author: RONALD R. HOLLIGER, Presiding Judge.

text:
    David M. DOERHOFF, Appellant, v. Rachelle L. SALMONS, Respondent.
    No. WD 63751.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Kenneth C. Hensley, Raymore, for Appellant.
    James Edward Hoke, Harrisonville, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

David Doerhoff (“Father”) appeals from a judgment modifying a joint custody decree that reduced his overnight parenting time with his two children from approximately either 130 or 150 nights per year to between 73 and 89 nights per year. Finding that the trial court’s judgment was not supported by substantial evidence, we reverse the judgment and remand the case for further proceedings.

Factual and Procedural BackgRound

The marriage of David Doerhoff (“Father”) and Rachelle Salmons (“Mother”) was dissolved in 1999. There was one child born of the marriage and one child adopted during the marriage. The children are currently ten and eight years of age. In the dissolution judgment, the parties were awarded joint physical and legal custody of the children. Pursuant to the parenting plan adopted by the court and incorporated into the dissolution decree, Father was to receive the following parenting time:

(1) 5:00 p.m. Saturday to 8:00 p.m. Sunday every other weekend
(2) Every other Monday from 5:00 p.m. until 8:00 am. Tuesday
(3) Every other Wednesday from 5:00 p.m. until 8:00 a.m. Thursday
(4) Every Friday from 5:00 p.m. until 5:00 p.m. Saturday

This yielded roughly 130 overnights with Father per year, subject to variation based upon holidays and special occasions that took precedence over the regular schedule. The parenting plan also provided that each parent would receive an unspecified period of “extended time for the purpose of taking the children on vacations,” with the parties directed to agree each year on what those periods would be.

The parties, however, did not follow that schedule after entry of the dissolution judgment. Instead, on alternating weeks, Father would pick the children up after school on Thursday and have parenting time with them until he would drop them off to school the following Monday morning. On the other weeks, Father would pick up the children on Thursday afternoon and take them to Mother’s residence Saturday afternoon. This yielded Father nearly 150 overnights with the children per year, again subject to variation due to holidays and other occasions.

The parties without judicial confirmation or apparent problem followed this schedule until late 2002. At that time Father requested, as a benefit to his work schedule, that parenting time be alternated on a weekly basis. The parties engaged in mediation and allegedly reached some agreement that was never reduced to writing. In early 2003, the parties briefly tried this schedule where each parent would have the children in alternating weeks. After the second week, Mother insisted that the schedule be discontinued, as she believed the children did not adapt well to that schedule. Rather than return to the schedule they had been actually following, however, Mother insisted, apparently due to advice of counsel, upon following the schedule that had been incorporated into the dissolution decree (but had never been followed by the parties). At some point in this process Father filed a motion to modify alleging that there had been a change in circumstances and that the best interests of the children required a modification. Parenting time thereafter proceeded pursuant to the original dissolution schedule until the modification trial below. Father’s motion to modify alleged several changes of circumstances, particularly the fact that the parties had not followed the parenting time schedule in the dissolution decree for the first two years following that prior judgment.

The matter proceeded to trial. In its judgment, the court adopted Mother’s proposed parenting plan. Under that parenting plan, Father was granted parenting time with the children on alternating weekends from 5:00 p.m. Friday to 5:00 p.m. on Sunday, as well as every Tuesday from 4:00 p.m. until 8:00 p.m. He was also given parenting time with the children during the summers: he would have the children for two weeks, then Mother would have the children for one week, then Father would have them for two weeks, and so on. Each parent would also have an uninterrupted two-week period with the children for taking vacations. It also included provisions for the division of time with the children for holidays and special occasions. The court said that the parties retained joint legal and physical custody of the children.

Father appeals.

Discussion

In reviewing a judgment modifying the custody provisions of a prior dissolution decree, we may reverse only upon a showing that the judgment erroneously declared or applied the law or that the judgment was not supported by substantial evidence or was against the weight of the evidence. Suffian v. Usher, 19 S.W.3d 130, 135-36 (Mo. banc 2000). We view the evidence and permissible inferences we may draw therefrom in the light most favorable to the trial court’s judgment. Id. However, we cannot supply missing evidence or give a party the benefit of unreasonable, speculative, or forced inferences. Joel Bianco Kawasaki Plus v. Meramec Valley Bank, 81 S.W.3d 528, 537 (Mo. banc 2002).

Father presents two points on appeal. He first contends that the trial court erred on the grounds that its adoption of Mother’s parenting plan was not supported by substantial evidence and was against the weight of the evidence.

As Father was seeking to modify a prior joint custody decree, it was his burden to allege and prove that a change of circumstances necessitated modification of the prior decree. Having pleaded and presented evidence of changed circumstances, he is effectively bound by the decision of the modification court finding a change of circumstances. Mother seizes upon this and argues that Father, whose overnights were reduced in the modification judgment, cannot now complain at least on the basis that there was no change of circumstances. Thus, Father is relegated to arguing that the modification order was not in the best interests of the children.

Crucially, in our view, the trial court was faced with the issue of modifying a judgment that had never been followed by the parties. Instead, for three years, the parties had followed a division of parenting time that yielded Father roughly 150 overnights with the children. We acknowledge that, from a legal standpoint, a modification court must look to the last court decree in determining whether there has been a change of circumstances. See Meyer v. Block, 123 S.W.3d 316, 321 (Mo.App.2003). Nevertheless, the trial court, having determined that there had been a change of circumstances and engaging in its best interests analysis, should consider the practical reality that the parties have devised and followed their own schedule without substantial problem in evaluating what parenting time schedule would be in a child’s best interests.

Father contended that there had been a change of circumstances because, after the failed two-week test where each parent had the children in alternating weeks, Mother insisted on performance with the original decree schedule, as opposed to returning to the de facto schedule that they had actually employed for three years. It appears, based upon her testimony, that Mother’s position was based upon advice of counsel, rather than a belief that the parenting time schedule in the decree was in the children’s best interests. In fact, Mother agreed that the original decree was not in the children’s best interests.

As with any other issue regarding child custody, in determining whether a particular parenting plan would be in a child’s best interest, the trial court must consider a number of factors. Among the factors to be considered is providing for frequent, continuing, and meaningful contact with both parents. § 452.375.2(1), RSMo. The trial court’s judgment, here, represents a dramatic reduction in Father’s parenting time and the frequency of such parenting time. The modification judgment allocates him between roughly forty and fifty-seven fewer overnights compared to the parenting plan from the dissolution judgment. Compared to the parenting time Father received under the parenting time informal arrangement followed by the parties after the dissolution, the modification nearly halves Father’s parenting time with the children.

Parenting time need not be divided equally between the parents in a joint custody context. Simon-Harris v. Harris, 138 S.W.3d 170, 178 (Mo.App.2004). Nor do we suggest that the modification, here, is per se improper when the parents share joint physical custody. The question, here, is whether there was an evidentiary basis supporting the modification ordered by the court. Modification is proper only when there is substantial evidence in the record that modification would be in the child’s best interests. See Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo.App.2001). Thus, in order to substantially curtail one parent’s parenting time in a modification judgment, there must evidence to support that reduction. In other words, there must be evidence in the record to show that such alteration in parenting time is in the child’s best interests.

On appeal, Mother takes the position that the parenting plan adopted by the court was supported by substantial evidence and that it was in the children’s best interests because it provided a stable schedule for them that would not interfere with their schooling and extracurricular activities, while still affording adequate parenting time with the children. A trial court must consider a child’s adjustment to his or her home, school, and community in conducting a best interests analysis. See Section 452.375.2(5), RSMo.

There was minimal evidence regarding the children’s school and extracurricular activities presented at trial, however. Mother testified that one child was participating in soccer while the other one had participated in soccer, as well, but had recently begun to pursue gymnastics, instead. There was no testimony or other evidence apparently offered, however, with regard-to the children’s actual schedule of activities. The only evidence with regard to what impact parenting time with Father would have on the children’s participation in extracurricular activities, was that the parenting time schedule from the original dissolution decree (that had, again, only been followed for a short time prior to the filing of Father’s motion to modify) was difficult to observe due to the children’s school activities. A child’s extracurricular activities may be an appropriate consideration in allocating parenting time between parents. However, for this consideration to be a basis for a substantial reduction in Father’s parenting time, there must be substantial evidence regarding those activities and how they necessitate such a reduction. Here, there was no substantial evidence regarding the children’s extracurricular activities or how they related to Father’s parenting time. Thus, the trial court could not use this as a proper basis for supporting a finding that the parenting plan adopted by the court, reducing Father’s parenting time, was in the children’s best interests.

The trial court, in verbally announcing its judgment, discussed its belief that “the children need to be in one location at night after school.” However, the only evidence to suggest that the children had been negatively impacted in any manner by a schedule where they spent some school nights with Father and some with Mother was the alternating week schedule that was briefly attempted by the parties. As discussed above, there was also testimony that the parenting time schedule from the original decree was difficult to follow due to the children’s extracurricular activities. There was no evidence that the schedule that the parties had actually followed after the dissolution had any adverse effect on the children.

While we must view the evidence in the light most favorable to the judgment, the record must contain sufficient evidence to support a conclusion that the modified parenting plan adopted by the court is in the children’s best interests. See Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App.1982) (trial court can only act to modify custody upon presentation of facts that show that a change of custody is in the child’s best interests). Here, there is no such evidence to support that finding, either directly or by reasonable inference.

We, therefore, conclude that the trial court’s judgment is not supported by the evidence and sustain Father’s first point on appeal. As this issue is dispositive, we do not reach his second point on appeal, which contends that the trial court erred in adopting Mother’s parenting plan because she failed to include any affirmative prayer for relief in her pleadings.

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

PATRICIA A. BRECKENRIDGE, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . The parties disagree as to how many overnights Father receives under the modification judgment. Father takes the position that this parenting plan yields him only 73 overnights with the children per year. Mother contends that Father actually receives at least 89 overnights under that judgment. As will be discussed below, under either party’s calculation, the modification judgment constitutes a significant reduction in Father’s parenting time.

      . Section 452.375.2(1), RSMo, requires that the court consider the wishes of the child’s parents as a factor in determining custody issues. While those wishes are often presented through the parenting plans proposed by the parties and testimony by the parents, the course of the parents’ conduct prior to the filing of a motion to modify can sometimes shed light on those wishes, as well.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Rondell CORNELIUS, Appellant.
    No. WD 62679.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Nancy A McKerrow, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

Rondell Cornelius appeals from his conviction in a court-tried case of three counts of felony murder, § 565.021.1(2), and one count of arson, § 569.040. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).


author: LISA WHITE HARDWICK, Judge.

text:
    Charles I. GREWELL, et al., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Neressa L. Wilkins, Respondents.
    No. WD 64077.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Bruce B. Brown, Keaney, MO, for appellants.
    Michael E. McCausland, Kansas City, MO, for respondents.
    Before: HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

Charles and Linda Grewell appeal from a summary judgment, which denied their claims for attorney’s fees and punitive damages against State Farm Mutual Automobile Insurance Company in this action for declaratory judgment and breach of fiduciary duty. Because we find there were genuine issues of material fact on both claims, we reverse and remand.

Factual and PROCEDURAL History

Linda Grewell and James Kephart were involved in a motor vehicle collision on May 1, 2000. Both were insured by State Farm. The insurer assigned Neressa Wilkins as claims specialist for Mrs. Grewell, while Tom Prawl was assigned to Mr. Kep-hart. Ms. Wilkins initially assessed Mrs. Grewell’s fault at twenty percent. Mr. Prawl assessed Mrs. Grewell’s fault at fifty percent, after which Ms. Wilkins changed her assessment of Mrs. Grewell’s fault to fifty percent.

Mrs. Grewell and her husband, Charles Grewell, objected to Ms. Wilkins’ changed assessment of fault and requested the contents of their claims file. State Farm denied the request, asserting a work product privilege. Following the Grewells’ second request for the file, State Farm provided a partial disclosure of the requested information.

In December 2000, the Grewells filed a declaratory judgment action, seeking declaration of a special relationship between the insured and insurer that would require full disclosure of the claims file. The petition sought punitive damages and recovery of attorney’s fees. State Farm filed a motion to dismiss, asserting that Missouri did not recognize a special relationship between the insured and insurer. State Farm also argued the claims file was protected from disclosure under the work product doctrine. The trial court found no special insured/insurer relationship existed under Missouri law and dismissed the declaratory judgment action.

The Grewells appealed and, on transfer from the Court of Appeals, the Supreme Court reversed the dismissal and remanded the case. Grewell v. State Farm Mut. Auto. Ins. Co., 102 S.W.3d 33, 36-37 (Mo. banc 2003). (“Grewell 7”). The Court determined that when an insurance claim involves potential liability, the relationship between the insurer and insured attains a protected status analogous to that of the attorney/client relationship under Missouri law. Id. One of the protections arising from this special relationship is that the claims file belongs to the insured and not to the insurer. Id. at 37. Thus, the Court held that State Farm should provide the Grewells with “free and open access” to their claims file. Id.

Two months after the Supreme Court reversed and remanded the ease, State Farm allowed the Grewells to review the entire claims file. The Grewells requested copies of several documents, totaling about seventy pages. State Farm provided copies of some of the claims file documents but did not release thirty-seven pages of activity logs and a two-page “Identification and Investigation Report.” State Farm contended the logs and investigation report were comparable to an attorney’s work product and, thereupon, refused to provide copies of the documents.

In September 2003, while the case was still on remand, the Grewells filed an amended three-count petition against State Farm. In Count I, the Grewells sought a declaratory judgment that they were entitled to copies of all documents in the claims file based on the decision in Grewell I. In Count II, they sought recovery of attorney’s fees during the appeal and on remand based on State Farm’s continuing refusal to copy and release the claims file documents. In Count III, the Grewells asserted a claim for punitive damages based on breach of the fiduciary relationship between the insurer and insured.

The parties filed cross-motions for summary judgment on all three counts. The circuit court granted the Grewells! motion on Count I and ordered State Farm to provide copies of all documents in the claims file. The court granted State Farm’s motion on Counts II and III, thereby denying the Grewells’ request for attorney’s fees and punitive damages. The Grewells appeal the summary judgment on Counts II and III.

STANDARD OF REVIEW

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We do not defer to the order granting summary judgment because the circuit court’s judgment is based on the record submitted and amounts to a decision on a question of law. Id. Our standard for reviewing the propriety of summary judgment is the same as that used by the circuit court under Rule 74.04(c)(6) Mo.R.Civ.Pro. (2005): summary judgment can be granted when the moving party establishes that no genuine issue of material fact exists and the party has a right to judgment as a matter of law. Id.

For a movant who is the defending party in a lawsuit, the prima facie showing required by Rule 74.04 is necessarily different. Id. at 381. A defending party can establish a right to summary judgment by showing: ■

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id.

Attorney Fees

In their first point on appeal, the Gre-wells contend the circuit court erred in granting State Farm’s summary judgment motion on Count II because there were sufficient facts to support a claim for attorney’s fees based on “special circumstances.”

In Count II, the Grewells asserted a claim for attorney’s fees under the Declaratory Judgment Act, § 527.010 et seq. The Act authorizes the circuit court to award “costs as may seem equitable and just.” § 527.100. However, costs under section 527.100 do not necessarily include attorney fees. DCW Enters., Inc. v. Terre du Lac Ass’n, Inc., 953 S.W.2d 127, 132 (Mo.App.1997). Rather, the “American Rule” applies to declaratory judgment actions. Id. The American Rule provides that, with few exceptions and absent statutory authorization or contractual agreement, each litigant must bear their own attorney’s fees. Windsor Ins. Co. v. Lucas, 24 S.W.3d 151, 156 (Mo.App.2000).

Missouri courts have limited the American Rule exceptions to those cases involving “very unusual circumstances” or where the natural and proximate result of a breach of duty is to involve the wronged party in collateral litigation. David Ranken, Jr. Tech. Inst. v. Boykins, 816 S.W.2d 189, 193 (Mo. banc 1991), (overruled on other grounds, Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 911 (Mo. banc 1997)). Some courts have also referred to these situations as the “special circumstances” exception. Id.

Special circumstances have been found in very limited fact situations, usually to award attorney’s fees to a trust beneficiary who has successfully pursued litigation beneficial to the estate as a whole. DCW, 953 S.W.2d at 132; see e.g. Feinberg v. Adolph K. Feinberg Hotel Trust, 922 S.W.2d 21, 26 (Mo.App.1996).

Intentional misconduct served as the basis for an attorney’s fee award in a zoning case where the defendant purposely omitted the plaintiffs name from a list of property owners so that the plaintiff would not receive proper notice of a zoning application. Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438 (Mo.App.1989). The court found “special circumstances” existed because the plaintiff would not have incurred attorney’s fees but for the defendant’s intentional omission. Id. at 443. The Supreme Court has also recognized that special circumstances may arise if a defendant’s conduct is frivolous, without substantial legal grounds, reckless, or punitive. Ranken, 816 S.W.2d at 193.

In moving for summary judgment on Count II, State Farm asserted there were no “very unusual circumstances” to warrant consideration of attorney’s fees as an exception to the American Rule. The Gre-wells responded that there were facts to support a finding of special circumstances based on State Farm’s refusal to comply with the Grewell I mandate to provide free and open access to the claims file. The circuit court granted summary judgment and denied the attorney’s fee claim on the ground asserted in State Farm’s motion.

Upon review of the record, we find the facts were sufficient to create a genuine dispute regarding the existence of special circumstances. In Grewell I, the Supreme Court made it clear that an insurance claims file belongs to the insured. 102 S.W.3d at 37. The Court concluded State Farm should provide the Grewells with free and open access to their file. Id. Despite this holding, State Farm refused to release copies of certain file documents based on the work product privilege. State Farm had asserted the same privilege in Grewell I without success. State Farm also continued to assert the privilege even after it had been waived by allowing the Grewells to review the entire file. The factual circumstances reasonably supported the Grewells’ allegation that State Farm’s defense was frivolous, reckless, and without substantial legal grounds.

As discussed in Ranken, special circumstances can also arise when the breach of a legal duty causes the wronged party to become involved in collateral litigation. 816 S.W.2d at 193. Based on the nature of the protected relationship between the insurer and insured, State Farm had a duty to provide the Grewells unimpeded access to the claims file. The breach of that duty necessitated an amended, declaratory judgment action to affirm the Grewells’ right to full disclosure of all documents in the file. These facts provide additional support for the attorney’s fee claim based on special circumstances.

The circuit court erred in granting summary judgment on Count II because State Farm failed to negate an essential element of the attorney’s fee claim. The Grewells presented a genuine issue of material fact as to whether there were special circumstances warranting an award of attorney’s fees. The Count II judgment is reversed and remanded.

Punitive Damages

In their second point on appeal, the Grewells contend the circuit court erred in granting State Farm’s summary judgment on Count III because there were sufficient facts to support a claim for punitive damages based on breach of fiduciary duty.

To make a- submissible case for breach of fiduciary relationship against State Farm, the Grewells had to present facts showing: (1) the existence of a fiduciary relationship between the parties, (2) a breach of the fiduciary duty, (3) causation, and (4) harm. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 411 (Mo.App.2000). Punitive damages may be awarded for breach of a fiduciary duty upon a clear and convincing showing that the defendant acted with evil motive and reckless indifference to the plaintiffs rights. Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App.2004); see also Gibson v. Adams, 946 S.W.2d 796, 804 (Mo.App.1997)(evidence of malicious and wanton conduct was sufficient to support punitive damages award for breach of fiduciary duty); Fabricar v. E.I.DuPont de Nemours, 24 S.W.3d 82, 97 (Mo.App.2000)(punitive damages require evidence of outrageous conduct resulting from evil motive or reckless indifference).

State Farm argues that the circuit court properly granted summary judgment on Count III because: (1) Missouri does not recognize a fiduciary relationship between the insurer and insured; and (2) the Gre-wells failed to present any facts showing the defendant’s evil motive and reckless indifference.

The Grewells cite the holding in Grewell I as authority for the existence of a insured/insurer fiduciary relationship based on the similarities with the attorney/client relationship. The Grewells further contend the facts demonstrated outrageous, evil, and reckless conduct, in that State Farm’s refusal to provide copies of the requested documents was directly contrary to the Supreme Court’s holding that the claims file “belonged” to the Grewells and they should have free and open access to it. We agree with the Grewells that legal authority supports the existence of an insurer/insured fiduciary relationship and the facts were sufficient to avoid summary judgment on the punitive damages claim.

Grewell I did not formally declare that an insurer has a fiduciary duty to the insured, but that conclusion is a logical extension of the Supreme Court’s reasoning. Given the nature of the insurer’s responsibility to defend a claim for potential liability on behalf of the insured, the Court determined the insurer/ihsured relationship is “subject to a privilege analogous to that between an attorney and her client.” 102 S.W.3d at 36. The Court further recognized that this privilege “brings with it some of the additional protections” the attorney/client relationship has traditionally provided, such as the client’s access to his or her own case file. Id. Other Missouri cases have routinely recognized that the nature of an attorney’s responsibility to the client creates a fiduciary relationship. McRentals, Inc. v. Barber, 62 S.W.3d 684, 696 (Mo.App.2001); Jo B. Gardner, Inc. v. Beanland, 611 S.W.2d 317, 320 (Mo.App.1980). In determining the existence of a fiduciary relationship, the key question is whether or not trust is reposed with respect to the property or business affairs of another. Shervin v. Huntleigh Sec. Corp., 85 S.W.3d 737, 741 (Mo.App.2002). When that question is posed in the context of the facts and holding in Grewell I, it seems apparent that an insurer, who is entrusted to defend a claim on behalf of the insured, acts in a fiduciary capacity.

The circuit court erred in granting State Farm’s summary judgment motion on the basis that Missouri does not recognize a fiduciary relationship between the insurer and insured. Gi'ewell I provides authority for such a relationship, and the Grewells presented facts to show State Farm breached its fiduciary duty by refusing to provide copies of the claims file maintained on behalf of the insured. The Grewells have also presented facts to create an inference of evil motive and reckless conduct, in that State Farm’s conduct was directly contrary to the Supreme Court’s instruction to provide the insured with unrestricted access to the file. Accordingly, there was a genuine issue of fact with regard to whether punitive damages should be awarded, and State Farm was not entitled to summary judgment on Count III.

Conclusion

The summary judgment is reversed on Count II and Count III; the cause is remanded for further proceedings on the claims for attorney’s fees and punitive damages in those counts.

All concur.

      . All statutory references are to Revised Statutes of Missouri (2005) unless otherwise noted.


author: PAUL M. SPINDEN, Judge.

text:
    A & L UNDERGROUND, INC., Respondent, v. LEIGH CONSTRUCTION, INC., and Helen G. Leigh, Defendants, and Garney Companies, Inc., Appellant.
    No. WD 64285.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Leonard Wagner, Kansas City, for Appellant.
    Gardiner Davis, Kansas City,'for Respondent.
   PAUL M. SPINDEN, Judge.

Garney Companies, Inc., appeals the circuit court’s judgment against it in a garnishment action by A & L Underground, Inc. Because A & L Underground did not establish that Garney was obligated to A & L Underground’s debtor, we reverse the circuit court’s judgment and remand for a determination of Garne/s costs and attorney fees under Rule 90.12(b).

A & L Underground’s debtors were Leigh Construction, Inc., and Helen Leigh. After learning that Garney had entered into two contracts with Leigh Construction of North Carolina, an entity purportedly distinct from Leigh Construction, Inc., A & L Underground filed this garnishment action against Garney and identified the debtor as Leigh Construction, Inc.

Garney responded that it owed nothing to Leigh Construction, Inc., because its contracts were with Leigh Construction of North Carolina, and it contended that it owed nothing to Leigh Construction of North Carolina. Garney asserted that the work performed by Leigh Construction of North Carolina was defective and that it had not satisfied a condition precedent by supplying claim waivers and paying its subcontractors and suppliers. Garney alleged that it had had to pay the subcontractors and suppliers. A & L Underground asserted that Leigh Construction of North Carolina was the alter ego of Leigh Construction, Inc.

After trial, the circuit court ordered Garney to pay $120,284.10 to the court for it to disburse to A & L Underground. Garney refused, and the circuit court issued a general judgment against Garney. The circuit court erred because A & L Underground presented insufficient evidence that Garney owed money to Leigh Construction of North Carolina.

A garnishor stands in the debt- or’s shoes and can recover only that which the garnishee owes the debtor. Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991). The circuit court focused on whether or not Garney was entitled to set-offs for payments that it had made to Leigh Construction’s subcontractors and suppliers, but it overlooked a more salient preliminary issue: whether or not Leigh Construction had a right to payment in light of its failure to satisfy a condition precedent to payment.

Garney’s contract with Leigh Construction of North Carolina said, “As a prerequisite for payment, [Leigh Construction] shall provide ... partial lien or claim waivers.” Claim waivers ensured Garney that subcontractors and suppliers had been paid and that no one would make claims or assert hens against the project. The circuit court found no evidence that Leigh Construction submitted claim waivers. A & L Underground, therefore, did not establish that Garney had an obligation to pay Leigh Construction. Deutsch v. The Boatmen’s National Bank of St. Louis, N.A., 991 S.W.2d 206, 208 (Mo.App.1999) (satisfying conditions precedent is essential element of breach of contract claim). Because A & L Underground stands in the shoes of Leigh Construction, it has no right to recover from Garney. The circuit court erred in entering judgment against Garney.

A & L Underground argues that the court properly ignored the conditions precedent issue because it asserted causes of action under Florida law for quantum meruit and for “money had and received.” This argument is not persuasive.

Florida and Missouri courts concur that quantum meruit and money had and received are based on equitable principles whereby the law implies a contract to prevent unjust enrichment. E.g., Hull & Company, Inc. v. Thomas, 834 So.2d 904, 906 (Fla.Dist.Ct.App.2003) (“A contract implied in law, or quasi contract, is not based upon the finding ... of an agreement between the parties.”); Kubley v. Brooks, 141 S.W.3d 21, 28 (Mo. banc 2004) (money had and received); KC Excavating and Grading, Inc. v. Crane Construction Company, 141 S.W.3d 401, 408 (Mo.App.2004) 0quantum meruit). Here, because Leigh Construction and Garney had an express contract, the law does not need to imply one. The doctrines of quantum meruit and money had and received have no application.

Finally, Garney requested attorney fees and expenses. Rule 90.12(b) says:

If the garnishor files exceptions to the garnishee’s interrogatory answers but does not obtain a judgment against the garnishee, all of the costs attending such garnishment shall be taxed against the garnishor. The court in such a case shall render judgment in favor of the garnishee and against the garnishor for an amount sufficient to indemnify the garnishee for time and expenses, including attorney’s fees.

Because we reverse A & L Underground’s judgment against Garney and because Rule 90.12(b) is not discretionary, A & L Underground must indemnify Garney for “all of the costs attending such garnishment,” including its attorney fees. We, therefore, remand to the circuit court for Garney to present evidence establishing its costs and reasonable attorney fees incurred in defending this garnishment action.

JOSEPH M. ELLIS, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.


author: RONALD R. HOLLIGER, Judge.

text:
    Richard Scott MAHONEY, Respondent, v. Vickie Chavee MAHONEY, Appellant.
    No. WD 64275.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Robert Paden, Jr., Independence, for Appellant.
    James H. Young, Lee’s Summit, for Respondent.
   RONALD R. HOLLIGER, Judge.

Vickie Mahoney (“Mother”) appeals the judgment of the trial court modifying physical (and, perhaps, legal) custody regarding the sole child of her marriage to Richard Mahoney (“Father”). She first contends that the trial court did not have jurisdiction pursuant to the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. Section 1738A, to make a custody determination with regard to the child. Alternatively, she contends that the trial court’s judgment should be reversed on the grounds that the trial court’s conclusion that the custody modifications were in the child’s best interest was against the weight of the evidence. We find that the court had jurisdiction but reverse and remand for further proceedings.

Factual and PROCEDURAL Background

Mother and Father originally resided in Floi’ida at the time they married in 1997. The parties apparently encountered marital difficulties, and Father moved in August 1998 to Chicago, Illinois, after finding employment in the area. Mother later followed Father and also moved back in with Father. The parties’ sole child was born on February 11, 2000. Roughly two months later, the family relocated to Cedar Rapids, Iowa. In March 2001, however, Father filed for divorce in the Iowa courts. Three months later, Mother moved to Columbia, Missouri.

A judgment issued in the Iowa divorce action on July 31, 2002. That judgment awarded the parties joint legal and physical custody of the child, with mother designated as “primary physical custodian.” Father moved to Blue Springs, Missouri, the following month. He also appealed the divorce judgment.

On August 16, 2003, Mother advised Father of her intention to move back to Florida. Father quickly brought an action in the Circuit Court of Boone County, Missouri, seeking to bar Mother from relocating with the child. That action was dismissed by the court. While the record is unclear as to why that action was dismissed, it is possible that the court’s actions were based upon the still-pending appeal of the Iowa divorce judgment. The Iowa appellate courts ultimately affirmed the divorce judgment on August 27, 2003. The record supplied by the parties does not indicate whether there were any additional proceedings pending in the Iowa courts following that date.

Father then brought the present action in the Circuit Court of Jackson County, Missouri, on September 17, 2003, seeking to bar the relocation of the child to Florida or, alternatively, a judgment modifying the custody award made in the Iowa divorce judgment. The trial court overruled Father’s motion to bar the relocation as moot, but proceeded to trial on his motion to modify, over Mother’s objections that the trial court did not have jurisdiction to determine the custody issue.

The trial court entered its judgment on February 3, 2004. It awarded Father sole physical custody of the child. The judgment also contained language awarding him sole legal custody of the child, but included a parenting plan awarding both parties joint legal custody.

Mother appeals.

Discussion

Mother presents two points on appeal. Mother first argues that the trial court erred by assuming subject matter jurisdiction because, in doing so, it misapplied the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. Section 1738A, in that custody proceedings were still pending in the State of Iowa at the time she moved to Florida. Second, she contends that the trial court erred in awarding Father sole legal and physical custody on the grounds that the weight of the evidence did not support a finding that such an award was in the child’s best interests in that Mother had been the child’s primary caregiver for most of its life, Mother’s schedule would permit her to be home to provide care for the child, and Mother’s relocation to Florida enabled her to provide a family home and support Father could not provide.

Did The Trial Court Have Jurisdiction To Decide The Custody Issue?

We first take up the question of whether the trial court had jurisdiction to decide the custody issue. This presents an issue of law that we review de novo on appeal. Bounds v. O’Brien, 134 S.W.3d 666, 670 (Mo.App.2004). If the court lacked jurisdiction to decide the child custody issue, then the resulting judgment would be a nullity. Love v. Love, 75 S.W.3d 747, 755 (Mo.App.2002).

Whether a state has jurisdiction to determine a child custody issue is determined by the Uniform Child Custody Jurisdiction Act. (UCCJA), codified in Missouri at Section 452.440, RSMo 2000, et seq. In certain situations, however, multiple states might be able to assert jurisdiction to decide a child custody issue under the UCCJA, raising the question of which state should properly decide that issue and the possibility of conflicting custody orders from multiple states. In response to such concerns, Congress enacted the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Section 1738A. The PKPA does not grant or deny trial courts any jurisdiction to determine child custody disputes. Glanzner v. State, 835 S.W.2d 386, 389 (Mo.App.1992). Rather, it sets criteria for determining whether a child custody determination by one state is entitled to full faith and credit by another state. See id. at 393.

The first question to be resolved under the UCCJA is ' determining the child’s “home state.” For a child over the age of six years, as here, the child’s home state is defined as the state in which, immediately prior to the filing of a child custody action, the child had resided for at least six months. Section 452.445(4), RSMo. If a state is determined to be the child’s home state, then the trial court has jurisdiction to determine custody issues regarding that child (ie., the court has “home state” jurisdiction). Section 452.450.1(1)(a), RSMo. If the child no longer resides in the state at the time of filing, but the state was the child’s home state within six months prior to filing of the action, the state will have jurisdiction to determine the custody issue, provided that a parent (or other person acting as a parent) continues to reside in the state (this is sometimes referred to as “continuing jurisdiction”). Section 452.450.1(1)(b), RSMo. If neither of these two grounds apply, a state may also exercise jurisdiction if it would be in the child’s best interests but only if the child has some “significant connection” with the state and there is substantial evidence in the state bearing upon the child’s care, protection, training, and relationships. Section 452.450.1(2), RSMo. There are other possible grounds under which a state may properly exercise jurisdiction to make a child custody determination under the UCCJA. Those other grounds are not germane to the issues at bar, however.

The child, in this matter, resided in Missouri apparently from June 2001, through at least mid-August, 2008. Thus, under Section 452.450.1(1)(a), RSMo, Missouri became the child’s home state under the UCCJA. It appears that while the child was moved to Florida prior to the filing of Father’s motion to modify, there is no argument on appeal whether Missouri was still the child’s home state. Even if it was not, however, the trial court could properly assert continuing jurisdiction under Section 452.450.1(1)(b), RSMo, given that Father still resided in Missouri. Therefore, the trial court had jurisdiction under the UCCJA to decide the child custody issue.

The issue, here, however, is whether Missouri was barred from exercising its jurisdiction due to the PKPA. Mother’s discussion of this issue is extremely brief and fails to give any substantial analysis of the language of the PKPA. However, her argument appears to be that the trial court should have deferred to the Iowa court’s prior exercise of jurisdiction on the issue, given that an appeal was pending at the time she relocated to Florida.

The PKPA sets criteria for determining when one state may modify a custody determination made in another state. 28 U.S.C. Section 1738A(f). It also places limits on when a trial court may properly exercise its jurisdiction to determine custody matters. For example, the PKPA provides that a state is barred from modifying a custody award made in another state while proceedings remain pending in the other state. 28 U.S.C. Section 1738A(g). A similar “pending proceedings” rule is incorporated in the UCCJA. See Section 452.465.1, RSMo. A number of states have held that “pending proceedings” include not only proceedings before trial courts but also appeals from judgments entered by those courts. See, e.g., In re Custody of Rector, 39 Colo.App. 111, 565 P.2d 950 (1977); Noga v. Noga, 111 Ill.App.3d 328, 67 Ill.Dec. 18, 443 N.E.2d 1142 (1982); Custody of a Minor, 392 Mass. 728, 468 N.E.2d 251 (1984); Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D.1978). See also, David C. Minneman, Annotation, Pending Proceeding In Another State As Ground For Declining Jurisdiction Under Section 6(a) Of The Uniform Child Custo dy Jursidiction Act (UCCJA) Or The Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. Section 1748A(g), 20 A.L.R.5th 700 (1994). We are not aware of any Missouri case adopting the proposition that a pending appeal constitutes “pending proceedings” for purposes of either the PKPA or the UCCJA and need not reach that question, here, but note that this appears to be the majority rule in the jurisdictions that have addressed the question.

A premise of Mother’s argument is the fact that the Iowa appeal was still pending when she relocated to Florida with the child. This premise, however, is irrelevant to the question of whether the trial court could properly assert jurisdiction. The PKPA specifically states that a court “shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State....” 28 U.S.C. Section 1738A(g) (italics added). Here, however, the proceeding was commenced after the Iowa appeal had concluded, as Father’s motion to modify was filed on September 17, 2003. The parties make no argument or present anything in the record on appeal that suggests that there were any further proceedings pending following the Iowa appellate court’s affir-mance of the dissolution judgment on August 27, 2003.

Nor does it appear that Iowa retained any basis under the UCCJA to exercise jurisdiction to modify its earlier custody award. Indeed, at the time the proceedings were initiated in this matter, Iowa had not been the child’s “home state” for many months. The Iowa courts could not assert continuing jurisdiction, given that neither the child nor either parent continued to reside in that state. Nor does it appear that the child has any remaining connection with Iowa that would permit jurisdiction under the “significant connection” ground under the UCCJA. Simply put, by the time the present action was filed, Iowa no longer could exercise jurisdiction over the child.

The trial court, therefore, did not err in denying Mother’s motion to dismiss Father’s motion to modify on grounds of lack of subject matter jurisdiction. Point denied.

Was The Trial Court’s Custody Award Against The Weight Of The Evidence ?

In order to modify the original custody award, the trial court was required to find two things. First, it was required to find that there had been a substantial change of circumstances requiring modification of the prior custody decree. Section 452.410, RSMo. Second, it had to conclude that modification of the decree was in the child’s best interests. Id. The parties raise no dispute regarding the first issue. Mother challenges only the determination that modification of custody was in the child’s best interests. She argues in her second point on appeal that the trial court’s finding on this issue was against the weight of the evidence.

We will affirm the trial court’s judgment in a child custody matter unless the judgment is against the weight of the evidence, is not supported by substantial evidence, or the judgment erroneously applies or declares the law. Wright ex rel. McBath v. Wright, 129 S.W.3d 882, 884 (Mo.App.2004). In addressing whether a custody determination is against the weight of the evidence, we proceed under “the presumption that the trial court reviewed all evidence and based its decision on the child’s best interests.” Id. We view the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the judgment. Id. We grant great deference to the trial court’s judgment, given that it is in a better position to address issues of credibility and resolution of conflicting evidence. Id.

At the outset, Mother points us to an inconsistency in the judgment. The judgment, at one location, awards Father sole legal custody. The parenting plan, however, awards the parties joint legal custody of the child. Father argues that we should consider the award made in the parenting plan as reflecting the intent of the court, given that it sets forth mechanisms by which the parties are ordered to share decision-making with regard to the child. We disagree that we can resolve the question on appeal. In situations where there have been differing child support orders between a judgment and a parenting plan, we have held that reversal was necessary to resolve the inconsistency. See Holsman v. Holsman, 49 S.W.3d 795, 797 (Mo.App.2001). Similarly, we hold that a remand of the case is required here, so that the trial court may issue a judgment reflecting its intention with regard to the legal custody issue.

We also note, in passing, that the trial court’s judgment makes minimal findings with regard to what modification of custody would serve the child’s best interests. The Southern District has held that, when the parties fail to agree upon a custodial arrangement, a trial court is required to make findings regarding the public policy outlined in Section 452.375.4, RSMo, and the factors set forth in Section 452.375.2, RSMo. See Marriage of Copeland, 148 S.W.3d 327, 330 (Mo.App.2004). The judgment, here, makes none of those findings, but the trial court may address that omission in the proceedings upon remand and enter whatever custody award it determines is appropriate after consideration of those factors.

Mother’s second point on appeal is sustained. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

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

      . We note that Missouri does not recognize the concept "primary physical custodian” in a joint custody context. Loumiet v. Loumiet, 103 S.W.3d 332, 338 (Mo.App.2003).

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

      . For example, a Missouri court may exercise jurisdiction if the child has been abandoned in the state or action is necessary due to past or threatened abuse or neglect of the child. Section 452.450.1(3), RSMo. Lastly, Missouri may exercise jurisdiction in situations where no state would have jurisdiction under any ground of the UCCJA or where a state with jurisdiction has declined to exercise it on the basis that Missouri would be a more appropriate forum to decide that issue. Section 452.450.1(4), RSMo. In this latter set of cases, however, the assertion of jurisdiction must, nevertheless, be in the child’s best interests. Id.

      . Florida did not become the child's home state, however, as six months had not yet passed. Section 452.445(4), RSMo.

      . Mother raised no argument in her motion to dismiss that proceedings were pending in Iowa and that dismissal was appropriate under either subsection (g) of the PKPA or Section 452.465.1, RSMo. We cannot discern from the record whether the trial court made any inquiry regarding whether any proceedings were still pending in Iowa, as required by subsections 2 and 3 of Section 452.465, RSMo. In any event, Mother raises no point of error on this question.


author: PER CURIAM.

text:
    In the Interest of W.B., Plaintiff. Juvenile Officer, Respondent, Missouri Children’s Division, Respondent, v. L.B., Appellant, F.B., Plaintiff.
    No. WD 64192.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Stuart W. Conrad, Kansas City, MO, for appellant.
    Debra J. Gronewoller and William R. Jackson, III, for respondent Kierst, Jr.
    Gary Lee Gardner, Asst. Attorney General, for respondent Children’s Division.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   PER CURIAM.

Appellant L.B. (Mother) appeals the trial court’s dismissal of her motion for supervised visitation with her child W.B., who is in the care and custody of the Missouri Department of Social Services, Children’s Division (Division). Mother contends that the trial court erred in granting the Division’s motion to dismiss before she received notice of the motion or was given an opportunity to respond. We reverse the ruling below and remand the matter to allow Mother an opportunity to file a response.

Background

In March 2002, W.B. and his younger sibling (A.B.) were placed in the custody of F.B. (Father) after it was determined that the children were being abused by Mother’s paramour. W.B. and A.B. were five and three years old respectively. In early June, Father, in violation of a court order of protection designed to keep the children away from Mother’s paramour, left the children with Mother. Promptly thereafter, while the children were at Mother’s, W.B.’s sibling, A.B., was beaten and choked by Mother’s paramour. Mother, who arrived home to find her paramour choking A.B., failed to contact police or seek help for the fatally injured child for several hours while she attempted to conceal evidence of the beating. When a police officer responded to the scene as a result of a call by a neighbor, Mother and her paramour persuaded the officer that nothing was wrong, and the officer left. Several hours later, A.B. stopped breathing as a result of his injuries. Although emergency help was then summoned, A.B. died of the injuries inflicted on him.

W.B. was then five years old. The authorities alleged that W.B. was also in the home at the time of the beating of his brother. Mother’s paramour was charged with murder and other felonies. Mother was also charged with felony murder for her role in failing to protect the child.

The Juvenile Officer filed a petition asking the family court to take jurisdiction over W.B. for abuse and neglect and to place him in the custody of the Children’s Division, pursuant to section 211.031. Following a dispositional hearing in October 2002, the family court found that W.B. had been abused and neglected and ordered W.B. committed to the custody of the Division for placement in foster care. The court also ordered that there be no contact between W.B. and his Mother. The court directed the Division to pursue a permanency plan for termination of parental rights of both parents with the hope that W.B. could be adopted. The court relieved the Division of any duty to provide services aimed at family reunification. Mother, who had apparently contested some of the factual allegations, did not appeal that judgment or seek a rehearing.

In February 2003, the Juvenile Officer filed its first petition to terminate the parental rights of Mother and Father. Both parents filed motions seeking visitation. No ruling was issued on these motions. The Juvenile Officer voluntarily dismissed the petition, then later filed a new petition to terminate both parents’ rights as to W.B. The petition alleged, inter alia, that Mother’s parental rights should be terminated because: (1) the child has been abused and neglected as previously determined in the abuse case; (2) severe acts of abuse were committed toward the child’s sibling under circumstances that indicate that Mother knew or should have known that such acts were being committed; (3) the child has been under the jurisdiction of the juvenile court since October 21, 2002 and the conditions that led to the assumption of jurisdiction persist and are not likely to be rectified; and (4) Mother was guilty of a felony violation of Chapter 566 and Section 568.020, when the child’s sibling was a victim. At that time, Mother was still charged but not yet convicted in connection with the child’s death.

Later that month, a jury convicted Mother of second-degree murder and four other felonies in the death of W.B.’s sibling. The second-degree murder conviction was a felony murder conviction based on the death of A.B. occurring while Mother was in the process of the commission of first-degree child endangerment.

Mother’s answer in the termination case, filed three days after Mother’s jury conviction, denied the allegations of the termination petition. Mother then filed a motion seeking supervised visitation with W.B. pursuant to section 211.251.2, which permits a parent to petition the court for a modification of a custody order at any time. That motion, which is at the heart of this appeal, was entitled “Mother’s Request for Visitation with the Juvenile and for Appropriate Family Therapy Services.” The motion mentioned the “no-contact” order from the earlier abuse and neglect case. The motion asked for “a reasonable schedule of supervised visits between Mother and W.B.” The motion also asked for “appropriate services” to Mother but did not specifically seek family reunification.

The Division filed a response to Mother’s motion for visitation, stating that the Division was not “charged with the responsibility of determining whether any particular contact is innocuous or harmful.” The Division also stated that further delays to a permanent placement for the child would be “disruptive and injurious to his well being.”

Appointed counsel initiated discovery with regard to Mother’s motion for visitation by submitting interrogatories and requests for production of documents to the Division, the Juvenile Officer, and counsel for Father.

Two and a half months after her criminal conviction, Mother was sentenced to thirty years in prison. Mother currently is incarcerated while the appeal of her conviction and sentence is pending in this court.

Four days after Mother’s sentencing, the Division sought an enlargement of time to respond to Mother’s discovery requests. Mother then sought to postpone the imminently scheduled hearing. Mother’s motion said she had not received the Division’s responses to her discovery requests. The motion also stated that counsel needed time to investigate whether the “factual predicate” of the motion for visitation was “still reasonable and under what circumstances visitation could be permitted” in light of Mother’s sentence. Other reasons cited were the need for time to digest the Juvenile Officer’s response to the discovery requests and possibly to depose any witnesses. That same day, the judge granted Mother’s postponement and reset the hearing.

Promptly thereafter, the Division filed a “Motion to Dismiss Mother’s Motion for Supervised Visitation.” That motion, in its entirety, stated as follows:

Comes now, Children’s Division, by and through undersigned counsel, and in support of its motion to dismiss mother’s motion for supervised visitation, states and alleges as follows:

1. On February 23, 2004, the Mother filed a motion with this court requesting supervised visits with the above referenced child.
2. On April 15, 2004, the mother was found guilty beyond a reasonable doubt by a jury empanelled by the Jackson County Circuit Court of among other felonies, murder in the second degree of the above referenced child’s sibling.
3. The above referenced child was present in the home when his sibling was murdered by Mother.
4. The mother has been sentenced to a term of 30 years, of which she will serve 80%, or 24 years, before becoming eligible for parole.
5. 24 years is the entirety of the above referenced child’s minority.
6. As a result of the foregoing facts, it is impossible for the child to reunify with or maintain any meaningful parent-child relationship with his mother during his minority.
WHEREFORE, and for the foregoing reasons, Children’s Division requests this Honorable Court DISMISS mother’s motion for supervised visitation.

The next business day, Monday, April 26, a senior judge acting for the Honorable Jon R. Gray, the regular family court judge, granted the Division’s motion to dismiss Mother’s motion for supervised visitation.

Mother filed a motion to set aside or rescind, in which she stated that she never received a copy of the Division’s motion to dismiss and received a copy of the dismissal order only after it was mistakenly sent to the wrong address. The court denied the motion to set aside.

Mother now appeals the family court’s order dismissing her motion for visitation.

Analysis

As a preliminary matter, we take up Mother’s motion to strike. Mother seeks to strike those portions of the respondents’ briefs that contain references to the earlier dispositional proceeding and to Mother’s criminal case. Mother says such references are unnecessary because only a procedural question is at issue here. She argues that the facts submitted by the parties should be limited to the record in the termination case.

In both the motion for visitation and the brief here on appeal, Mother refers to the no-contact order from the earlier abuse and neglect proceeding. The termination petition under which Mother seeks visitation is based, in part, on Mother’s conviction in the criminal case and, in part, on the prior findings in the abuse and neglect case. The Division’s motion to dismiss was based almost entirely upon the outcome of Mother’s criminal case and her sentencing. Hence, while we understand Mother’s desire that we view the issue on appeal as a simple procedural issue, that procedural issue cannot easily be separated from its context.

Mother’s parental rights have not been terminated at this point in the family court proceedings. She retains those rights subject to the court’s jurisdiction. The family court has, however, judicially determined that she abused and neglected her children. Also, the circuit court criminal proceeding judicially determined that her failure to care for her children was tied to the beating death of one of her children. Termination proceedings are pending. The family court in the abuse and neglect proceeding entered a “no contact” order, determining at that point in time that it was in the best interest of child W.B. that there be no contact with Mother or Father, while a permanent home for W.B. was sought. Pursuant to section 211.038, RSMo. (2004, eum.supp.), it now appears that, in view of Mother’s conviction, there can be no reunification with Mother as a matter of law. It is in the context of these factors that we must consider Mother’s due process rights with regard to her motion for visitation. Accordingly, we deny the motion to strike.

Another matter we take up preliminarily is the appealability of the dismissal of Mother’s motion. No party challenges the appealability of the ruling, which Mother asserts is appealable pursuant to section 211.261.1. We agree that the ruling is appealable although the juvenile court’s jurisdiction continues and Mother could file a new motion for visitation. See In the Interest of N.D., 857 S.W.2d 835, 842 (Mo.App.1993).

The standard of review is the same as any other court-tried civil case, under which we reverse only if there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. R.D. v. J.D., 842 S.W.2d 560, 561 (Mo.App.1992); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Questions of law are reviewed de novo. See In the Interest of S.M.H., 160 S.W.3d 355, 358-59 (Mo. banc, 2005). Because the issues presented here involve issues of law, we review to determine whether the trial court correctly applied the law.

In her first point, Mother argues that the trial court erred in granting the Division’s motion to dismiss her motion for visitation before she was given notice of the dismissal motion or a reasonable opportunity to respond. Mother contends that the court’s action deprived her of her constitutional right to due process and was in violation of applicable court rules.

“It is fundamental that restrictions upon parental rights must be in accordance with due process of law. The first requirement of due process is that one be given sufficient notice that his or her rights are to be challenged in the courts.” In the Interest of N.H., 41 S.W.3d 607, 612 (Mo.App.2001). See also Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (when the State seeks to interfere with a parent’s fundamental liberty interest in a child, it must provide “fundamentally fair procedures”).

Mother points out that “[a]n elementary and fundamental requirement of due process ... is notice reasonably calculated ... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). This is, of course, correct. Notice is an integral part of our system of justice, regardless of whether legislation or a specific court rule provides for it. Orion Sec., Inc. v. Bd. of Police Commr’s of Kansas City, 43 S.W.3d 467, 470 (Mo.App.2001). In Orion, this court found reversible error where the trial court granted a “Motion for Judgment” on the same day it was filed, without providing any notice to the opposing party. Id. We explained that “reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be ... the essence of fairness and justice ... basic in simple fundamental justice.” Id.

In this case, the Division’s motion to dismiss was filed on a Friday. The court ruled on the motion the following Monday, before the motion had been served upon Mother and less than one full business day after it was filed. Mother had not completed her discovery as to the original motion and was still evaluating and developing her approach.

The Division’s motion to dismiss presented to the court new factual data in that it recited the recent development that Mother had been sentenced to thirty years in prison. It also asserted the conclusion that it was accordingly impossible to consider reunification of Mother and Child. The Division’s motion assumed, but did not specify, that because reunification is not possible, visitation also is not in the child’s best interest and is out of the question. The Division, however, did not address the issue of visitation or comment on the child’s best interest in that regard.

The court has the discretion, under the applicable rules and statutes, to act on such motions without conducting a formal hearing. See Santosky v. Kramer, 455 U.S. at 745, 102 S.Ct. 1388; see also 211.251.2 (“court may deny [a petition for modification of a custody order] without hearing or may, in its discretion, conduct a hearing”); 16th Judicial Circuit Local Rule 33.5(1) (“the granting or refusal of [a party’s request for a hearing] shall be a matter for the discretion of the Court”); and Supreme Court Rule 119.09(c) (“court may deny [a petition for modification of the juvenile court’s judgment] without hearing or may, in its discretion, conduct a hearing”) However, it is elementary in the law of procedural due process that the absence of the right to demand an evidentiary hearing does not negate the right to make an informal response. See generally 16C C.J.S. Constitutional Law § 968 (1985). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement”).

Mother points out that the court’s actions violated Local Rule 33.5(1) of the 16th Judicial Circuit Local Rules. Under that rule, Mother says, she should have been given ten days to respond and should have been allowed to request a hearing (even though the grant of a formal hearing would be discretionary). Because Mother received no notice that the motion had been filed until after the court had ruled upon it, she was denied the opportunity to respond or to request a hearing. There is no evidence in the record that there were exigencies justifying the denial to Mother of an opportunity to respond.

The Juvenile Officer justifies the dismissal, in part, by arguing that Mother erroneously brought the motion in the termination case instead of the abuse and neglect case. He contends that Mother’s pretrial motion was outside the scope of the pleadings in the termination action and states that nothing in the termination statute (section 211.447) requires the court to address pretrial requests for visitation. According to the Juvenile Officer, Mother should have raised the motion for visitation in the abuse and neglect case because the two cases had not been consolidated. He notes that Mother still can file a motion to modify the no-contact order under that case number. He also points out that Mother has already had an opportunity to be heard in that case.

The two cases deal with the same child and the same parent, and both cases are in the family court. The abuse and neglect case, though still pending, was not the case in which there were active proceedings at the time Mother filed her motion. We fail to see why Mother could not file her motion for visitation in either the abuse case or the termination case. In each case the court had power to exercise jurisdiction over the child and to grant or deny visitation.

The Juvenile Officer also argues that the Division’s “motion to dismiss” could and should properly have been seen as merely further “suggestions in opposition,” and not as a new motion. Thus, the Juvenile Officer argues, the court did not err in denying Mother’s motion after reviewing those suggestions even without allowing her notice of the suggestions or an opportunity to respond.

The trial court apparently did not regard the Division’s motion as merely further “suggestions in opposition.” In any event, the Division’s motion to dismiss, short as it was, raised new factual information (the newly imposed thirty-year sentence). It appears that the thrust of the Division’s motion was that this new information warranted the summary dismissal of Mother’s motion for visitation. We are not aware, however, of any facts concerning Mother’s sentence that would necessarily preclude any visitation. As we have noted, these facts did appear to settle any issue of reunification. However, reunification and visitation are not the same things. The Division and the Juvenile Officer have presented no legal authority for the proposition that the family court had no jurisdiction or legal authority to allow W.B. supervised visitation with his mother. Thus, we cannot say as a matter of law that visitation was legally out of the question.

A system governed by law must distinguish between a procedural right and the assumed substantive merit of a party’s position. In this case, it is easy to presume that no one could make a case for any visitation between mother and child. However, we cannot say as a matter of law no one could make such a case. Did Mother plan to present credible evidence that W.B.’s visiting Mother in prison would be in W.B.’s best interests or at least would not be adverse to those interests? We do not know because the normal process was short-circuited.

The best interest of the child is the court’s utmost concern in parental rights cases. See In the Interest of S.M.H., 160 S.W.3d at 361-62; In the Interest of N.D., 857 S.W.2d at 838; see also § 211.011 (“child welfare policy of this state is what is in the best interests of the child”). We find no legal authority for the proposition that we can say as a matter of law that, even when reunification is out of the question, one or- more supervised visits between a mother and her child could never be in the best interests of the child.

This appeal is only about whether, while the termination action remains pending, the court should have, in accordance with its own rules and with general due process standards, allowed Mother notice of the Division’s motion to dismiss and given her an opportunity to respond. The court, without considering what Mother might have to say in response to the information about her sentence, determined that it would be adverse to the child’s best interest to visit Mother in prison. Mother was denied the opportunity to respond to the Division’s motion.

Conclusion

For the foregoing reasons, we reverse the judgment in this case and remand to the family court to allow Mother an opportunity to respond to the Division’s motion to dismiss her motion for supervised visitation.

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

      . This court may take judicial notice of the record on appeal in Mother’s criminal case. See Perkel v. Stringfellow, 19 S.W.3d 141, 149 n. 9 (Mo.App.2000) (appellate court may take judicial notice of its own records when justice so requires).

      . Local Rule 33.5(1) provides in relevant part:
      .... Within ten (10) days following service and filing of [any motion, except motions for new trial], any opposing party may serve and file suggestions in opposition with citation of authorities and affidavits to be considered in opposition to the motion. On the filing of suggestions in opposition by all parties entitled to filing, or on expiration of the time for filing, whichever occurs first, the matter shall be presented to the judge for consideration.... The Court may extend or shorten the time for filing suggestions on application of either party. Any party may request or the Court on its own motion may direct that a hearing or oral argument be conducted on a motion ..., but the granting or refusal of the same shall be a matter for the discretion of the Court.
      (Emphasis added.)

      . Such a motion is permitted "at any time” by section 211.251.2. Pretrial motions regarding visitation can be addressed in a termination case. See, e.g., In the Interest of N.D., 857 S.W.2d at 842.

      . The Division first raised this issue in its response to Mother’s motion to set aside or rescind the dismissal order, stating that the motion "was improperly raised in the TR proceeding, and was fully addressed by this Court in the JV matter.”


text:
    Stacey Ann PETERS Individually and as Next Friend for Haleigh Nicole Peters and Haleigh Nicole Peters, Respondent, v. Jason Scott PETERS, David Lee Peters and Betty Louann Peters, Appellants.
    No. WD 64107.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Craig D. Ritchie, St. Joseph, MO, for appellants.
    Thomas R. Summers, St. Joseph, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and HARDWICK, JJ. .
   ORDER

PER CURIAM.

This case involves the appeal from a judgment granting Stacey Peters (Mother) sole physical custody of her two daughters and joint legal custody with Jason Peters (Father). At trial, Father had argued that in the event he was not awarded physical custody of the children, it should go to his parents, David and Betty Peters (Grandparents). Both Father and Grandparents appeal the court’s decision. The judgment is affirmed. Rule 84.16(b).


text:
    John Raymond JENNINGS, Sr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 63995.
    Missouri Court of Appeals, Western District.
    May 17, 2005.

      Margaret M. Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Following his conviction by guilty plea to tampering with a witness, Section 575.270, receipt of stolen property, Section 570.080, endangering the welfare of a child, Section 568.045, and domestic assault in the third degree, Section 565.074, John Jennings filed a Rule 24.035 motion for post-conviction relief. Jennings alleged that his guilty plea was not made knowingly or voluntarily in light of the circumstances. The court denied the motion. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Paul JAITLEY, Appellant.
    No. WD 63628.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    James F. Crews, Tipton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., and SPINDEN and HOLLIGER, JJ.
   Order

PER CURIAM.

Paul Jaitley appeals the judgment of the Circuit Court of Pettis County of his conviction, as a persistent offender, of the class D felony of driving while intoxicated (DWI), §§ 577.010 and 577.023.3, following a trial before the court. He was sentenced to three years in the Missouri Department of Corrections.

In his sole point on appeal, the appellant claims that the trial court erred in convicting him of the class D felony of DWI and sentencing him as a persistent offender, because the amended information charging him with that offense was defective, depriving the court of jurisdiction to proceed, in that the “punishment statute was not set forth in the body of the information.”

We affirm pursuant to Rule 30.25(b).


text:
    Travis Alan McFALL, Respondent, v. DIRECTOR, DEPARTMENT OF REVENUE, Appellant.
    No. 26189.
    Missouri Court of Appeals, Southern District, Division Two.
    May 18, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for appellant.
    No Brief Filed for Respondent.
    Before BATES, C.J., SHRUM, and BARNEY, JJ.
   PER CURIAM.

The Director of Revenue (“Director”) appeals from a judgment setting aside the administrative suspension of the driver’s license of Respondent Travis A. McFall (“Driver”) after a trial de novo in the circuit court. Director contends the trial court erred in reinstating Driver’s driving privileges because Director made a prima facia case for suspension which Driver failed to rebut. We reverse and remand the case with directions to enter a judgment sustaining the Director’s suspension of Driver’s driving privileges.

The parties submitted the case on Director’s records to the court at a bench trial. Driver presented no evidence at trial. The record reveals that law enforcement officials were notified of a one-vehicle accident involving a pedestrian in front of the Kelso Country Club Bar on Messmer Street in Kelso, Missouri, which occurred at approximately 1:20 a.m. on May 4, 2003. Corporal Mark Winder (“Winder”) of the Missouri State Highway Patrol was notified of the event at 1:45 a.m. and responded to the scene at 1:57 a.m. Winder was informed by local officers that as the bar closed, the patrons had emptied into the street and several fights had broken out. At about 1:20 a.m., one of the bar patrons, Justin Kluesner (“Kluesner”), was arguing with Jody Kelsey (“Kelsey”). During the argument, Kelsey pushed Kluesner, who then fell back and was struck by the right front corner panel of a gray Chrysler minivan which was passing by the scene. The minivan slowed briefly and then drove away.

Several patrons at the bar informed authorities that the minivan was owned and driven by Driver. At approximately 2:20 a.m., Winder went to Driver’s residence in Scott City, Missouri. The minivan was not parked at the residence. As Winder made contact with Driver, Winder detected a strong odor of intoxicants on his breath and his eyes were glassy, bloodshot and staring. Driver denied being at the Kelso Country Club Bar that night and related that his minivan was at the home of his boss, William LeGrand (“LeGrand”).

As a result of his discussion with Driver, Winder went to the home of LeGrand, whereupon Winder found the minivan. Upon inspection, the minivan had damage to the right front corner panel. When asked how long the minivan had been at his home, LeGrand responded that it had been there “all day.” LeGrand also appeared to Winder to be intoxicated as well as nervous and evasive. After further questioning, LeGrand admitted to Winder that Driver had driven the minivan to Le-Grand’s residence at approximately 1:30 a.m. that morning and “had asked him to park the vehicle in his garage ... to hide it.” LeGrand said he did not question Driver.

At 2:40 a.m., Winder returned to Driver’s residence. It was then that Driver admitted to having driven his minivan to LeGrand’s residence; however, he stated that he did not remember driving the vehicle in front of the Kelso Country Club Bar earlier in the evening. It was at this point that Winder arrested Driver for leaving the scene of an accident. Driver was also informed of his Miranda rights, which he waived, and he was then transported to the Scott County Jail for processing. While en route to the jail and after further questioning, Driver admitted that he was driving during the incident in question. He related that as the fights broke out, he was trying to leave the area. He felt a “bump” on the side of his minivan, but he was not aware that he had hit someone. When asked why he attempted to hide his vehicle and why he initially lied about his involvement in the accident, Driver stated he was “scared.”

At the Scott County Jail, Winder administered three field sobriety tests to Driver; he performed poorly on the tests. At that point, Driver was advised that he was under arrest for driving while intoxicated pursuant to section 577.010. At 3:20 a.m., Driver agreed to take a breath test. The result of the breath test showed his blood alcohol level to be .139 percent by weight. Driver’s driving privileges were subsequently suspended by Director.

After a bench trial in which Driver presented no evidence, the trial court entered a judgment reinstating Driver’s driver’s license and striking the administrative suspension from Driver’s driving record. In its judgment, the trial court set out that Driver “was not arrested upon probable cause to believe that [Driver] was driving a motor vehicle with an alcohol concentration of .08 or more by weight.” The trial court explained that “because the arresting officer had not asked [Driver] if he had had anything to drink in the hour and a half preceding his arrest, the officer could have no possible way of believing that [Driver] was driving with a blood alcohol concentration in excess of .08 over one and a half hours earlier.”

In her appeal, Director maintains the trial court erred in reinstating Driver’s driving privileges because of the trial court’s misapplication of the law and because the trial court’s judgment was not supported by substantial evidence. Director maintains that

the time between when [Driver] last drove and his arrest for DWI is not determinative of probable cause where the arresting officer has evidence that a driver identified by witnesses as [Driver] hit a pedestrian and left the scene in order to hide his vehicle, that vehicle had damage consistent with the witness reports of the crash and how it occurred, and [Driver] was found at home exhibiting indicia of intoxication, and [Driver] never claims, either to the officer or at trial, to have been drinking after driving.

We review the trial court’s judgment after a trial de novo pursuant to the familiar standards established by Rule 84.13(d). See also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). “ ‘This Court defers to the trial court’s determination of credibility.’ ” Swanberg v. Dir. of Revenue, 122 S.W.3d 87, 90 (Mo.App.2003) (quoting Hinnah, 77 S.W.3d at 620). However, “[i]f the evidence is uncontro-verted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.” Hinnah, 77 S.W.3d at 620. Deference to the trial court’s findings and judgment is not required when the case is virtually one of admitting the facts or when the evidence is not in conflict. Myers v. Dir. of Revenue, 9 S.W.3d 25, 28 (Mo.App.1999).

To make a prima facie case for license suspension pursuant to section 302.505, “Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person was arrested upon probable cause. Second, the Director must show that the person had a blood alcohol concentration of .080 percent [by weight] at the time of the arrest.” Lawson v. Dir. of Revenue, 145 S.W.3d 443, 445 (Mo.App.2004) (internal citation omitted).

“Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer.” Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). “It is not necessary for an officer to actually observe a person driving to have probable cause to arrest the person for driving while intoxicated.” Green v. Dir. of Revenue, 148 S.W.3d 892, 895 (Mo.App.2004). “An officer has a right to rely upon information communicated via police dispatch ... and information reported by citizen witnesses.” Id. (internal citations omitted); Spry v. Dir. of Revenue, 144 S.W.3d 362, 369 n. 5 (Mo.App.2004) (holding that “[i]t is well-established that a police officer has a right to rely upon this type of information from citizen witnesses as one part of the factual matrix supporting a probable cause determination”). Also, “[a]n arresting officer may establish probable cause that a person was driving from the person’s admissions alone.” Oates v. Dir. of Revenue, 67 S.W.3d 664, 666 (Mo.App.2002). “These showings must be made by a preponderance of the evidence.” Misener v. Dir. of Revenue, 13 S.W.3d 666, 668 (Mo.App.2000) (overruled in part by Verdoom v. Dir. of Revenue, 119 S.W.3d 543 (Mo.2003)). However, the “level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt.” Brown v. Dir. of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002) (internal quotation omitted). “When Director makes a prima facie case, the burden then shifts to Driver.” Misener, 13 S.W.3d at 668. However, the driver’s burden is one of production — not persuasion. The director retains the burden of proof throughout the proceeding. Verdoorn, 119 S.W.3d at 546.

The disposition of this case is governed by Howard v. McNeill, 716 S.W.2d 912 (Mo.App.1986). In McNeill, Officer Cordia received a report of an automobile collision which had occurred at 12:55 a.m. and he arrived at the scene some twenty-five minutes later. Id. at 913. Present at the scene was one of two drivers involved in the collision. Id. The other driver, McNeill, had been permitted to depart the scene in a friend’s vehicle, to seek medical attention at a local hospital; however, “[a] radio call to the hospital revealed that [McNeill] had not arrived.” Id. at 914.

Less than an hour later, Officer Cordia found McNeill riding as a passenger in his friend’s vehicle. McNeill “appeared very intoxicated” to Officer Cordia and he was placed under arrest for driving while intoxicated. Id. He refused to submit to a test to determine his blood alcohol content. McNeill, 716 S.W.2d at 914. At the refusal hearing, McNeill “admitted that he was intoxicated at the time of his arrest, but explained the condition was brought about by his consumption of a half pint of whiskey supplied to him by [his friend] after the accident.” Id. This claim was corroborated by his friend. Id. Witnesses at the scene also testified that they detected no sign McNeill had been drinking when they were with him at the scene of the accident. Id. However, “[n]o one had voiced to [Officer] Cordia any fact or opinion concerning [McNeill’s] sobriety or lack thereof at the time of the accident....” Id. The only facts available to Officer Cordia when the arrest was made were that McNeill had failed to go to the hospital and that at the time he was arrested he was undisputedly inebriated. Id.

In reversing the trial court’s judgment, which had set aside Director’s revocation of McNeill’s driving privileges, the Eastern District of this Court initially noted that McNeill and his friend failed to “offer [to Officer Cordia] the potentially exculpatory fact of [McNeill’s] heavy drinking after the collision,” and then set out that:

At the time of the arrest in this case, it was clear that [McNeill] was intoxicated, and Officer Cordia was possessed of reliable information that, approximately one hour before he encountered [McNeill] he had been operating a motor vehicle and was involved in a collision. Furthermore, although [McNeill] had been permitted to seek medical attention, he did not go to the hospital, possibly in an effort to avoid being seen by neutral observers. Such facts provided Officer Cordia with ‘reasonable grounds’ to believe that [McNeill] had been intoxicated at the time of the collision and authorized the arrest. [McNeill’s] refusal warranted the Director’s order of revocation.

McNeill, 716 S.W.2d at 915.

In the instant matter, the record shows that prior to Driver’s arrest for driving while intoxicated (a) Driver, as in McNeill, immediately left the crash scene; (b) Driver first hid the minivan involved in the accident and then fled to his home; (c) as in McNeill, within an hour of the collision Winder detected Driver had a strong odor of intoxicants on his breath and his eyes were glassy, bloodshot and staring, which are recognized indicia of intoxication; and, (d) Driver, as in McNeill, did not inform Winder that he had been drinking alcoholic beverages subsequent to his involvement in the crash.

Additionally, unobjected to evidence revealed that prior to arresting Driver for driving while intoxicated, Winder had received information from witnesses at the Kelso Country Club Bar which placed the gray Chrysler minivan “owned and driven by [Driver]” at the scene of the accident, where it was reported that he “slowed briefly and then left the scene” after having struck a pedestrian. Furthermore, subsequent to his arrest for leaving the scene of the accident and after waiving his Miranda rights, Driver admitted to Winder that he had been driving during the incident in question. Lastly, Driver performed poorly on the three field sobriety tests administered to him.

Here, the gap in time between the accident and the arrest did not adversely affect the probable cause determination because “Director is not required to prove the time an accident occurred” in situations such as these. Misener, 13 S.W.3d at 668. Nor is it “necessary that the arresting officer possess all of the information concerning the offense and the arrestee’s participation in it, in order to form a belief amounting to probable cause.” McNeill, 716 S.W.2d at 915. As previously related, to “form a belief amounting to probable cause, the arresting officer does not have to see the suspect driving.” Saladino v. Dir. of Revenue, 88 S.W.3d 64, 70 (Mo.App.2002). While an arresting officer may not rely upon “mere suspicion” in making an arrest, Cox v. Dir. of Revenue, 37 S.W.3d 304, 307 (Mo.App.2000), an “officer may rely upon circumstantial evidence.” Saladino, 88 S.W.3d at 70.

Furthermore, even supposing the applicability of section 577.039 in this matter and its time limitation requirement of one and one-half hours preliminary to a war-rantless arrest for a driver’s violation of section 577.010 or 577.012, the finding of the trial court is in error. This is because Driver left the scene of the accident, “in which case such arrest without warrant may be made more than one and one-half hours after such violation occurred.” § 577.039. In either event, the Supreme Court of Missouri “has recently reaffirmed that the exclusionary rule does not apply to civil license revocation proceedings.” Garriott v. Dir. of Revenue, 130 S.W.3d 613, 616 (Mo.App.2004); see also Riche v. Dir. of Revenue, 987 S.W.2d 331, 335 (Mo. banc 1999). “According to this principle, evidence obtained in an illegal manner, e.g., as a result of an illegal traffic stop, would not be inadmissible in a civil proceeding such as an administrative license suspension.” Lunsford v. Dir. of Revenue, 969 S.W.2d 833, 835 (Mo.App.1998). Lastly, we note that Driver’s breath test result exceeded the legal limit of alcohol indulgence.

Here, on the record before us, Director met the burden of proving a prima facie case. See Verdoorn, 119 S.W.3d at 545. Driver was then entitled to rebut Director’s case. Id. at 545. It was not rebutted by Driver, who presented no evidence. See Misener, 13 S.W.3d at 668. Contrary to the trial court’s holding, sufficient evidence exists to conclude the arresting officer had probable cause to arrest Driver for driving while intoxicated. See id.; McNeill, 716 S.W.2d at 915.

The judgment of the trial court is reversed and remanded and the trial court is instructed to enter a judgment reinstating Director’s suspension of Driver’s driving privileges.

        . " 'Copies of documents from the department of revenue are admissible as evidence so long as the copies are properly certified by the appropriate custodian or the Director.’ "
        Hobbs v. Dir. of Revenue, 51 S.W.3d 874, 876 (Mo.App.2001) (quoting Mills v. Dir. of Revenue, 964 S.W.2d 873, 875 (Mo.App.1998)); § 302.312.
      Unless otherwise set out, all statutory references are to RSMo 2000, and all Rule references are to Missouri Court Rules (2005).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . After an adverse decision from Director, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Hlavacek v. Dir. of Revenue, 129 S.W.3d 374, 377 (Mo.App.2003).

      . While McNeill is a “refusal” case under section 577.041, the requirement for a "reasonable grounds” determination to believe that the "person was driving while in an intoxicated ... condition” are the same as in a section 302.505.1 case, where there must exist "probable cause to believe” that such person was "driving while intoxicated,” as a pre-requisite to suspension or revocation of an offender's driving privileges. § 577.041.2(a); § 302.505.1; see Swanberg, 122 S.W.3d at 90 (quoting Hinnah, 77 S.W.3d at 619-20) (holding that " '[Reasonable grounds’ is virtually synonymous with probable cause”).

      . See Rain v. Dir. of Revenue, 46 S.W.3d 584, 588-89 (Mo.App.2001) (finding that driver's glassy and bloodshot eyes, unsteadiness on his feet, slurred speech, and difficulty concentrating, were sufficient indicia of intoxication to provide reasonable grounds for the officer to believe that the driver was driving while intoxicated).

      . After Driver's arrest for driving while intoxicated, Winder noted in his "Alcohol Influence Report” ("AIR”), that Driver acknowledged not having consumed any alcoholic beverages since the accident.

      . Driver did not file a brief in this appeal.

      . We are aware of the recent holding of a panel of the Eastern District of this Court in Pontius v. Dir. of Revenue, 153 S.W.3d 1 (Mo.App.2004), a refusal case. In Pontius, the driver was also involved in an automobile collision and ultimately left the scene. Id. at 2. When the police arrived, the " [witnesses provided the police with a description of [Pontius].” Id. One hour later, police arrived at Pontius’s home. Id. He appeared to match the description given them by the witnesses at the scene of the accident. Id. They also noticed Pontius exhibited indicia of intoxication, including the fact that he "had a strong smell of alcohol on his breath, his balance was uncertain, and his eyes were watery, bloodshot, and glassy.” Pontius, 153 S.W.3d at 2. He was arrested for leaving the scene of an accident and for suspicion of driving while intoxicated. Id. He refused to submit to field sobriety tests and a breath test. Id. Witnesses at the scene identified Pontius as the operator of the car that hit them. Id. Director revoked Pontius’ driving privileges pursuant to section 577.041. Pontius petitioned the trial court for a trial de novo. Id. Ultimately, during "the hearing, the trial court held the witness statements were hearsay and could not be considered by the court. Hence, the trial court reinstated [Pontius’s] driving privileges.” Pontius, 153 S.W.3d at 2. The Court did not address the Eastern District’s McNeill decision in its opinion.
      On appeal, the Eastern District of this Court set out that it "need not decide whether the civilian statements should have been admissible in this case because even if they were admitted, they would not establish reasonable grounds to believe [Pontius] was driving while in an intoxicated condition." Id. at 3. In holding that the police did not have reasonable grounds to believe Pontius was in an intoxicated condition when he was driving at the time of the accident, the court determined that the "first indicia [Pontius] was intoxicated occurred at his home, almost one hour after the collision.” Id. “There is no evidence on the record indicating [Pontius'] condition at the time of the collision was anything but normal.” Id. Accordingly, the court held that since Director failed to present a prima facie case, Pontius was not required to present rebuttal evidence and affirmed the judgment of the trial court. Id. at 4.
      Unlike Pontius, in the instant matter, subsequent to his arrest for leaving the scene but before his arrest for driving while intoxicated, Driver admitted to Winder that he had been driving his vehicle at the time of the incident. Furthermore, after having been arrested for leaving the scene, Driver was administered three field sobriety tests, performed poorly on each test, and agreed to take a breáth test which revealed an alcohol concentration of .1.3, all within the span of two hours from the time of Driver’s involvement in the accident. 'Our standard of review does not permit us to disregard uncontroverted evidence that supports Director’s contention that all elements were proved.’ ” Swanberg, 122 S.W.3d at 91 (quoting Hopkins-Barken v. Dir. of Revenue, 55 S.W.3d 882, 885 (Mo.App.2001)). “The trial court must assess the facts 'by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.’ ” Brown, 85 S.W.3d at 4 (quoting Cox, 37 S.W.3d at 307). For the reasons previously related, we determine that Director made a prime facie case for license suspension under section 302.505, which was not rebutted by Driver. Misener, 13 S.W.3d at 668-9; McNeill, 716 S.W.2d at 915.