author: PAUL M. SPINDEN, Judge.

text:
    In re SOUTHWESTERN BELL TELEPHONE COMPANY’S PROPOSED REVISION TO GENERAL EXCHANGE TARIFF, P.S.C. MO-No. 35.
    Nos. WD 57510, WD 57561.
    Missouri Court of Appeals, Western District.
    May 30, 2000.

      Paul Lane, Leo Bub, Anthony Conroy, Katherine Swaller, St. Louis, Dana K. Joyce, Nathan Williams, William Haas, Michael Dandino, Jefferson City, for Appellant.
    Craig Johnson, Jefferson City, Wm. Ross England III, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Judge.

Southwestern Bell Telephone Company and the Public Service Commission appeal the circuit court’s judgment to order the commission to conduct a hearing to consider whether a large number of telephone companies should be permitted to intervene in Southwestern Bell’s request for a tariff change. The companies wanted to oppose the change, but the commission refused to permit them to intervene. We dismiss the appeal as moot.

After Southwestern Bell asked the commission, on December 22, 1997, to modify its tariff, a large number of telephone companies sought to intervene in the case to oppose Southwestern Bell’s request to provide additional services at no charge to Southwestern Bell’s customers subscribing to certain plans. The would-be interve-nors, which divided themselves into two groups — the small telephone company group and the mid-Missouri group— protested that Southwestern Bell did not plan to extend the offer to their customers although Southwestern Bell served as the companies’ primary toll carrier. The groups averred that, under the commission’s primary toll carrier plan, Southwestern Bell was obligated to make available to the groups’ customers the same inter-exchange services and at the same rate as it made to Southwestern Bell’s own customers. They contended that allowing Southwestern Bell to give the proposed discount to Southwestern Bell’s customers exclusively would be discriminatory and violated § 392.200.5, RSMo Supp.1997.

Without a hearing, the commission denied the motions to intervene and, on February 4, 1998, approved Southwestern Bell’s tariff to be effective two days later. The commission decided, contrary to the groups’ contentions, that Southwestern Bell’s proposed tariff change was not discriminatory and that the commission did not intend for the primary toll carrier plan to keep Southwestern Bell from creating new services exclusively for its customers. The two groups filed separate petitions for writ of review with the circuit court. The circuit court consolidated the cases.

The circuit court concluded that the commission had erred in not holding a hearing to consider the two groups’ applications to intervene. It remanded the case to the commission with instructions that it reopen the case and consider the intervenors’ contentions of discriminatory and otherwise unlawful treatment. The commission and Southwestern Bell appealed to this court.

We dismiss because the primary toll carrier plan which is at the center of this dispute ended on October 20, 1999, mooting the two groups’ claim. Southwestern Bell has no obligation now to provide toll services in the two groups’ exchanges. This effectively ends the dispute between the two groups and Southwestern Bell. Even if we were to agree with the smaller telephone company groups’ contentions, our ordering the commission to allow them to intervene would provide nothing for their customers. The two groups are not claiming damages. They merely seek the right to intervene to convince the commission that Southwestern Bell was obligated to provide the additional services to their customers, too. Even if the commission now agreed with them, the customers would not obtain the service because the primary toll carrier plan on which the smaller companies based their claim has expired. We would be merely issuing an advisory opinion declaring who was right in a past dispute. Our role is not to adjudicate debating issues. It is to resolve live disputes. Our issuing an opinion in this case would have no practical effect on an existing controversy. State of Missouri, ex rel. Mathewson v. Board of Election Commissioners of St. Louis County, 841 S.W.2d 633, 635 (Mo. banc 1992).

“ ‘[A] case is moot if a judgment rendered has no -practical effect upon an existent controversy.’ ” State of Missouri, ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998) (citation omitted). ‘When an event occurs that makes a court’s decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed.” State of Missouri, ex rel. County of Jackson v. Missouri Public Service Commission, 985 S.W.2d 400, 403 (Mo.App.1999). This case is moot.

The smaller company groups note that a court still can consider a moot issue if it is a recurring, unsettled issue of public interest and importance that will escape review without the court’s intervention. “This exception is very narrow, however, and if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, the ‘public interest’ exception does not apply.” Id. This issue in this case is likely to present itself again in a future, live controversy. Indeed, the mid-Missouri group complained that other carriers were “attempting to evade [the statutes called into question in this case] in the same manner[.]” Even if we were to declare that Southwestern Bell was wrongfully evading statutory obligations in this case, the other carriers noted by mid-Missouri group undoubtedly would endeavor to distinguish our advisory opinion, and the controversy would be back before us again. The “public interest exception” does not apply to this case.

We, therefore, dismiss Southwestern Bell’s and the commission’s appeal on the ground that the controversy presented is moot.

JOSEPH M. ELLIS, Presiding Judge, and THOMAS H. NEWTON, Judge, concur.

      . Southwestern Bell proposed to provide a "1+ SAVER 10% Optional Calling Plan free of charge for customers subscribing to The WORKS ®, BizSaversm, or the BASICS sm vertical services packages.” Southwestern Bell told the commission that its proposed tariff revision would save 2.4 million Southwestern Bell customers about 10 percent on certain long distance toll services.

      . This group includes Alltel Missouri Inc., BPS Telephone Co., Cass County Telephone Co., Citizens Telephone Co. of Higginsville, Mo., Inc., Craw-Kan Telephone Coop., Inc., Ellington Telephone Co., Farber Telephone Co., Goodman Telephone Co., Inc., Granby Telephone Co., Grand River Mutual Telephone Corp., Green Hills Telephone Corp., Holway Telephone Co., Iamo Telephone Co., Kingdom Telephone Co., KLM Telephone Co., Lathrop Telephone Co., Le-Ru Telephone Co., Mark Twain Rural Telephone Co., McDonald County Telephone Co., Miller Telephone Co., New Florence Telephone Co., New London Telephone Co., Orchard Farm Telephone Co., Oregon Farmers Mutual Telephone Co., Ozark Telephone Co., Rock Port Telephone Co., Seneca Telephone Co., Steelville Telephone Exchange, Inc., and Stoutland Telephone Co.

      . This group includes Alma Telephone Co., Chariton Valley Telephone Corp., Choctaw Telephone Co., Mid-Missouri Telephone Co., Modern Telecommunications Co., MoKan Dial, Inc., Northeast Missouri Rural Telephone Co., and Peace Valley Telephone Co.

      . Southwestern Bell estimated to the commission that 131,000 customers served by the companies in the two groups would be affected.


source: Caselaw Access Project

author: LAURA DENVIR STITH, Presiding Judge.

license: Public Domain

text:
    MID-MISSOURI TELEPHONE, COMPANY, et al., Respondents, v. ALMA TELEPHONE COMPANY, et al., Appellants.
    No. WD 57367.
    Missouri Court of Appeals, Western District.
    May 30, 2000.

      Bruce Brown Waugh, Kansas City, for appellants.
    Mark Thomas Kempton, Sedalia, for respondents.
    Before Presiding Judge LAURA DENVIR STITH, Judge ROBERT G. ULRICH and Judge JAMES M. SMART, Jr.
   LAURA DENVIR STITH, Presiding Judge.

This appeal involves the question whether Plaintiffs-Respondents — Mid-Missouri Telephone Company (“Mid-Mo Telephone”), its wholly-owned subsidiary Mid-Missouri Cellular, Inc. (“Mid-Mo Cellular”), and the Jones Family, as the sole shareholders in Mid-Mo Telephone — were obligated by certain agreements they allegedly signed to offer Defendants-Appellants, who are three independent telephone companies and their three wholly-owned cellular telephone subsidiaries, a “right of first refusal” to buy the 25% partnership interest held by Mid-Mo Cellular in a limited partnership created by the four cellular telephone subsidiaries. The three independent telephone companies and their subsidiaries alleged that an offer of this right of first refusal was triggered by the fact that the Joneses planned to sell their 100% interest in Mid-Mo Telephone (the parent) to a third party, CEA Capital Partners USA, LP (“CEA”).

Because we find that nothing in either of the contracts relied on by Defendants-Appellants required the Joneses to give those companies a right of first refusal before the Joneses sold their shares in Mid-Mo Telephone to CEA, we affirm the trial court’s grant of summary judgment to Plaintiffs-Respondents in this declaratory judgment action.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Plaintiff-Respondent Mid-Mo Telephone was an independent, privately held, Missouri corporation which provided local telephone service to certain counties in Missouri. At that time, the Federal Communications Commission (“FCC”) was preparing to grant cellular telephone rights along Interstate 70 (1-70) east of Kansas City. Mid-Mo Telephone decided to bid on these rights, as did three other independent, privately owned telephone companies who are now Defendants-Appellants herein — Alma Telephone Company, Inc. (“Alma”), Citizens Telephone Company of Higginsville (“Citizens”) and Chariton Valley Telephone Company (“Chariton”) (sometimes collectively referred to herein as “the independent telephone companies”). These four companies were among the eligible candidates vying to acquire these cellular rights. Also among the eligible candidates were four’ larger telephone companies that operated in Missouri but which were subsidiaries of publicly traded corporations (the “publicly traded companies”).

It was FCC practice that, unless all eligible candidates for obtaining cellular rights agreed to share those rights, the FCC would conduct a lottery to determine which eligible candidate would receive these cellular rights. Mid-Missouri invited the other three independent companies (Alma, Citizens and Chariton), as well as the four publicly traded companies, to agree that should any one of eight of them be selected in the lottery, they would all share and own the rights together. It prepared a document it entitled “Settlement Agreement” which it provided to the other seven companies, and which contained the terms on which it proposed the eight companies bid for the cellular rights. The Settlement Agreement provided that the signatories to it agreed that, if one of them won the lottery, they would thereafter enter into a Limited Partnership Agreement for the purpose of providing cellular service within the allotted area. In addition, Section J of the Settlement Agreement contained a right of refusal clause which stated in relevant part that:

No Partner may sell, transfer, assign or exchange any part of its Partnership Interest to a non-affiliate of the Partner without first giving all of the other Partners the opportunity to acquire that interest for the value at which and under terms which any such non-affiliate has offered the selling Partner pursuant to a bona-fide offer in writing to pay for such interest....
For purposes of this Section J, an assignment shall be deemed to have occurred if in a single transaction or in a series of transactions any interest in a Partner (whether stock, partnership, interest or otherwise) is transferred, diluted, reduced or otherwise affected. An assignment shall not be deemed to have occurred (i) due to the transfer of any or all of the outstanding capital stock of any corporate entity holding an ownership interest in a Partner, or (ii) due to the mortgage of all or any part of a Partnership Interest to a bank or trust company licensed pursuant to any state or federal banking laws.

On June 7, 1989, Mid-Mo Telephone, Alma, Chariton, and Citizens executed the Settlement Agreement, but the four publicly traded companies decided not to join. None of the four independent companies which signed the Settlement Agreement were, at that point, owned by a corporate holding company, nor did any of them own a cellular subsidiary.

One of the four signatories to the Settlement Agreement, Chariton, did win the lottery. None of the four went on to sign a Limited Partnership Agreement, as contemplated by the Settlement Agreement, however. Rather, for business reasons, the four telephone companies decided that it would be better for each of them to create wholly owned cellular subsidiaries. Accordingly, they created Chariton Valley RSA # 1 Corp (“Chariton Cellular”), Mid-Missouri Cellular, Inc. (“Mid-Mo Cellular”), Alma Cellular Telephone Company, Inc. (“Alma Cellular”), and Citizens Service Center, Inc. (“Citizens Cellular”). Chariton obtained permission from the FCC to transfer its rights to its wholly owned subsidiary and, in September 1989, the four cellular subsidiaries executed a Limited Partnership Agreement with each other. Chariton Cellular, Alma Cellular and Citizens Cellular each became 25% limited partners, and Mid-Mo Cellular became a 24% limited partner and a 1% general partner.

The Limited Partnership Agreement contained a right of first refusal clause similar to that in the Settlement Agreement, with one major exception. It did not include a provision like the provision in the Settlement Agreement which had stated that “An assignment shall not be deemed to have occurred (i) due to the transfer of any or all of the outstanding capital stock of any corporate entity holding an ownership interest in a Partner.” It did contain the other provisions set out in the Settlement Agreement regarding transfer of partnership interests. In addition, the Limited Partnership Agreement contained a “merger clause” which provided that:

This Agreement constitutes the entire Limited Partnership Agreement between the Partners and their affiliates and (a) shall supercede all previous negotiations, commitments, representations and writings, and (b) to the extent inconsistent with any provision contained in any other documents, shall su-percede such provisions.

In 1995, Citizens decided to create a holding company, Citizens Communication Corporation, to hold the stock of both Citizens Telephone and Citizens Cellular. It advised the other telephone companies of its plan and said that out of an abundance of caution it wanted to get their consent, and the other companies, including the Joneses’ company, Mid-Mo Telephone, consented to the creation of the holding company.

In the latter part of 1998, Mr. David Jones informed the other telephone and cellular companies that his family planned to sell its stock in Mid-Mo Telephone, which was the parent of Mid-Mo Cellular, to CEA. On November 28, 1998, the other companies stated in a letter to Mr. Jones that they believed that his family’s proposed sale of its stock in the parent would trigger their right of first refusal to buy Mid-Mo Cellular’s interest in the limited partnership which owned the cellular rights at issue here.

On November 30, 1998, the Jones family filed a Petition for Declaratory Judgment in the Circuit Court of Lafayette County, Missouri, to decide this issue. Mid-Mo Cellular and Mid-Mo Telephone were also made Plaintiffs, and the three other telephone companies and their three cellular subsidiaries were made defendants. On April 2, 1999, the Joneses, Mid-Mo Telephone and Mid-Mo Cellular filed a Motion for Summary Judgment. The trial court granted the motion for summary judgment, holding that the Settlement Agreement was superceded by the Limited Partnership Agreement and the latter did not require the Joneses or Mid-Mo Telephone to offer the other companies a right of first refusal. This appeal followed.

II. STANDARD OF REVIEW

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). We will uphold the trial court’s grant of summary judgment where: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.

III. LEGAL ANALYSIS

The independent telephone companies and other cellular subsidiaries argue that the determinative fact on this appeal is that it was the intent of the four independent telephone companies, as shown by the Settlement Agreement, to give each other a right of first refusal so as to protect themselves from the possibility that any one of their interests in the cellular telephone rights at issue could fall into the hands of an outsider. Assuming that this was what motivated the parties to enter into the Settlement Agreement, however, if that is not what that agreement or the Limited Partnership Agreement said, then we are powerless to rewrite their contract for them so that it includes provisions that they wish they had put in it at the time of signing, but did not in fact include. And, here, we find that neither agreement gives the independent companies a right of first refusal in this situation.

The problem at the heart of the independent companies’ arguments is that, while the parent companies - Alma Telephone, Chariton Telephone, Citizens and Mid-Mo Telephone -signed the Settlement Agreement, and while that agreement explicitly states that these four companies will enter into a Limited Partnership Agreement with a right of first refusal clause if one of them wins the lottery for the cellular rights, the four parent companies never actually entered into the Limited Partnership Agreement. Instead, as noted earlier, once Chariton won the cellular rights, each of the four telephone companies created a subsidiary and it was their subsidiaries that signed the Limited Partnership Agreement, not the parents. Neither did the parent companies sign the Limited Partnership Agreement as guarantors or otherwise agree to be bound by it. Thus, while the parent corporations owned 100% of each of their respective subsidiaries, none of them owned a direct interest in the limited partnership ultimately created by their subsidiaries.

This distinction in ownership is dispositive, for “[a]s a general rule, two separate corporations are to be regarded as distinct legal entities, even if the stock of one is oumed partly or wholly by the other.” Mitchell v. K.C. Stadium Concessions, Inc., 865 S.W.2d 779, 784 (Mo.App. W.D.1993). Thus, the “[ojwnership of capital stock in one corporation by another does not itself create identity of corporate interest as between the two.” Central Cooling & Supply Co. v. Director of Revenue, State of Missouri, 648 S.W.2d 546, 548 (Mo.1982) (finding that transactions between a parent corporation and its subsidiary do incur sales tax). Indeed, our Supreme Court has advised that the doctrine of corporate entity is valid and substantive in nature, and should “be ignored with caution, and only when the circumstances clearly justify it.” Id.

For this reason, “[n]ormally a parent corporation is not responsible for the acts of its subsidiary corporation.” Grease Monkey Intern., Inc. v. Godat, 916 S.W.2d 257, 262 (Mo.App. E.D.1995). See also Central Cooling & Supply Co., 648 S.W.2d at 548; Mitchell, 865 S.W.2d at 784. Of course, where circumstances exist that would allow the wronged party to pierce the corporate veil, a parent corporation could then incur liability, thus losing the parent/subsidiary distinction. Id. Such circumstances are present “only where there is such dominion and control that the controlled corporation had no separate mind, will or existence of its own and is but an alter ego for its principal.” Grease Monkey Intern., Inc., 916 S.W.2d at 262. Similarly, absent such control, there can be no principle-agent relationship between corporate entities. Hefner v. Dausmann, 996 S.W.2d 660, 664 (Mo.App. S.D.1999).

Here, there were no allegations that this level of control was exerted by the parent over their subsidiaries. The subsidiaries neither acted as agents on behalf of their parents, nor destroyed the distinction between these corporations. We are thus left with what is, in effect, a request to hold the parent companies hable based on a Limited Partnership Agreement that they did not sign, and for which they cannot be held responsible under agency theory or under principles governing piercing of the corporate veil. This we cannot do.

The independent companies argue that, if we find that the parent telephone companies are not bound by the Limited Partnership Agreement, then we must find that the trial court erred in holding that the Limited Partnership Agreement super-ceded the Settlement Agreement; for it could not have done so since there was no identity of the parties. Thus, the merger clause contained in the Limited Partnership Agreement, stating that it superceded all prior agreements of the parties, had no effect on the rights and obligations of the parent companies, since they did not sign the Limited Partnership Agreement and thus could not be bound by its merger clause.

While we agree with the independent companies that the Limited Partnership Agreement could not supercede the Settlement Agreement where, as here, the parties to each agreement were different, we do not believe this aids the independent companies’ position. In the Settlement Agreement the four independent companies agreed that they would create a partnership to own the cellular rights, would sign a Limited Partnership Agreement governing that partnership, and would not transfer their partnership interest in the yet-to-be-created limited partnership without the consent of the other partners, unless one of two exceptions applied. However, the telephone companies that signed the Settlement Agreement never became partners with each other, and never otherwise formed a partnership. Instead, as noted, once the cellular rights were obtained, they decided to create subsidiaries and it was those subsidiaries that formed a partnership. Since the telephone companies never formed a partnership, a condition precedent to the right of first refusal to purchase each others’ interests in that contemplated partnership never occurred, for if there was no partnership of the parents, then there was no partnership interest to which the right of first refusal could apply.

That their subsidiaries did in fact set up such a limited partnership, pursuant to terms similar to those contemplated by their parents, is of no legal consequence here. By choosing to create subsidiaries as separate legal entities, with all the benefits and burdens of such a business decision, and allowing only the subsidiaries to enter into the partnership, the parent companies changed the assumptions on which the Settlement Agreement was written. While, had they thought further about it, they might have better effectuated then-intent by having the parents also sign the Limited Partnership Agreement or otherwise agree to be bound by its terms, they did not do so. They cannot now attempt to ignore the distinction between parent and subsidiary in an effort to either acquire a right of first refusal that as to them never came into being or assume a similar right by virtue of their ownership of their respective subsidiaries.

Finally, we note that, even were there a basis for holding that the Settlement Agreement bound the parent companies to offer each other a right of first refusal as to their interests in the partnership (despite the fact that the partnership then contemplated was never formed), we would be required to hold that an exception to that right of first refusal applied here. As quoted earlier, the right of first refusal in the Settlement Agreement was subject to two exceptions, the first of which Mr. Jones argues is applicable to his sale of his family’s interest in Mid-Mo Telephone. That exception states in relevant part:

For purposes of this Section J, an assignment shall be deemed to have occurred if in a single transaction or in a series of transactions any interest in a Partner (whether stock, partnership, interest or otherwise) is transferred, diluted, reduced or otherwise affected. An assignment shall not be deemed to have occurred (i) due to the transfer of any or all of the outstanding capital stock of any corporate entity holding an ownership interest in a Partner

(emphasis added).

The independent companies claim that this exception was intended only to apply to publicly traded companies, and not to privately held companies such as Mid-Missouri Telephone Company. However, nothing in the Settlement Agreement limits this clause in this way. While the independent companies may have included the clause in the Agreement because of their desire to attract the four publicly held companies they wanted to join their agreement, the provision as written was not so limited. By its terms, it applies to any company with outstanding capital stock - that is, stock held by someone other than the company. Here, the Jones family holds the outstanding capital stock of Mid-Missouri Telephone Company, and seeks to sell that stock. Mid-Missouri Telephone Company is a corporate entity. Mid-Missouri Telephone Company owns 100 percent of the stock of Mid-Missouri Cellular, Inc. Mid-Missouri Cellular, Inc. is a partner in the Limited Partnership which the subsidiaries ultimately created. Thus, Mr. Jones seeks to transfer the outstanding capital stock of a corporate entity — -Mid-Missouri Telephone Company - and that corporate entity holds an ownership interest in a partner — Mid-Missouri Cellular, Inc. The exception clearly applies. The Defendant-Appellant independent telephone and cellular companies have no right of first refusal as to the sale.

For the reasons stated above, the judgment is affirmed.

Judge ROBERT G. ULRICH and Judge JAMES M. SMART, Jr., concur.

      . In this regard, it provided:
      Any Limited Partner may transfer its Partnership Interest to an Affiliate thereof at any time without any consent or restriction from the General Partner or any other Limited Partner. Otherwise, there shall be no sale, transfer, assignment or exchange of the whole or any portion of any Limited Partner's Interest without the prior written consent of the General Partner, which consent shall not be unreasonably withheld. In addition, before any Limited Partner sells, transfers, assigns or exchanges any part of its Partnership Interest to a non-Affiliate of such Limited Partner, it shall offer, by giving written notice to the General Partner, that interest to all of the other Partners for the value at which and the terms under which such non-Affiliate has offered pursuant to a bona-fide offer in writing to pay for such interest....
      For purposes of this Article XII, an assignment shall be deemed to have occurred if in a single transaction or in a series of transactions any interest in a Limited Partner (whether stock, partnership, interest or otherwise) is transferred, diluted, reduced or otherwise affected. An assignment shall not be deemed to have occurred due to the mortgage of all or any part of a Partnership Interest to a bank or trust company licensed pursuant to any state or federal banking laws.


author: VICTOR C. HOWARD, Judge.

text:
    Angela L. BRANDOW, Respondent, v. Brian L. BRANDOW, Appellant.
    No. WD 57156.
    Missouri Court of Appeals, Western District.
    May 30, 2000.

      Clifford A. Falzone, Moberly, for respondent.
    Jean E. Goldstein, Columbia, for appellant.
    Before: EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
   VICTOR C. HOWARD, Judge.

Brian L. Brandow appeals from the trial court’s judgment and decree of dissolution of marriage. Appellant raises two points on appeal. First, he contends that the trial court erred in awarding Respondent retroactive child support from the date of separation, because § 452.340 RSMo provides that retroactive child support may be ordered to the date of filing the petition, not the date of separation. Second, he contends that the trial court erred in awarding Respondent physical custody of the children because its ruling was against the weight of the evidence and it misapplied the law as set out in § 452.375 in that it did not 1) adopt either party’s parenting plan; 2) list the factors it used to determine custody after first considering joint legal and physical custody; and 3) enter a parenting plan as required by § 452.310.7.

We affirm in part, and reverse in part and remand.

Facts

Brian L. Brandow and Angela L. Bran-dow were married on September 2, 1989. They have two children: Andrews, born April 24, 1990, and Joseph, born November 20, 1991. The parties separated on or about April 12, 1998. Respondent filed her petition for dissolution of marriage on September 25, 1998. She sought, among other things, legal and physical custody of the children and child support retroactive to the date of separation.

Following trial, the trial court awarded the parties joint legal custody of the children, with primary physical custody to Respondent, subject to Appellant’s right of reasonable visitation and temporary custody as provided in the order and judgment. The court ordered the following: 1) Appellant would have visitation with the children the first and third weekends of each month; 2) the parent who does not have visitation with or custody of the children on their birthdays will have four hours of visitation with the children on their birthdays; 3) Appellant will have custody of the children for five weeks in the summer, half of spring break vacation, alternate school holidays except Christmas, and one week at Christmas; and 4) the children will have the right to contact either parent by telephone at reasonable times and with reasonable frequency. The trial court further ordered Appellant to pay child support in the amount of $425 per month, retroactive to April 12, 1998. This appeal followed.

Point I

The first point on appeal is that the trial court erred in awarding Respondent retroactive child support from the date of separation, because § 452.340 provides that retroactive child support may be ordered to the date of filing the petition, not the date of separation.

The trial court has considerable discretion in making child support awards retroactive, and its judgment will not be reversed absent an abuse of its discretion. Homfeld v. Homfeld, 954 S.W.2d 617, 623 (Mo.App. W.D.1997).

Section 452.340.1 provides, in relevant part, that “[i]n a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the support of the child, including an award retroactive to the date of filing the petition.... ”

The parties separated on April 12, 1998. Respondent filed her dissolution petition on September 25, 1998. The trial court awarded Respondent child support retroactive to April 12, 1998, the date of separation. The plain language of § 452.340.1 provides that the court may grant retroactive child support to the date of filing the petition, not to the date of separation. Therefore, the trial court erred in awarding child support retroactive to April 12, 1998. Point I is granted.

Point II

The second point on appeal is that the trial court erred in awarding Respondent physical custody of the children because its ruling was against the weight of the evidence and it misapplied the law as set out in § 452.375 in that it did not 1) adopt either party’s parenting plan; 2) list the factors it used to determine custody after first considering joint legal and physical custody; and 3) enter a parenting plan as required by § 452.310.7.

“We will sustain the court’s judgment on custody unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Graves v. Graves, 967 S.W.2d 632, 640 (Mo.App. W.D.1998). The trial court’s determination in child custody proceedings is given greater deference than in any other type of case. Burkhart v. Burkhart, 876 S.W.2d 675, 678 (Mo.App. W.D.1994). We will not disturb the trial court’s judgment unless we are firmly convinced that the welfare of the child requires some other disposition, id., or unless it is clearly against the logic of the circumstances or is arbitrary or unreasonable. Graves, 967 S.W.2d at 640. We review the evidence in the light most favorable to the trial court’s decision. Id.

Section 452.375.9 provides as follows: Any judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310. Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but in all cases, the custody plan approved and ordered by the court shall be in the court’s discretion and shall be in the best interest of the child.

Section 452.310.7(1) sets forth the arrangements that must be covered in every parenting plan detailing custody, visitation, and residential time. Section 452.310.7(2) sets forth the specific factors which must be included in detailing how the decision-making responsibilities will be shared.

Appellant contends that the trial court’s custody order does not comply with § 452.375.9 because it does not state which party is to have which holiday, and it does not include school holidays, Mother’s Day or Father’s Day, the places for transfer, the time for holidays, a plan for sharing transportation duties, a plan for procedures for notifying the other party of needed changes in the schedule as required by § 452.310.7(1), or anything about how the joint legal custody is to work, as required by § 452.310.7(2).

When construing a statute, we ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and consider the words used in their plain and ordinary meaning. Butler v. Mitchelk-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). According to the plain language of § 452.375.9, the trial court’s judgment was required to include “a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310.” The trial court’s judgment does not include all the terms set forth in § 452.310.7. Therefore, the trial court’s judgment is not in compliance with §§ 452.375.9 and 452.310.7.

Appellant next argues that the trial court did not comply with § 452.375.6. Section 452.375.6 provides as follows:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.

According to the plain language of the statute, when the parties have not agreed to a custodial arrangement, the court is required to include in its judgment a written finding based on the public policy in § 452.375.4 and the factors listed in § 452.375.2(1) to (8), detailing the specific relevant factors that made the chosen arrangement in the best interest of the child. Furthermore, the statute requires that if a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment detailing the specific relevant factors resulting in the rejection of the arrangement.

In the present case, both parties submitted separate parenting plans. Appellant’s plan provided for joint legal and physical custody of the children. Respondent’s plan provided for joint legal custody, with primary physical custody to her. The court awarded the parties joint legal custody of the children, with primary physical custody to Respondent. However, the court established a different visitation and temporary custody schedule than the one Respondent proposed in her parenting plan. Under the circumstances of this case, the trial court was required to make a written finding detailing the specific relevant factors that made its custody arrangement in the best interest of the children. It was also required to make a written finding detailing the specific relevant factors resulting in the rejection of the parties’ proposed custody arrangements. Because the trial court made neither of these findings, its judgment is not in compliance with § 452.375.6.

Appellant further argues that the trial court did not comply with §§ 452.375.4 and 452.375.5. Apparently this is Appellant’s argument that the trial court’s judgment is against the weight of the evidence. “On appeal, it is presumed that the trial court reviewed all the evidence and awarded custody in light of the best interest of the child.” Burkhart, 876 S.W.2d at 678. An appellate court should exercise the power to set aside a custody decree or judgment on the basis that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong. In re Marriage of Campbell, 868 S.W.2d 148, 153 (Mo.App. S.D.1993).

Section 452.375.4 provides as follows:

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

Section 452.375.5 provides that prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider joint physical and joint legal custody. Appellant argues that the factors for determining custody set forth in § 452.375.2 support an award of joint custody in this case, and that Respondent has clearly shown that she is not willing to allow the children “frequent, continuing and meaningful contact” with him.

The trial court is required to consider joint custody as the first option, even if it is opposed by one parent. Burk-hart, 876 S.W.2d at 679. However, § 452.875.6 does not require the court to make a written finding explaining its decision not to award joint custody. We find that the factors set forth in § 452.375.2 support the trial court’s custody decision. The trial court’s custody arrangement allows for frequent, continuing and meaningful contact with Appellant. While the children will spend less time with Appellant than with Respondent, the testimony at trial supports a finding that the children would benefit from the stability provided by having a primary residence where they are able to stay for the majority of the time, especially during the school year. In addition, Respondent indicated at trial that she was willing to allow Appellant to have frequent and meaningful contact with the children. Because we do not have a firm belief that the trial court’s custody order is wrong, we affirm it. Point II is denied in part and granted in part.

The judgment of the trial court is affirmed with respect to the custody determination, and reversed and remanded with respect to the retroactive child support order, with instructions to 1) enter an order for child support retroactive to September 25, 1998; 2) make written findings in compliance with §§ 452.375.6 and 452.375.9; and 3) make a complete parenting plan as required by § 452.310.7. The trial court’s judgment is affirmed in all other respects.

EDWIN H. SMITH, P.J., and HOLLIGER, J., concur.

      . All statutory references are to RSMo Cum. Supp.1999.

      . The Eastern District of this court has addressed the same issue. Hollins v. Hollins, 13 S.W.3d 669 (Mo.App. E.D.2000). There the trial court addressed most but not all of the statutory elements of a parenting plan. Id. at 673. The judgment was remanded to correct those deficiencies. Id. at 674.

      . The Supreme Court has adopted a model parenting plan for use in these cases if desired. The plan may be viewed on the Missouri Courts Information Center, Juvenile and Adult Court Programs, Supreme Court Rules and Administrative Directives.

      . Section 452.375.2 provides that in making a custody determination, the court shall consider all relevant factors, including:
      (1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
      (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
      (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
      (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

        (5) The child's adjustment to the child's home, school, and community;
      (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;
      (7) The intention of either parent to relocate the principal residence of the child; and
      (8) The wishes of a child as to the child’s custodian.


author: PER CURIAM.

text:
    Kathy K. KELLER, Appellant, v. John B. KELLER, II, Respondent.
    No. WD 56970.
    Missouri Court of Appeals, Western District.
    May 31, 2000.

      Robert E. Harris, Warrensburg, for appellant.
    Douglas Van Camp, Jefferson City, for respondent.
    Before BRECKENRIDGE, C.J., LAURA DENVIR STITH and RIEDERER, JJ.

      . Judge Riederer resigned from this court pri- or to the issuance of the opinion.

   PER CURIAM.

Kathy K. Keller appeals the judgment of the circuit court dissolving her marriage to the respondent, John B. Keller, II, with respect to the court’s awards to her of maintenance and child support; the division of marital property; and its order concerning future awards of attorney’s fees incurred in any proceeding to enforce or clarify the court’s judgment.

The appellant raises six points on appeal. In Point I, she claims that the trial court erred in awarding non-modifiable maintenance of a limited duration because such an award was not supported by the evidence. In Point II, she claims that the trial court erred in including the monthly maintenance payment to the appellant in its Form 14 calculation of the presumed child support amount, on which it based its child support award, because the maintenance awarded by the court was of a limited duration and would terminate prior to the termination of the award of child support. In Point III, she claims that the trial court erred in not including in its Form 14 calculation an amount for the work-related child care costs of the appellant because in doing so it erroneously declared and applied the law as found in the applicable provisions of the “Directions, Comments for Use and Examples for Completion of Form H ” (Form 14 directions and comments). In Point IV, she claims that the trial court erred in not including in its Form 14 calculation an amount for uninsured extraordinary medical expenses of the parties’ minor son, John, because in doing so it erroneously declared and applied the law as found in the applicable provisions of the Form 14 directions and comments. In Point V, she claims the trial court erred in dividing the marital property because in doing so it erroneously declared and applied law concerning the “source of funds” rule. In Point VI, the appellant claims that the trial court erred in ordering that future awards of attorney’s fees, under § 452.355, RSMo. Cum.Supp.1999, incurred in any proceeding to enforce or clarify the court’s judgment were to be contingent on whether the party seeking such an award had prevailed in the proceeding and had given the notice prescribed by the court because in doing so it erroneously declared and applied the law as found in § 452.355.

We affirm, in part, and reverse and remand, in part.

Factual History

The parties were married on August 5, 1988, in Florennes, Belgium. There were two children born of the marriage: John Bidwell Keller, III, born on September 29, 1992; and Kathianne Kay Keller, born on January 2,1995. The parties separated on or about October 31, 1997. At the time of their separation, they were residing in Jefferson City, Missouri. On November 7, 1997, the appellant filed a petition for dissolution of marriage in the Circuit Court of Cole County, Missouri. On December 9, 1997, the respondent filed his answer and cross-petition.

The case was heard commencing on January 14, 1999. On February 5, 1999, the trial court entered its judgment, inter alia, dissolving the parties’ marriage and dividing their property. In the court’s decree, the parties were awarded joint legal custody of the children, with primary physical custody to the appellant and specific visitation with the children to the respondent. The court ordered the respondent to pay monthly child support to the appellant in the amount of $900, as well as non-modifiable maintenance to the appellant for a period of eighteen months in the amount of $500.

This appeal followed.

Standard of Review

A provision in a divorce decree will be affirmed unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; or (3) it erroneously declared or applied the law. Hoffmann v. Hoffmann, 676 S.W.2d 817, 822 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996). “The party challenging a divorce decree bears the burden of demonstrating error.” Woolridge, 915 S.W.2d at 375.

The trial court has broad discretion in ordering maintenance and child support. Allen v. Allen, 961 S.W.2d 891, 893 (Mo.App.1998). In reviewing such awards for an abuse of discretion, we are required to view the evidence in a light favorable to the decree, “ ‘disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion.’ ” Id. (quoting Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996)).

“The trial court has considerable discretion in dividing marital property.” Holt v. Holt, 976 S.W.2d 25, 27 (Mo.App.1998). We will not reverse the .court’s decision unless we find that the division is “so heavily weighted in favor of one party as to amount to an abuse of discretion.” Id.

No Substantial Evidence To Support Maintenance Of Limited Duration

In Point I, the appellant claims that the trial court erred in awarding non-modifiable maintenance of a limited duration because such an award was not supported by the evidence. In its decree, the trial court ordered that the respondent pay non-modifiable maintenance to the appellant in the amount of $500 per month for eighteen months with the first payment due on February 1, 1999. On appeal, neither party challenges the appellant’s entitlement to maintenance or the amount of the award for each month. What is being challenged by the appellant is the fact that the award is for a limited time only and whether the limitation on the award was supported by the evidence.

Section 452.335.2, RSMo 1994, governs awards of maintenance and provides, in pertinent part, that such awards

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

From the findings of fact of the trial court, we are able to ascertain that in entering its award of maintenance, it believed that the appellant was capable of being employed immediately and meeting her own needs, provided she received $500 a month in maintenance from the respondent. In •limiting its award of maintenance to eighteen months, the trial court found that “[sjaid non-modifiable maintenance contemplates that [the appellant] currently is employable in the open labor market but may benefit from some short period of additional training to fully meet her employment potential.” From this, it is apparent that the trial court, after considering factor two of § 452.335.2, believed that with eighteen months of “additional training,” the appellant would be able to meet her needs without any support from the respondent. The question is whether there was sufficient evidence to support its belief.

The law is well-settled with respect to the issue of limiting the duration of a maintenance award. Maintenance awards of limited duration cannot be based merely on speculation about the future conditions of the parties. Schroeder v. Schroeder, 924 S.W.2d 22, 27 (Mo.App.1996). “A decision to limit maintenance is justified only where substantial evidence exists of an impending change in [the] financial condition of the parties. Substantial evidence must exist supporting a reasonable expectation that such a change will occur.” Allen, 961 S.W.2d at 896. Maintenance should not be prospectively terminated if there is no substantial evidence supporting a finding that the circumstances of the parties will be “markedly different in the future.” Id.‘Because of the justification required for maintenance awards of limited duration, the judicial preference is for awards of maintenance of unlimited duration.’ ” Test v. Test, 872 S.W.2d 620, 623 (quoting Smith v. Smith, 840 S.W.2d 276, 277 (Mo.App.1992)).

After a careful review of the record, we find no substantial evidence to support a finding by the trial court that the appellant would be totally self-supporting after eighteen months of “additional training.” The record reflects that the appellant had a Master’s degree in speech communication, but had never pursued a career utilizing her education, choosing instead to stay home to raise the children. She testified that if she were able to obtain her doctorate, which would take a minimum of four years if she attended full-time, she could use her education to teach. However, there was nothing in the record to indicate that she had any immediate plans to pursue her doctorate. See Tillock v. Tillock, 877 S.W.2d 161, 163 (Mo.App.1994) (holding that evidence was insufficient to limit award of maintenance in that “[although wife was pursuing a Master’s degree in counseling and was scheduled to graduate in June 1994, the evidence did not establish either that she definitely would graduate on time or that she would be employed immediately upon graduation”). The appellant also testified that her employment prospects would be improved by “computer training,” without providing any details concerning the same. She further testified that, although she had worked at a number of part-time jobs during the marriage, she was unemployed at the time of trial, despite several attempts to obtain employment.

It is evident from the record that the trial court believed that the appellant was capable of being employed immediately and providing, at least in part, for her needs, which is not being challenged on appeal. It is also evident that the trial court believed that the appellant would be able to provide for all her needs within eighteen months, with the benefit of some “additional training.” We assume, from the record, that this is a reference to the “computer training” testified to by the appellant. The record indicates that this testimony was in response to a question by respondent’s trial counsel as to whether she could get a job as a teacher. The fact that she testified that she could possibly get an unspecified job in teaching in the future with some unspecified computer training in no way constitutes the requisite substantial evidence to establish that she had a reasonable expectation within the next eighteen- months after dissolution of obtaining employment sufficient to meet all of her needs independent of any support by the respondent. To so find was speculative at best. See In re the Marriage of Myers, 879 S.W.2d 736, 738 (Mo.App.1994) (holding that “[h]aving a college degree and a teaching certificate does not prevent prospects for employment from being ‘purely speculative’ ”). As such, rather than speculating as to what the future might hold as to the appellant’s ability to meet her own needs independently, the trial court should have simply made its award of unlimited duration and modifiable. This would have had the effect of protecting the appellant from having her support cut off if the circumstances in eighteen months were not as projected by the trial court, while allowing the respondent to seek a modification of the award if the court’s projected circumstances came to pass.

Based on the evidence, we find the trial court abused its discretion in ordering that its award of maintenance be non-modifiable and of a limited duration. As such, we reverse the trial court’s judgment awarding maintenance to the extent it was ordered limited in duration and was made non-modifiable and remand the cause to the court to amend its judgment making its award of maintenance of unlimited duration and modifiable.

Maintenance Payment Properly Included in Child Support Calculation

In Point II, the appellant claims that the trial court erred in including the monthly maintenance payment to the appellant in its Form 14 calculation of the presumed child support amount, on which it based its child support award, because the maintenance awarded by the court was of a limited duration and would terminate prior to the termination of the award of child support. The appellant concedes that if we were to find that the trial court erred, as she claims in Point I, and order the court’s maintenance award be made permanent and modifiable, then her claim in this point would necessarily be rendered moot. We agree and because we so found and so ordered in Point I, we do not address Point II on the merits.

Work-Related Child Care Costs Properly Excluded From Child Support Calculation

In Point III, the appellant claims that the trial court erred in not including in its Form 14 calculation an amount for the work-related child care costs of the appellant because in doing so it erroneously declared and applied the law as found in the applicable provisions of the Form 14 directions and comments. We disagree.

In determining child support, § 452.340.7, RSMo. Cum.Supp.1998, and Rule 88.01 require the trial court to follow the two-step Woolridge procedure. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997); Woolridge, 915 S.W.2d at 379. First, the trial court must determine the presumed child support amount pursuant to a correct Form 14 calculation. Webb v. Fox, 978 S.W.2d 16, 20 (Mo.App.1998); Woolridge, 915 S.W.2d at 379. This first step involves a mandatory mathematical calculation which ensures that the child support guidelines will be considered in every case. Woolridge, 915 S.W:2d at 379. Second, after considering all of the relevant factors, the trial court must decide whether to rebut the presumed child support amount as being unjust or inappropriate. Neal, 941 S.W.2d at 504; Webb, 978 S.W.2d at 20; Woolridge, 915 S.W.2d at 379. “Step two permits the trial court to exercise its broad and sound discretion in the final determination of child support awards.” Woolridge, 915 S.W.2d at 379.

In determining the presumed child support amount, the trial court can either accept the presumed child support amount calculated by a party pursuant to Form 14, or reject the calculations of both parties and do its own Form 14 calculation. Schleisman v. Schleisman, 989 S.W.2d 664, 672-73 (Mo.App.1999) (citing Woolridge, 915 S.W.2d at 381-82). “The trial court must reject any Form 14 if any item is incorrectly included in the calculation, an amount of an item included in the calculation is incorrect, or the mathematical calculation is incorrect.” Samples v. Kouts, 954 S.W.2d 593, 597 (Mo.App.1997). In doing its own Form 14 calculation, “[t]he trial court determines which Form 14 items and their respective amounts are properly included in the calculation based on the Directions for Completion of Form 14 and the evidence presented.” Id.; Woolridge, 915 S.W.2d at 381. In determining whether the trial court correctly calculated the presumed child support amount, we review the calculation to ensure that not only is it done accurately from a mathematical standpoint, but that the various items and their amounts were properly included in the calculation and supported by substantial evidence. Samples, 954 S.W.2d at 597; Woolridge, 915 S.W.2d at 380.

As to the Woolridge procedure, the record here reflects that the trial court rejected the Form 14 calculations of the parties as being incorrect and did its own. In its Form 14, the trial court did not include any work-related child care costs. With respect to work-related child care costs of the parent receiving support, the Form 14 directions and comments provide for entering on Line 6a of Form 14 “the monthly amount of any reasonable work-related child care costs incurred or to be incurred for the children who are the subject of this proceeding by the parent entitled to receive support.” Form 14, Line 6a. However, there is a “caveat” to the inclusion of such costs, which provides, in pertinent part:

The reasonable work-related child care costs of the parent entitled to receive support may be included only if the gross income earned by the parent during the time period in which the parent incurs the child care costs is included in the parent’s monthly gross income on line 1.

Form 14, Line 6a (emphasis added). Thus, under the applicable Form 14 directions and comments, the trial court here was required to include any work-related child care costs of the appellant in its Form 14 calculation of the presumed child support amount, assuming that the trial court included in its calculation, as gross monthly income of the appellant, “earned” or “imputed” income, which necessitated or would have necessitated the incursion of the work-related child care costs to be included.

A review of the trial court’s Form 14 reflects that it did not include, as gross monthly income of the appellant, any “earned” or “imputed” income, rather it included only the $500 monthly maintenance she was to receive from the respondent. As such, under the caveat for completion of Line 6a of Form 14, the trial court was correct in not including any work-related child care costs of the appellant.

The failure of the trial court to impute income to the appellant in its Form 14 is very perplexing in that, as we discussed in Point I, supra, from its findings in its decree it would seem clear that the court’s maintenance award was based, in part, on its belief that at the time of trial the appellant was employable immediately and could provide, in part, for her own needs. For example, with respect to its finding as to the appropriate amount of child support to be awarded, it alluded to the fact that it was based, inter alia, on the “under employed status of petitioner.” (Emphasis added). In this regard, the Form 14 directions and comments provide, in pertinent part: “If a parent is unemployed or determined to be underemployed, ‘gross income’ may be based on imputed income.” Nonetheless, by its Form 14 entry for the gross monthly income of the appellant, it would seem equally clear that the trial court was treating her maintenance from the respondent as her only income for purposes of its Form 14 calculation. This is also born out by the trial court’s finding:

Based on the lack of employment income received in the past and anticipated in the immediate future, no tax benefit would be afforded to petitioner with regard to the state and federal tax exemptions for the minor children for the 1998, 1999 and 2000 tax years whereas respondent would benefit therefrom.

As such, it would appear that the trial court made expressed and implied conflicting findings of facts with respect to the issue of what income the appellant had earned or could earn for purposes of calculating maintenance and child support.

One possible explanation for the trial court’s action in not including any income for the appellant, other than the maintenance payments she was to receive from the respondent, might be found in the “caveat” of the Form 14 directions and comments with respect to imputed income that provides:

If income and, where appropriate, reasonable work-related child care costs are imputed in calculating the presumed child support amount to any unemployed parent entitled to receive support, then the support ordered paid by the parent obligated to pay support shall not exceed the presumed child support amount payable if no income and work-related child care costs are imputed to the parent entitled to receive support.

Form 14, Line 1, Comment H. Under this caveat, if the trial court determined that by imputing income to .the appellant and including work-related child care costs for her, the respondent’s child support obligation would have been increased, then it would have been justified in not including these items in its Form 14. Unfortunately, the record is totally void with respect to this issue such that we cannot draw any informed conclusions as to whether the trial court would have been justified in making such a determination. In any event, neither party attacks the trial court’s Form 14 calculation with respect to its only reflecting $500 as the appellant’s gross monthly income. As such, we need not decide the issue. Hence, because the trial court did not include in its Form 14 as gross monthly income for the appellant any “earned” or “imputed” income, under the applicable Form 14 directions and comments discussed, it was correct in not including any amount for her for work-, related child care costs.

Point denied.

Recurring Medical Expenses Required To Be Included In Child Support Calculations

In Point IV, the appellant claims that the trial court erred in not including in its Form 14 calculation an amount for uninsured extraordinary medical expenses of the parties’ minor son, John, because in doing so it erroneously declared and applied the law as found in the applicable provisions of the Form 14 directions and comments. We agree.

Form 14, Line 6d provides for the inclusion of “uninsured extraordinary medical costs” in determining the presumed child support amount. With respect to these costs, the Form 14 directions and comments provide:

“Extraordinary medical costs” are reasonable and necessary medical and dental expenses, as defined by section 213 IRC, incurred for the children who are the subject of this proceeding, to the extent that the uninsured portion of such expenses, including any deductibles and co-payments, exceeds $100 per year per child. “Extraordinary medical costs” are predictable and recurring, such as expenses for dental treatment, orthodontic treatment, asthma treatment and physical therapy. Medical and dental expenses incurred for single occurrence illnesses or injuries that are not covered or fully paid under any health care insurance policy should be handled by separate order.

Form 14, Line 6d, Comment A. Therefore, applying the Woolridge procedure discussed, supra, if under the evidence, John’s medical expenses were reasonable, necessary, predictable and recurring, then their inclusion in the court’s Form 14 was mandatory.

In our view, the purpose of factoring in uninsured extraordinary medical expenses in child support calculations is to relieve the custodial parent from having to continually pursue the non-custodial parent, under a separate order, for payment of expenses that are so predictable, due to an ongoing condition requiring treatment and care, that they are likely to recur. In such circumstances, it seems only fair to remove that undue burden by building into the child support award the payment of such expenses. On the flip side, if the expenses in question are not predictable and recurring, then the burden of requiring the custodial parent to pursue the payment of the uninsured medical expenses from the non-custodial parent, under a separate order, would be slight and would not justify building in the payment of the same in the monthly child support award.

There is no dispute that the parties’ minor son, John, suffers from autism. As a result of his condition, he requires several types of therapy on a regular basis, including speech, physical, occupational, and sensory integration. While John receives many of these therapies at school, the record reflects that the appellant still incurs, on a regular basis, some monthly expenses for the same. In addition, he suffers from asthma and food allergies for which he is required to receive continuing treatment, resulting in the appellant incurring regular uninsured medical expenses. At trial, the appellant testified that the uninsured medical expenses for the couple’s minor son, John, had averaged $250 per month for the previous sixteen months, and that such expenses had been as high as $10,000 for one year. Based on the record, we find that it was an abuse of discretion for the trial court not to include in its Form 14 calculation some amount for uninsured extraordinary medical expenses for the treatment and care of John’s autism, asthma, and allergies, requiring us to reverse and remand the trial court’s judgment awarding child support to the appellant for further proceedings on this issue.

Contribution to Acquisition Proper Factor For Division Of Property

In Point V, the appellant claims that the trial court erred in dividing the marital property of the parties because in doing so it erroneously declared and applied law concerning the “source of funds” rule. Specifically, she claims that the trial court, in dividing the parties’ marital property, relied on the “source of funds” rule and that this was an improper application of the law in that the rule can only be used to characterize property as either marital or separate property, but cannot be used as a factor in dividing property once classified.

The “source of funds” rule is used to classify property in a dissolution action as either non-marital or marital property. Woolridge, 915 S.W.2d at 376. “Under the ‘source of funds’ rule applied in Missouri, property is considered to be acquired as it is paid for, and incremental property values are allocated proportionately to either marital or non-marital estates according to the source of funds used to purchase or improve the property.” Alexander v. Alexander, 956 S.W.2d 957, 960 (Mo.App.1997). From the record, it is clear that the trial court invoked the rule to classify the property of the parties as either non-marital or marital. The record also discloses that some of the property, that was found initially by the trial court to be non-marital property of the respondent, pursuant to the rule, was ultimately classified as marital property in that the court found that the respondent had transmuted it from non-marital to marital property.

“[Transmutation [ ] allows a spouse to transmute a piece of separate property to marital property by express or implied agreement. There is no conflict between the source of funds rule and transmutation; they are merely relevant in different factual situations. A spouse transmutes separate property into marital property by titling it in both parties’ names.”

Williams v. Williams, 965 S.W.2d 451, 454 (Mo.App.1998) (citations omitted). There is no dispute on appeal as to the classification of any property as being marital property as a result of the trial court’s application of the “source of funds” rule and the theory of transmutation. What the appeR lant challenges is the division of this property, after classification, by the trial court using the “source of funds” rule.

Although we would agree with the appellant that the “source of funds” rule is not, by definition, to be invoked in the division of marital property and that as such, it would be incorrect to use or refer to the rule as being used for this purpose, the record does not bear out her contention that the trial court invoked the rule such that its division of the parties’ marital property was in error. While it is clear from the record that the trial court did consider each party’s “contribution” in acquiring the parties’ marital property in its division of the same and in doing so, in effect, traced the source of its acquisition, much as would be done in classifying property under the “source of funds” rule, this is permitted under § 452.330. This section provides, in pertinent part:

1. In a proceeding for dissolution of the marriage or legal separation,...the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.

§ 452.330. “Once property is classified as marital, the factors listed in § 452.330 apply in dividing the property.” Waisblum, 968 S.W.2d at 756. Section 452.330.1(2) expressly requires the trial court to consider the “contribution of each spouse to the acquisition of the marital property.” The transmutation of respondent’s non-marital property into marital property did not preclude the trial court’s consideration of the “contribution” factor in dividing the parties’ marital property. Gremaud v. Gremaud, 860 S.W.2d 354, 357 (Mo.App.1993). Thus, the fact that there may have been some practical overlap in the trial court’s classification of the parties’ property and its division of the same, by tracing the source of the funds used to acquire it, did not invalidate the court’s division of property. Although, it would be error if, in dividing the parties’ property, the trial court gave more weight to the “contribution” factor than was contemplated by § 452.330.1. Waisblum, 968 S.W.2d at 756.

There is no mathematical formula to determine the weight to be given to each of the factors found in § 452.330 in dividing marital property. Id. The appellant points to nothing in the record that persuades us that the trial court did not consider all of these factors or that it unduly relied on one to the exclusion of the others in dividing the parties’ marital property. See Crews v. Crews, 949 S.W.2d 659, 665 (Mo.App.1997) (holding that we can presume that the trial court considered the requisite statutory factors and its division was correct). As such, we find that the trial court did not erroneously apply the “source of funds” rule, as alleged by the appellant, in dividing the parties’ marital property.

Point denied.

Order For Future Attorney’s Fees Void

In Point VI, the appellant claims that the trial court erred in ordering that any future awards of attorney’s fees, under § 452.355, incurred in any proceeding to enforce or clarify the court’s judgment, were to be contingent on whether the party seeking such an award had prevailed in the proceeding and had given the notice prescribed by the court because in doing so it erroneously declared and applied the law as found in § 452.355. We agree.

In its decree, the trial court ordered:

In the event that either party brings an action for failure to perform any of the obligations imposed by this order on him or her, or for enforcement or clarification of the order, the prevailing party in such action shall have the right to recover his or her attorney’s fees and litigation costs reasonably expended in prosecuting or defending the action. However, no attorney’s fees shall be so recovered by a party filing an action unless that party seeking to recover said attorneys fees and costs shall have mailed to the breaching party written notice of the alleged failure to perform, and said alleged failure was not cured within ten (10) days after the date of mailing said notice by certified mail to the alleged breaching party’s business or residence address.

By this provision, the trial court was not only attempting to limit the relevant factors it would consider in awarding attorneys fees in future proceedings, but was attempting to limit recovery to a prevailing party only. These limitations are contrary to § 452.355, governing such awards. Thus, we find the provision in question to be null and void. Roberts v. Roberts, 800 S.W.2d 91, 93 (Mo.App.1990).

Conclusion

The judgment of the circuit court dissolving the marriage of the parties is affirmed, except with respect to its awards of maintenance and child support, which are reversed and remanded to the court for further proceedings consistent with this opinion.

      . All statutory references are to the Cummula-tive Supplement of the Revised Statutes of Missouri 1999, unless otherwise indicated.

      . The first four findings are as follows:
      1. Petitioner is able-bodied and physically capable of employment and has, in fact, held herself out as employable in the open labor market.
      2. Petitioner has a college degree and a masters degree which should allow her to be employed in the open labor market.
      3. Although petitioner’s testimony is that the needs of John Bidwell Keller, III, are such that she cannot maintain employment based on his autism and/or pervasive developmental disorder, the credible evidence of his teachers and treating doctor (Dr. Curtis Dyer) establish that she can be employed in the open labor market and that daycare provisions can be made for said child and are available in the Warrensburg, Missouri, area.
      4. That although petitioner is employable in the open labor market, some level of non-modifiable maintenance is appropriate to supplement her available income level commensurate with her current education and possibly receive some appropriate training to enhance her employment opportunities.

      . "Q. All right. And are you telling the Court here today that you don’t think you could really get a job until you go to — get a doctorate degree and then could then teach? A. Or computer training.”

      . Section 452.355 provides:
      1. Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney’s name.
      2. In any proceeding in which the failure to pay child support pursuant to a temporary order or final judgment is an issue, if the court finds that the obligor has failed, without good cause, to comply with such order or decree to pay the child support, the court shall order the obligor, if requested and for good cause shown, to pay a reasonable amount for the cost of the suit to the obligee, including reasonable sums for legal services. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
      3. For purposes of this section, an "obligor” is a person owing a duty of support and an "obligee” is a person to whom a duty of support is owed.
      4. For purposes of this section, "good cause”' includes any substantial reason why the obligor is unable to pay the child support as ordered. Good cause does not exist if the obligor purposely maintains his inability to pay.


author: RONALD R. HOLLIGER, Judge.

text:
    John STINE, Appellant, v. Debbie WARFORD, Respondent.
    No. WD 57423.
    Missouri Court of Appeals, Western District.
    May 31, 2000.

      Robert Desselle, Independence, for Appellant.
    Charles Lawhorn and Shawn DeGraff, Shawnee Mission, KS, for Respondent.
   RONALD R. HOLLIGER, Judge.

John Stine appeals the trial court’s grant of Debbie Warford’s motion to dismiss his claim against her for property damage resulting from an auto accident on April 26, 1998. At the time of the accident, Stine owned a 1975 Alpha Romeo being operated by his then daughter-in-law. Stine alleged in his petition that Warford negligently operated her motor vehicle and struck the vehicle he owned causing a total loss.

On March 6, 1996, Stine filed his claim in the Associate Division of the Jackson County Circuit Court. Warford was served in Florida on November 15, 1996, only three days before the summons return date. At a point in time not indicated in the record on appeal, Warford filed her own claim in a Circuit Court Division of Jackson County against Stine’s daughter-in-law seeking damages arising from the accident. Stine was not a party to that action. On August 29, 1997, a default judgment was entered in favor of Warford and against the daughter-in-law in the amount of $32,312.08. Warford was represented by the same counsel in both actions.

Stine’s Associate Circuit claim was set for hearing on April 14, 1999. Just before trial, Warford filed a motion to dismiss “upon res judicata or collateral estoppel,” which was originally overruled by the trial court. The court then heard evidence and took the matter under advisement for briefing by the parties. On June 21, 1999, the court sustained Warford’s motion to dismiss. We are not favored on appeal with the transcript of an oral motion or the text of a written motion stating the ground upon which it was claimed that res judica-ta or collateral estoppel barred Stine’s claim.

The parties seem to agree that the sole basis for the motion was that Stine’s claim was barred by res judicata arising from the circuit court judgment against this daughter-in-law, or, alternatively, that the circuit court judgment barred the claim by collateral estoppel because it was based on a finding that the daughter-in-law was 100 percent at fault in the accident. On appeal Warford claims that the motion to dismiss was also proper because the daughter-in-law was negligent per se. We cannot determine whether this theory was advanced to the trial court but Stine makes no objection to its assertion on appeal.

Stine claims on appeal that the trial court incorrectly found that his claim was barred as a result of the judgment against his daughter-in-law. He contends the court improperly applied the doctrine of res judicata and collateral estoppel. Before considering Stine’s claim, however, we must first consider Warford’s claim that the court’s dismissal ruling was really a judgment on the merits because the court entered its judgment after reviewing the pleadings, evidence and arguments of attorneys and briefs.

The sole basis for Warford’s contention is the language in the court’s judgment, “[A]fter having heard the evidence.” As indicated previously, we have not been favored with a transcript of the proceedings. The record on appeal does not, therefore, indicate what evidence the court heard, whether it heard all of the evidence on the merits, or whether it heard only evidence pertaining to the motion to dismiss. The clear language of the judgment, however, shows that the court is ruling on Warford’s motion to dismiss. It is of no particular significance that the court’s ruling on the motion to dismiss comes before, during or after the trial. We, therefore, will review the court’s action in sustaining that motion.

Preliminarily, Stine contends that both res judicata and collateral estoppel are affirmative defenses that must be pled. Stine argues these defenses were waived because Warford filed no answer setting forth these affirmative defenses. Warford answers first that she was not required to file an answer asserting affirmative defenses based on RSMo. 517.031.2, which permits fifing of affirmative defenses later than the return date of the summons only upon leave of court. Warford also argues that, because she was served with the summons only three (3) days before the return date, she could not be expected to file an answer by that date; further, she asserts that, since the judgment she obtained was not entered until November 1999, her affirmative defense did not even exist at the time her answer would have been due on the return date of November 18, 1996. Finally, she contends that the issues of res judicata and collateral estoppel were tried by consent of the parties.

Rule 41.01(d) states that Rule 41.01 through Rule 101 apply to civil actions pending in the associate circuit court “except where otherwise provided by law.” Warford’s first argument ignores the clear dictate of RSMo. 517.031.2 that “affirmative defenses shall be filed in wilting not later than the return date.” She counters, however, that she had insufficient time between the date of service and return date. Section 517.031.2 provides the court leave to allow fifing at a later date. Rule 55.33 also permits amendment of an answer by leave of court. Even if the facts constituting the affirmative defense do not exist at the time of the return date, Rule 55.33 provides that leave to amend “shall be freely given when justice so requires.” We reject Warford’s argument that she was not subject generally to the rules requiring defenses to be filed in writing. Rule 55.08 specifically fists collateral es-toppel and res judicata as defenses of avoidance that must be pled.

Warford argues that, nevertheless, the defense of res judicata can be asserted by “motion to dismiss.” She argues that, regardless of Rule 55.08, the practice of raising res judicata by a motion to dismiss is longstanding and approved of in Heins Implement Company v. Missouri Hwy. & Transp. Com’n, 859 S.W.2d 681, 685 (Mo. banc 1993). Warford misstates the analysis and holding in Heins. The court did acknowledge the similarities between res judicata, citing King General Contractors v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498-99 (Mo. banc 1991), and the defense of failure to state a claim upon which relief can be granted; the latter defense is explicitly authorized to be raised by motion in Rule 55.27(a). The Heins court also acknowledged the holding in Johnson v. Raban, 702 S.W.2d 134, 135-36 (Mo.App.1985) allowing the assertion of a claim preclusion defense after the time for an answer but well before trial. In Heins, however, the issue was first raised in the defendant’s motion for judgment notwithstanding the verdict. Although here the issue was raised immediately before trial, we agree with the statement in Heins that neither King nor Rdban permit the raising of the defense so late in the trial process.

... (a] defendant should not be able to hold preclusion in reserve as a ‘stealth defense’ long after the time for raising substantive defenses has passed. See Rule 55.27(f). Res judicata, as well as other affirmative defenses, must be pleaded in the answer, Rule 55.08; or raised by amendment to the pleadings, Rule 55.83; or presented by a timely motion filed in compliance with Rule 55.27(f) or otherwise.

859 S.W.2d at 685. It was 20 months between the date of the judgment asserted as a defense and the beginning of trial in this case. Warford could have sought to assert the defenses long before the start of trial. The defenses were not, therefore, timely raised.

We must address one further preliminary question to determine whether Warford may not rely on her affirmative defenses. Stine was responsible for providing a record on appeal adequate for the court to decide the issues presented. Rule 81.12(c). He chose not to provide a transcript of any proceedings. Nothing in the legal file indicates that he made any objection to the untimely assertion of an affirmative defense. There is no transcript from which we can glean any such objection at the time the motion to dismiss was filed, any objection during trial to the motion, or any objection to evidence produced in support of the affirmative defense. Even though Warford failed to timely assert her affirmative defenses, that failure is excused if waived by failure to object or if tried by consent of the parties. Heins, 859 S.W.2d at 685; Rule 55.33(b). It was Stine’s obligation to preserve an objection at trial and present that objection to this court. State v. McKibben, 998 S.W.2d 55, 59 (Mo.App.1999); Chilton v. Gorden, 952 S.W.2d 773, 777 (Mo.App.1997). Because he has presented no record demonstrating his objection, we consider the issue to have been tried by consent of the parties. Heins, 859 S.W.2d at 685. We, therefore, must consider the affirmative defenses of collateral estoppel and res judicata on the merits.

The concepts of res judicata and collateral estoppel are related but possess different characteristics. Res judicata precludes the same parties from relitigat-ing the same claim (“claim preclusion”); collateral estoppel precludes the same parties from relitigating an issue which has been previously adjudicated (“issue preclusion”). Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). We must first consider whether the same claim is asserted and whether the parties are the same. Obviously Stine was not a party to the other action; nevertheless, if he was in privity with his daughter-in-law defendant in that action, res judicata may be applied. Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo.App.1999). War-ford’s only basis for claiming privity is the in-law relationship and that Stine was the owner of the car. She cites no authority for the proposition that these facts establish privity in the context of res judicata. Privity, as a basis for satisfying the “same party” requirement of res judicata, is premised on the proposition that the interests of the party and non-party are so closely intertwined that the non-party can fairly be considered to have had his or her day in court. Burke v. L & J Food and Liquor, Inc., 945 S.W.2d 662, 664 (Mo.App.1997).

By such a test Warford’s defense must fail. Warford claims that, because the driver was Stine’s daughter-in-law, they were in privity for res judicata purposes. In Burke, supra, this court held that, even where parties were married, that fact alone did not satisfy the privity requirement. Id. at 664-65. Nor is the identity of claim test satisfied. The claim here is for property damage. It is not a claim that Stine’s daughter-in-law could have asserted by way of counterclaim as she admittedly had no ownership interest in the vehicle. Even in the case of a spouse’s consortium claim, this court has held that the claim did not satisfy the identity test. Maddox v. Truman Medical Center, Inc., 727 S.W.2d 152, 155 (Mo.App.1987). Even co-owners of a vehicle were not in sufficient privity to bar a separate claim by one for the property damage after another judgment (involving the other co-owner) had resolved the issue of liability for personal injuries. Poetz v. Klamberg, 781 S.W.2d 258, 255 (Mo.App.1989).

Warford also claims that collateral estoppel precludes the relitigation of the issue of her negligence because the circuit court judgment against the daughter-in-law implicitly found that Warford was not negligent. Collateral estoppel does not require the identity of claims and may be asserted by strangers to the original action. Oates, supra. Warford’s claim must fail for several reasons. Collateral estoppel has four elements: (1) the issue decided must be identical; (2) the prior litigation must have resulted in a final decision on the merits; (3) the party to be estopped must have been a party or in privity with a party to the prior adjudication, and (4) that party must have had a full and fair opportunity to litigate the issue in the prior suit. Galaxy Steel & Tube, Inc. v. Douglass Coal & Wrecking, Inc., 928 S.W.2d 420, 422 (Mo.App.1996). Mere ownership of the vehicle would not be the basis for imputing any negligence of the daughter-in-law to Stine as the owner. Stover v. Patrick, 459 S.W.2d 393, 401 (Mo. banc 1970). None of the elements are satisfied by a default judgment against a party not in privity with Stine. No authority is cited to support the extension of the collateral estoppel doctrine to a case like this. Any such extension would be inconsistent with the policies underlying the doctrine. For these same reasons negligence per se does not bar this claim.

The court therefore erred in granting the motion to dismiss based on either res judicata or collateral estoppel. The judgment is reversed and the cause remanded to the trial court for further proceedings.

HAROLD L. LOWENSTEIN, Presiding Judge, and ROBERT G. ULRICH, Judge, concur.

      . RSMo 517.041 requires service to be made no less than 10 days prior to the return date but not more than 30 days. Respondent apparently does not raise any question about the service.

      . She makes no similar claim with regard to the defense of estoppel.

      . The defense of failure to state a claim upon which relief can be granted is never waived. Rule 55.27(g)(2).

      . The Supreme Court has made a similar analysis regarding the defense of collateral estoppel. Green v. City of St. Louis, 870 S.W.2d 794, 797 (Mo. banc 1994).