shelter to any of her children while she had physical custody. Mother brought gifts, clothing or food to each of her twice-monthly visits with Child. DFS considered some of the toys inappropriate, because they were not age-appropriate. DFS also objected to Mother bringing McDonald’s food and drink to Child and told her to bring more healthy snacks. Mother complied with their requests and brought Child fruit on other occasions. Very little evidence was offered at the trial about Mother’s financial resources. She did have some short-term minimum wage jobs. An investigative report prepared by DFS indicated Mother had earned a grand total of $574.67 from July 2002 until March 2008. This amount is hardly sufficient to show that Mother was financially able to pay child support. The record shows limited information about any other sources of income, such as SSI, which Mother might have. The court’s findings in this regard are insufficient to support termination on this ground.

Finally, the court found that Mother had changed residence several times, had a volatile relationship with her mother, and was the victim of domestic violence. However, the court failed to find whether or to what degree this conduct detrimentally impacted her children or whether it indicates future neglect is likely. Indeed, the record shows that none of the domestic violence in question occurred in front of Child. Mother does not currently live with an abusive partner and none of her partners ever injured her children. There was ample evidence that Mother had never abused or intentionally harmed Child and that she loved him. While Mother had moved several times, she initially moved out of her grandmother’s house because of DFS’s recommendation. She finally returned to her grandmother’s house, where she lived at the time of the termination hearing. She receives financial assistance from her grandmother and mother, who also lives there. She also had transportation and childcare at that home. While the evidence does show that she has loud arguments with her mother on occasion, such a finding cannot rise to the level of neglect on its own. Therefore, the trial court’s findings are insufficient.

The trial court’s findings are insufficient to support termination under Section 211.447.4(2), because they fail to consider whether any past acts of Mother will result in future harm as required by K.A.W., 133 S.W.3d at 10. Moreover, the limited findings that were provided were insufficient alone to support termination under Section 211.447.4(2). However, as noted above, we may affirm the trial court’s judgment if the evidence is sufficient to support any one ground for termination. Therefore, we address the trial court’s reliance on section 211.447.4(3).

In her second point, Mother argues the trial court erred in terminating her parental rights pursuant to Section 211.447.4(3), commonly called the “failure to rectify” pi-ovision. She asserts there was insufficient clear, cogent, and convincing evidence to support the court’s findings that the conditions in that section exist and warrant termination.

Section 211.447.4(3) provides that grounds for termination exist if:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
(a) The' terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control.

The ultimate issue when applying this subdivision of the statute “is the continued existence of an unremedied, neglectful situation.” In the Interest of B.S.B., 76 S.W.3d 318, 333 (Mo.App. W.D.2002). The purpose of paragraphs (a) and (b) is to ensure that all reasonable means to help the parents remedy the adverse conditions are utilized, and that courts will not terminate parental rights where such efforts have not been made. Id. For termination of parental rights to be supported by a failure to rectify, it must be based on a “determination that conditions of a potentially harmful nature continued to exist as of the termination, rather than a mere finding that conditions that led to the assumption of jurisdiction still persisted.” K.A.W., 133 S.W.3d at 10.

In making its findings, the trial court ruled that there was no evidence Mother had a mental condition that rendered her unable to provide the necessary care, custody and control of her children. It also ruled that Mother did not suffer from a chemical dependency. Instead, the trial court relied almost exclusively on Section 211.447.4(3)(a) and, to some extent, upon Section 211.447.4(3)(b). Here, the trial court’s findings that the conditions in Section 211.447.4(3) existed simply tracked the general language of the statute with little elaboration. The court’s conclusory findings regarding Mother’s failure to rectify are insufficient because they fail to specify which conditions led to the assumption of jurisdiction and which of these conditions still remained at the time of trial. Therefore, we are unsure which conditions the trial court found led to the assumption of jurisdiction and which of these conditions persisted. If the court relied upon the portion of the statute that “conditions of a potentially harmful nature continue to exist,” the court, failed to specifically list those conditions or that there is little likelihood those conditions will be remedied at an early date. See, In the Interest of C.N.G., 89 S.W.3d 564, 566-67 (Mo.App. W.D.2002).

As to Section 211.447.4(3)(b), the trial court merely found that Mother had “failed on a continuing basis since April 22, 2002, to adjust her circumstances or conduct to provide a proper home for [Child] despite diligent, reasonable, and continuing efforts by DFS to aid her in doing so.” The trial court made conclusory statements that DFS’s efforts were unsuccessful, but failed to make specific findings as required by statute. See, A.S.O., 52 S.W.3d at 66. Conclusory findings are insufficient under this subdivision. See, C.N.G., 89 S.W.3d at 567-68. The court’s findings again merely tracked the language of the statute and are insufficient.

The court’s findings regarding the social services plan under Section 211.447.4(3)(a), although more detailed, do not cure the other deficiencies in the judgment. The court did make specific findings about what the service plan required, how Mother complied, and Mother’s failures. If the court had made adequate findings on the other aspects of Section 211.447.4(3), then, as a whole, its findings might have been sufficient under Section 211.447.4(3). Yet, on their own, the findings under subdivision (a) are insufficient. A parent’s failure to comply with a written service plan does not, in itself, constitute a ground for terminating parental rights. In the Interest of S.J.H., 124 S.W.3d 63, 67 (Mo.App. W.D.2004). Non-compliance is merely a factor to consider in deciding whether the grounds set out in Section 211.447.4(3) exist. Id. The statute requires the trial court to consider “the extent to which the parties have made progress in complying with [the service agreement’s] terms,” not whether the compliance was full or substantial. S.J.H., 124 S.W.3d at 68 quoting Section 211.447.4(3)(a).

Here, the trial court did not discuss how Mother’s progress, or lack of progress, with the social services plan impacted on her future ability to parent Child. In addition, many of the court’s findings under Section 211.447.4(3)(a) were similar to its limited findings under Section 211.447.4(2), which we concluded were insufficient to support termination. As such, these findings alone are insufficient to support termination under Section 211.477.4(3) and additional findings are necessary.

The portion of the judgment terminating Mother’s parental rights under section 211.447.2(1) is reversed. The remainder of the judgment terminating her parental rights under sections 211.447.4(2) and 211.447.4(3) is reversed and remanded for further hearing and findings consistent with this opinion.

WILLIAM H. CRANDALL, JR., J. and CLIFFORD H. AHRENS, J., concur.

      . The court also terminated the parental rights of Child’s father by consent. He does not appeal.

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

      . Sister was returned to Mother’s physical custody in February of 2002, but was later removed again.

      . Section 211.447.4(2) no longer requires the prior neglect to have been "adjudicated.” See, Section 211.447.2(2), RSMo 1994.

      . The Juvenile Officer points out that the trial court did make a finding of a mental condition. However, the trial court's findings on this factor are that "there was no evidence” that Mother suffered from a mental condition which could not be reversed and which renders her unable to knowingly provide the necessary care, custody and control for Child, "except that she has been, diagnosed with, and takes medication for depression. Mother is also diagnosed with mildly mentally retarded.” This finding is, at best, inconclusive as to whether the trial court actually determined Mother’s diagnoses rendered her unable to care for Child. Because there are no other findings at all to indicate exactly what the trial court meant, we conclude the court found the factor to be insignificant. The Juvenile Officer does not argue otherwise.

      . See footnote 5, supra.

      . This court also notes that many of the court’s findings required under Section 211.447.6 are conclusory statements without reference to specific evidence. See, e.g., In the Interest of K.C.M., 85 S.W.3d 682, 697-98 (Mo.App. W.D.2002). While we are not considering the effect of this omission, because of our remand, the trial court is free to revisit its findings as to Section 211.447.6.


text:
    Gary L. TURNER, Plaintiff/Appellant, v. HEALTHCARE SERVICES GROUP, INC., and Tim Hubka, Defendants/Respondents.
    No. ED 85263.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 8, 2005.

      Veronica Johnson, St. Louis, MO, for Appellant.
    Rodney A. Harrison, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Gary Turner (Appellant) appeals from the trial court’s judgment dismissing one of his claims against Healthcare Services Group, Inc. (HSG) and both of his claims against Tim Hubka (Hubka). The appeal is dismissed.

Appellant brought, suit against HSG and Hubka. Counts I and II alleged race discrimination and retaliatory discharge under the Missouri Human Rights Act (MHRA) against HSG. Counts III and IV alleged race discrimination and retaliatory-discharge against Hubka, Appellant’s former supervisor. On September 8, 2004, the trial court entered a judgment dismissing Counts II and IV for retaliatory discharge because Appellant failed to exhaust his administrative remedies. The court also dismissed Counts III and IV against Hubka, finding there was no individual liability under the MHRA.

The next day, September 9, 2004, HSG filed a notice of removal to the United States District Court, Eastern District of Missouri, with a certificate of service to Appellant’s counsel. HSG also filed notice of this removal with the trial court on the same date. On October 7, 2004, Appellant filed his notice of appeal with the trial court from the 9/8/04 judgment.

HSG has filed a motion to dismiss Appellant’s appeal. HSG argues that this Court does not have jurisdiction over the appeal for two reasons. First, the case has been removed to federal court, which resulted in an immediate termination of state court jurisdiction. Second, HSG argues that the 9/8/04 judgment did not dispose of all claims, and thus, is not a final, appealable judgment. Appellant has filed suggestions in opposition to the motion to dismiss, in which he argues that removal was improper and thus, state court jurisdiction continues. In addition, Appellant argues that the dismissal of Counts II, III, and IV, coupled with the removal of Count I to the federal court, results in a final, appealable judgment. HSG has filed a reply to Appellant’s suggestions in opposition.

We agree with HSG’s motion to dismiss. The law is clear that once removal to the federal court has been effected, the state court “shall proceed no further unless and until the case is remanded.” 28 U.S.C. section 1446(d) (2004); State ex rel. Nixon v. Moore, 108 S.W.3d 813, 816 (Mo.App. W.D.2003). Removal is effected by three procedural steps: (1) the filing of the notice of removal in the federal court; (2) providing written notice to all adverse parties; and (3) the filing of a copy of the notice of removal with the clerk of the state court. 28 U.S.C. sec. 1446(d); 14C Wright, Miller & Cooper, Federal Practice and Procedure section 3737, at 381 (3d ed.1998). After removal, the state court loses jurisdiction until the federal court restores it. Ward v. Resolution Trust Carp., 972 F.2d 196 (8th Cir.1992). State court jurisdiction is only restored once a remand order is certified and mailed to the state court. Nixon, 108 S.W.3d at 819-20. HSG completed the three procedural steps on September 9, 2004, and state court jurisdiction was terminated at that time. Therefore, this court does not have jurisdiction to consider Appellant’s appeal.

Appellant’s various arguments concerning the propriety of the removal do not affect our conclusion. Even if the basis of removal is improper, the state court loses jurisdiction while the federal court determines the propriety of removal and until the federal court remands the case. Nixon, 108 S.W.3d at 817; See, e.g., Eastern v. Canty, 75 Ill.2d 566, 27 Ill.Dec. 752, 389 N.E.2d 1160, 1162 (1979). Therefore, our only course of action is to dismiss Appellant’s appeal.

Even if we agreed with Appellant’s argument that removal was improper and that somehow this Court still had jurisdiction under federal law, the 9/8/04 judgment did not dispose of all claims. An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). The trial court may certify for appeal a judgment as to fewer than ’ all claims by expressly designating that “there is no just reason for delay.” Id.

Here, Count ! of Appellant’s petition is still pending, albeit in federal court. The trial court only ruled upon Counts II, III, and TV. In addition, the trial court did not expressly designate in its judgment that “there is no just reason for delay.” Therefore, the court’s order is still subject to revision and is not a final, appealable judgment. Accordingly, the appeal must be dismissed for lack of a final judgment. Id.

We are not persuaded by Appellant’s argument that the removal of this case to federal court resulted in disposal of all of his claims. As HSG’s counsel has aptly noted, removal resulted in the entire cause of action being removed to the federal court, not simply one claim. See, 14C Wright, Miller & Cooper, Federal Practice and Procedure section 3738, at 390-91; Moore v. Interstate Fire Ins. Co., 717 F.Supp. 1193, 1195 (S.D.Miss.1989). If the federal court determines removal was proper, the entire case, including any appeal, will proceed in federal court. If removal was improper, then the entire case will be returned to the state court. In either event, Appellant’s claim against HSG is still pending.

HSG’s motion to dismiss is granted. The appeal is dismissed without prejudice for lack of a final, appealable judgment.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., Concur.


author: GLENN A. NORTON, Judge.

text:
    Debra Ann GOVONI f/k/a Baum, Appellant, v. Randy BAUM, Respondent.
    No. ED 84187.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 8, 2005.

      Mary Ann Weems, Clayton, MO, for appellant.
    James E. Wynne, St. Louis, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

Debra Baum (“Wife”) appeals the judgment dismissing her motion to modify an Illinois child support order and her motion to hold Randy Baum (“Husband”) in contempt for failure to comply with that order. We affirm in part and reverse in part.

I. BACKGROUND

An Illinois court entered a dissolution judgment in which Husband was ordered to pay Wife child support. Wife and the children relocated from Illinois to St. Louis County. Husband has continuously lived in Illinois. Wife registered the child support order with the St. Louis County circuit court and filed, in that court, the instant motions to modify the support order and to hold Husband in contempt for failing to comply with that order. On Husband’s motion, the court dismissed both of Wife’s motions for lack of subject matter jurisdiction. Wife appeals.

II. DISCUSSION

Jurisdiction is a question of law that we review de novo. Brady v. Brady, 39 S.W.3d 557, 562 (Mo.App. E.D.2001).

A. Jurisdiction to Modify the Foreign Support Order

Missouri has adopted the Uniform Interstate Family Support Act, under which a Missouri court may modify a foreign child support order registered in this state only if: (i) the child, obligee and obligor do not reside in the state that issued the support order; (ii) the petitioner seeking modification is not a resident of Missouri; and (iii) the respondent is subject to personal jurisdiction in the Missouri circuit court. Section 454.973(a)(1) RSMo 2000. In this case, Husband, the obligor, still resides in the issuing state, Illinois, and Wife, the petitioner, is a resident of Missouri. See sections 454.973(a)(1)® and (ii). Either of these facts alone deprives Missouri of jurisdiction to modify this Illinois order. See, e.g., State ex rel. Havlin v. Jamison, 971 S.W.2d 938, 939-40 (Mo.App. E.D.1998) (where obligor resides in issuing state, Missouri court lacks subject matter jurisdiction to modify and other elements of statute need not be addressed).

Wife does not attempt to argue that the prerequisites to jurisdiction are met. Rather, she contends that under Kerr v. Kerr, a Missouri court may modify a foreign support order as long as a court in the issuing state could have. 100 S.W.3d 912, 915 (Mo.App. W.D.2003). But that case dealt with section 454.973(c), which prohibits a Missouri court from modifying any aspect of a foreign support order that could not be modified under the issuing state’s law. Kerr did not even address the prerequisites to jurisdiction set forth in section 454.973(a) and does not support Wife’s contention that those requirements are inapplicable here. Moreover, unlike this case, in Kerr all of the requirements of section 454.973(a) were met: neither the child, nor the obligee, nor the obligor resided in the issuing state; the petitioner was not a resident of Missouri; and the circuit court had personal jurisdiction over the respondent as she was a Missouri resident. See id. at 913. Kerr has no bearing on this case.

The trial court properly dismissed the motion to modify the Illinois child support order for lack of subject matter jurisdiction. Point I is denied.

B. Jurisdiction to Enforce the Foreign Support Order

Wife contends that even if the Missouri court had no jurisdiction to modify the Illinois support order, once it was registered, the order could be enforced by a Missouri court. We agree.

There is no dispute that this Illinois order was registered in Missouri. A Missouri court shall recognize and enforce a registered order if the issuing tribunal had jurisdiction. Section 454.953(c). The registered order “is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Section 454.953(b); see also section 454.971 (“A tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered order may be modified only if the requirements of section 454.973 have been met.”). Contempt is one of the expressly authorized means of enforcement. See section 454.890(b)(1)-(12) (describing powers of court in proceedings under the Act, including to “(5) enforce orders by civil or criminal contempt, or both”). Thus, while Missouri must recognize Illinois continuing, exclusive jurisdiction to modify the support order because Husband still resides in Illinois, that order is nevertheless enforceable in Missouri. See section 454.867(d); see also 750 ILCS 22/205(a); see also Unif. INTERSTATE Family SuppoRT Act, comment to section 205 (regarding continuing and exclusive jurisdiction) and comment to section 603 (regarding effect of registration for enforcement).

Husband argues that the court lacked personal jurisdiction over him and, therefore, could not enforce the Illinois order against him. Section 454.857 provides that a Missouri court may exercise personal jurisdiction over a nonresident respondent in a proceeding to enforce a support order if “the individual submits to the jurisdiction of this state ... by filing a responsive document having the effect of waiving any contest to personal jurisdiction.” Section 454.857(2). Under Rule 55.27(g)(1)(A) (2003), the defense of lack of jurisdiction over the person is waived if it is omitted from a motion raising other threshold defenses or if the defense is neither made by motion nor included in a responsive pleading. Here, Husband raised one threshold defense — lack of subject'matter jurisdiction — in his motion to dismiss, but did not challenge the court’s personal jurisdiction over him in that motion. Neither Husband’s “special entry of appearance” — in which he asserts that his appearance is to “contest the jurisdiction of this Court”— nor the challenge to personal jurisdiction included in a memorandum filed months after the motion are sufficient to preserve the issue where the motion itself did not raise an objection to personal jurisdiction.

Husband submitted to the jurisdiction of this state, and the court had the authority to enforce the registered Illinois child support order by way of Wife’s motion for contempt. The trial court erred by dismissing that motion for lack of subject matter jurisdiction. Point II is granted.

III. CONCLUSION

To the extent the judgment dismisses the motion for contempt, it is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J. concurring.

      . In certain circumstances, the parties may consent to having a Missouri court modify a foreign judgment, but that has not occurred here. Section 454.973(a)(2). All statutory references are to RSMo 2000, unless otherwise noted.


text:
    Yolanda FRENCHIE, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondents.
    No. ED 85323.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 8, 2005.
    Yolanda Frenchie, Florissant, MO, for Appellant.
    Durham School Services, L.P., Phoenix, AZ, Cynthia A. Quetsch, Jefferson City, MO, for Respondents.
   GEORGE W. DRAPER III, Chief Judge.

Yolanda Frenchie (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. The appeal is dismissed.

On February 23, 2004, a deputy with the Division of Employment Security concluded that Claimant had been overpaid $304 in unemployment benefits, because she had received benefits during two weeks of disqualification. Claimant filed an untimely appeal to the Appeals Tribunal, which dismissed her appeal. She then filed an application for review with the Commission, which affirmed the Tribunal’s dismissal. The Commission mailed its decision to Claimant on September 8, 2004. Claimant filed a notice of appeal to this Court on October 23, 2004.

A claimant has twenty days to file an appeal from a final decision of the Commission. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on September 8, 2004. The decision became final ten days later and the notice of appeal was due twenty days thereafter on October 8, 2004. Sections 288.200, 288.210. The Secretary to the Commission has certified that Claimant filed her notice of appeal on October 23, 2004, well after the notice of appeal was due.

This Court has a duty to determine sua sponte whether it has jurisdiction. Rissman v. VSM Abrasives Corp., 136 S.W.3d 851 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has filed a response. Claimant asserts that she was debating on whether to file an appeal and did not receive the appeal form until September 23, 2004.

An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Thomas v. St. Martin’s Childcare Center, 127 S.W.3d 704, 705 (Mo.App. E.D.2004). Regardless of the reasons for the lateness of Claimant’s appeal, this Court does not have jurisdiction. Section 288.210 sets forth stringent guidelines for the filing of the notice of appeal and fails to make any provision for late filing. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Moreover, Claimant received the notice of appeal form well within the time to timely file her notice of appeal. Our only recourse is to dismiss her appeal.

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN and ' GLENN A. NORTON, JJ., concur.


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    STATE of Missouri, Respondent, v. Joseph JACKSON, Appellant.
    No. ED 84228.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Craig. A. Johnston, Columbia, MO, for appellant.
    'Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Joseph Jackson appeals the judgment entered upon a jury verdict convicting him of murder in the first degree, robbery in the first degree, and two counts of armed criminal action. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


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    Richard BREEN, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84523.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.

      Jessica Hathaway, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Movant Richard Breen appeals the motion court’s order denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.034(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying Mov-ant’s Rule 24.035 motion for post-eonviction relief is affirmed. Rule 84.16(b).


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    Timothy FERNANDEZ, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84492.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Gwenda R. Robinson, District Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Timothy Fernandez appeals the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


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    Johnie WILKERSON, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 84862.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.

      Gwenda Renee Robinson, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy; Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Johnie Wilkerson (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. A jury convicted Movant of: one count of first-degree murder, in violation of Section 565.020 three counts of armed criminal action, in violation of Section 571.015; and two counts of first-degree assault on a law enforcement officer, in violation of Section 565.081. The trial court sentenced Movant to: life imprisonment without parole on the murder conviction; life imprisonment on one of the armed criminal action convictions; twenty years’ imprisonment on each of the remaining two armed criminal action convictions; and twenty years’ imprisonment on each of the first-degree assault convictions. The terms of life imprisonment are consecutive to one another and concurrent to all of the other counts; all of the twenty-year terms are concurrent to one another. Movant appealed the judgment of his conviction and sentence, and this Court affirmed in State v. Wilkerson, 100 S.W.3d 820 (Mo.App. E.D.2003).

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

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


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    STATE of Missouri, Respondent, v. Christy STRINGFELLOW, Appellant.
    No. ED 84560.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2005.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., William R. Kennedy, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Christy Stringfellow (“Defendant”) appeals from the judgment after a bench trial finding her guilty of one count of child endangerment in the first degree in violation of section 568.045 RSMo 2000. Defendant contends that the trial court erred in overruling her motion for acquittal at the close of the evidence in that the State of Missouri (“State”) failed to prove its case beyond a reasonable doubt.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


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    Nikki NORTHCROSS-MYER, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 84226.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Nikki Northeross-Myer (Movant) appeals from the motion court’s judgment denying her Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant pled guilty in Case No. 02CR3599 to two counts of felony stealing over $750, in violation of Section 570.030 The trial court sentenced Movant to two concurrent terms of six years, to be served concurrently with sentences she was already serving. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

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