author: THOMAS H. NEWTON, Judge.

text:
    Carolyn Jeanette (Dunham) JOHNSTON, Appellant, v. John Arthur DUNHAM, Jr., Respondent.
    No. WD 64479.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Motion for Rehearing and/or Transfer to
    Supreme Court Denied Oct. 4, 2005.

      Jeffrey L. Dull, Clinton, MO, for Appellant.
    James 0. Kjar, Warsaw, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

I. FACTUAL AND PROCEDURAL OVERVIEW

Ms. Carolyn (Dunham) Johnston and Mr. John Dunham were married in 1991 and have three children: Linzy (born May 28, 1992), Livia (born August 4, 1993), and Tucker (born October 19, 1994). Their marriage was dissolved on December 30, 2002, and the parties were given joint legal custody with Ms. Johnston receiving primary physical custody. Mr. Dunham had visitation with the children every other weekend, every Tuesday or Thursday evening, every weekend in June, the entire month of July, and alternate holidays.

After the divorce, both parties remained in Warsaw, Missouri, within a few blocks of each other. Mr. Dunham lived in the former family home, while Ms. Johnston rented a duplex.

In March of 2003, Ms. Johnston informed Mr. Dunham via certified mail of her intention to move herself and the children to Harrisonville, Missouri. Mr. Dun-ham filed a Motion to Prohibit Relocation on March 28, 2003, and Ms. Johnston timely replied. The parties attempted mediation on June 23, 2003, but no resolution was reached.

On July 2, 2003, Ms. Johnston married Mr. Bill Johnston, who resided in Harri-sonville. Her lease on her duplex expired in May and the landlord rented it to someone else, so she had to vacate. She did not sign a contract renewing her employment around Warsaw, and she obtained a new job near Harrisonville. She moved to Harrisonville with her new husband in July, while the children were in Warsaw with their father.

The trial regarding the Motion to Prohibit Relocation was set for August 20, 2003, and Ms. Johnston made arrangements to stay with a friend in Warsaw until the hearing. But on August 1, the judge assigned to the case recused himself and no new date was assigned. Shortly thereafter, Ms. Johnston relocated the children to Harrisonville. She then provided all the transportation to get the children to Warsaw for Mr. Dunham’s visitation. Mr. Dunham filed a Motion to Modify Custody on August 13, 2003, and Ms. Johnston filed a counter-motion. The trial was held in May and June of 2004, and the trial court entered a judgment in favor of Mr. Dunham. The court found that Ms. Johnston’s violation of section 452.377 was a change of circumstances and that it was in the best interests of the children for Mr. Dunham to obtain custody-

Ms. Johnston brings four points on appeal. First, she claims that the trial court erred in finding that her violation of section 452.377 was a change of circumstances that would allow for modification of custody. Second, she claims that the trial court erred in modifying custody because its determination that such a change was in the children’s best interests was unsupported by the evidence. Third, she claims that the trial court erred in finding that the modification was in the children’s best interests because it did not inquire into or consider the children’s wishes about their custodian. And fourth, she claims that the trial court erred in modifying custody because the relocation was made in good faith and in the children’s best interests.

II. STANDARD OF REVIEW

We review custody modification cases under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); the trial court’s ruling should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it declares or applies the law incorrectly. Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). The judgment in custody cases is given greater deference than in other trial court decisions, Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App.W.D.2000), and there is a presumption that the findings of the lower court were made in the best interest of the child. Wright ex rel McBath v. Wright, 129 S.W.3d 882, 884 (Mo.App. W.D.2004). In general, this court will affirm the judgment below, unless we are “firmly convinced that the [child’s] welfare requires some other disposition.” Meyer v. Block, 123 S.W.3d 316, 321 (Mo.App. W.D.2003).

III. LEGAL ANALYSIS

To modify a prior custody decree, a court must find “that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” § 452.410. So two things must be found: (1) a substantial change in circumstances and (2) that the best interests of the child will be served by the modification. Heslop v. Sanderson, 123 S.W.3d 214, 218 (Mo.App. W.D.2003). The trial court found both here.

Ms. Johnston asserts that the trial court should not have found that her moving the children to Harrisonville, in violation of section 452.377, was a change in circumstances sufficient to modify custody. Under section 452.377, before a parent may relocate a child’s residence, that parent must give the other parent written notice. If the other parent does not file a motion to prevent the relocation within thirty days, then the child may be relocated sixty days after the notice was provided. § 452.377.7. This creates two ways for a parent to relocate: (1) non-court-ordered relocation, where the other parent does not timely file a motion to prohibit the relocation after receiving proper notice, so the relocating parent may move; and (2) court-ordered relocation, where the other parent does timely object and the court then holds a hearing and decides to allow the relocation. Wright, 129 S.W.3d at 886-87. Because Mr. Dunham timely filed his motion to prohibit the relocation, Ms. Johnston’s only option was court-ordered relocation.

Because the original judge re-cused himself, the hearing on this matter was cancelled and did not commence until a year later. During that time, Ms. Johnston relocated the children with her to Harrisonville, over Mr. Dunham’s objections and without the court’s permission. This was a violation of section 452.377. “Violation of the provisions of this section or a court order under this section may be deemed a change of circumstances under section 452.410, allowing the court to modify the prior custody decree.” § 452.377.12. The trial court found that Ms. Johnston’s violation of the statute was a change of circumstances. Ms. Johnston argues that because the statute says “may be deemed,” the trial court was not required to find that her actions were a change of circumstances sufficient to modify custody. She points to the unusual circumstances here in that the hearing was delayed a year and that she provided all the transportation to ensure that Mr. Dunham was able to exercise all of his court ordered visitation during that time.

While Ms. Johnston’s point is well taken, just because the court is not required to take a factor into account does not mean that it cannot do so. The statute specifically gives the court discretion to choose whether the relocation of the child is a sufficient change in circumstances. In this case, the trial court found that moving the children to Harrisonville in violation of the statute was a change in circumstances. And based on our standard of review in these cases, we defer to that decision. Brandow, 18 S.W.3d at 587.

Ms. Johnston had other options; she could have asked for an expedited trial or for a temporary order allowing her to move with the children until the case was decided. She chose to do neither of these things, instead moving the children in violation of the statute. A parent who wishes to move is allowed to do so, even if the other party files a Motion to Prohibit Relocation, after a hearing regarding whether the move is in the best interest of the child. “A parent is not allowed to relocate without first having complied with the requirements of § 452.377, either as to non-court-ordered or court-ordered relocation.” Herigon v. Herigon, 121 S.W.3d 562, 566 (Mo.App. W.D.2003). The trial court did not abuse its discretion in deciding to apply section 452.377.12 after Ms. Johnson chose to not comply with the statute.

Because the trial court acted within its discretion in finding that there was a change of circumstances, we now must consider whether the trial court properly found that the modification was in the children’s best interests. Ms. Johnston’s second and third points both deal with this issue. Section 452.375.2 lists the eight factors that the trial court must review when deciding the children’s best interests. The trial court considered each factor in great detail and made findings that supported its determination that changing residential custody to Mr. Dunham was in the children’s best interests.

For the most part, Ms. Johnston does not contradict the trial court’s findings about Mr. Dunham, but instead she presents evidence that would support finding that it would be in the children’s best interests to continue residing with her. This simply shows that this is a case where there is evidence to support both sides. “Because of the trial court’s superi- or vantage in viewing the evidence and live testimony, we show deference to its determinations, viewing the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the court’s judgment.” Meyer, 123 S.W.3d at 321. Evidence that goes against these conclusions is disregarded as long as there is support in the record to sustain such inferences. Id. “[T]he fact that a ruling contrary to the trial court’s is supported by substantial evidence is of no consequence and does not entitle the appellant to appellate relief.” Herigon, 121 S.W.3d at 567. We do not look to whether an alternate judgment could be supported, only whether the actual judgment is supported. Id.

Ms. Johnston particularly focuses on the fact that the trial court did not specifically ask the children who they preferred as them custodian. One of the statutory factors to be considered by the court is the wish of the child as to his or her custodian. § 452.375.2(8). The trial court in this case interviewed each child in camera and analyzed evidence from other witnesses about the children’s preference. It found that the children preferred to live in Warsaw with their father. Ms. Johnston argues that there was little evidence about the children’s wishes in the record and that the trial court failed to ask the children.

Ms. Johnston is correct that there must be some evidence in the record about the children’s wishes for their custodian. Sanders v. Busch, 123 S.W.3d 311, 314 (Mo.App. W.D.2003). But there is no requirement that the child be specifically asked which parent he or she wants to live with; a trial court can consider other admissible evidence in the record to make its decision regarding preference. Id. Further, modification of custody does not turn on the desire of the child alone. Reeves-Weible v. Reeves, 995 S.W.2d 50, 62 (Mo.App. W.D.1999). In this case, there was evidence in the record about where the children would prefer to live, including their answers to the trial court’s questions about life in both Warsaw and Harrison-ville. The trial court did not abuse its discretion in not asking the children who they preferred to live with nor in finding that they would prefer to live with Mr. Dunham in Warsaw. Because the record supports the trial court’s findings, we defer.

Ms. Johnston’s final point is that the relocation was made in good faith. Under section 452.377.9, the person seeking to relocate the children must prove that the proposed relocation is made in good faith and is in the best interests of the children. The trial court did not discuss whether or not her relocation was made in good faith. But whether she moved in good faith is irrelevant because she moved the children without a court-order and while the issue of relocation was still pending. The statute is discussing a proposed relocation, and at the point that the trial court made its decision, she had already relocated, so the trial court did not abuse its discretion in not considering this question. Wright, 129 S.W.3d at 891-92 (because the mother had already moved with the child, this was not a case of proposed relocation, so her good faith was a non-issue; her failure to comply with the statute justified the trial court’s modification of custody and finding of contempt).

IV. Conclusion

The trial court’s decision is affirmed. The trial court did not abuse its discretion in finding that Ms. Johnston’s violation of section 452.377 was a change in circumstances justifying modification of custody. There was also sufficient evidence in the record to support the trial court’s finding that the modification was in the children’s best interests. Finally, whether Ms. Johnston acted in good faith is irrelevant.

VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., J., concur.

      . Although this term no longer has any legal meaning, Loumiet v. Loumiet, 103 S.W.3d 332, 336-38 (Mo.App.W.D.2003), that is how her custody was denominated in the original decree.

      . Unless otherwise indicated, all statutory references are to RSMo 2000.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alfonso NUNOZ, Respondent, v. Kevin HINKLE, Defendant, Direct Messenger, Appellant.
    No. WD 64349.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Kevin O’Neil Murphy, Overland Park, KS, for Appellant, Direct Messenger.
    John E. Franke, Kansas City, MO, for Defendant.
    Kathleen M. Hagen, Kansas City, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Direct Messenger Service, Inc. appeals from the order of the trial court granting Alfonso Nunoz a new trial on his claims of negligence and negligence per se. It contends that the trial court abused its discretion in granting a new trial based on improper closing argument because the argument was justified by evidence in the record, a fair retort of Mr. Nunoz’s case, and an isolated comment that did not affect the outcome of the trial. The order of the trial court is affirmed. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge. PAUL M. SPINDEN, Judge,

text:
    STATE of Missouri, Respondent, v. William JONES, Jr., Appellant.
    No. WD 63842.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.

      Kent Denzel, Columbia, for appellant.
    Deborah Daniels, Asst. Atty. Gen., Jefferson City, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

The State charged Appellant, William Jones Jr. (“Jones”), with the Class D felony of abandoning a corpse, section 194.425.1. A Boone County jury found him guilty as charged, and the circuit court sentenced him to a four-year term of imprisonment in the custody of the Missouri Department of Corrections. Jones appeals the circuit court’s judgment of conviction, advancing two points relied on.

In his first point, which resolves his appeal, Jones asserts that, because he could not be found to have committed the charged offense beyond a reasonable doubt on the evidence presented at trial, the circuit court erred in overruling his motion for a directed verdict of acquittal at the close of the State’s case.

“A directed verdict of acquittal is authorized only where there is insufficient evidence to support a guilty verdict.” State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993). “The function of the court is limited to determining whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged. In evaluating this issue, trial and appellate courts must view the evidence and all of its reasonable inferences in the light most favorable to the State, disregarding any evidence or inferences to the contrary.” Id. (internal citations omitted). Resolution of this case also involves statutory interpretation. “Questions of statutory interpretation, of course, are questions of law, which this court reviews de novo.” State v. Harney, 51 S.W.3d 519, 532 (Mo.App. W.D.2001).

Viewed in accordance with our standard of review, the facts of this case are straightforward. On the morning of December 31, 2002, Jones and his girlfriend drove to the rural Callaway County mobile home of Justin Eric Hazlett, Jones’ friend and “fishing buddy” of seven or eight years, to pick up a wood-burning stove Hazlett had promised to give to Jones. Jones saw what appeared to be Hazlett lying on the front lawn, and he got out of the car to check on him. He thought that Hazlett, whose body was prone and facing upward, might be sleeping, unconscious after drinking heavily or having being beaten, or dead. He kicked the heel of one of Hazlett’s shoes. When he noticed that Hazlett’s body looked “kind of yellow” and that there was dried blood on his face and coming out of his nose, Jones concluded that Hazlett was dead. He then returned to his vehicle and drove away. He told his girlfriend that Hazlett was dead and, if asked, not to tell the police that they had been at Hazlett’s house. Jones did not report the corpse’s location to Callaway County law enforcement officials. Someone else did, apparently around noon the same day. Hazlett, who was last seen alive at a local gathering place called Crane’s Store on the evening of December 30, had been shot twice in the head sometime between then and when Jones discovered his corpse the following morning.

The jury convicted Jones of violating section 194.425.1, which provides, in its entirety: “A person commits the crime of abandonment of a corpse if that person abandons, disposes, deserts or leaves a corpse without properly reporting the location of the body to the proper law enforcement officials in that county.” As mentioned above, abandonment of a corpse is a Class D felony, § 191.125.2, and the circuit court sentenced Jones to a four-year term of imprisonment in the custody of the Missouri Department of Corrections.

Jones did not testify and presented no other evidence at trial. However, his motion for a directed verdict of acquittal at the close of the State’s evidence was overruled, and this was assigned as error in his unsuccessful motion for new trial and point relied on, thus fully preserving the sufficiency issue for appellate review. See State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969). Our primary objective in interpreting section 194.425.1 is to give effect to the General Assembly’s intent, and we discern that intent from the plain and ordinary meaning of the statute’s words. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003). The plain and ordinary meaning of the words of a statute is their meaning “found in the dictionary ... unless the legislature provides a different definition.” Lincoln Indus., Inc. v. Dir. of Revenue, 51 S.W.3d 462, 465 (Mo. banc 2001). In this regard, our Supreme Court’s recent interpretation of section 194.425.1 in State v. Bratina, 73 S.W.3d 625 (Mo. banc 2002), is instructive.

In Bratina, the State alleged that the defendant, James Bratina, left his apartment in Jackson, Missouri, on January 15, 2001, at about 6:40 a.m., leaving behind his three-year-old daughter and the body of his deceased wife. 73 S.W.3d at 626. When Bratina left the apartment, he went to his place of work and returned about three to four hours later, at which time he called 911. Id. at 626, 628. Bratina was charged with the class D felony of abandonment of a corpse and the class A misdemeanor of endangering the welfare of a child in the second degree. Id. at 626. After he moved to dismiss the felony charge, arguing that section 194.425.1 was unconstitutionally vague, the trial court granted the motion and declared the statute to be void. Id. The State appealed, and the Missouri Supreme Court reversed, holding that the statute did not violate the due process clause since it gave Bratina fair notice of the conduct that it declared to be a crime. Id. at 626, 629.

After setting forth the text of section 194.425 in full, the Court began its analysis by noting that “[t]here is a question as to what conduct is made criminal by this statute.” Id. at 626. To illustrate this, the Court recounted at length a familiar scene from The Adventures of Huckleberry Finn, in which Huck Finn and his friend Jim discovered a naked male body in a house located on a flooded island in the Mississippi River but left it where they found it without reporting it to anyone. Id. After canoeing over to the island, they came upon the house and entered through an upstairs window. Id. At daybreak, they looked in the window, and Huck described what they saw:

There was something laying on the floor in the far corner that looked like a man. So Jim says: ‘Hello, you!’
It didn’t budge. So I hollered again, and Jim says: ‘De man ain’t asleep— he’s dead. You hold still.’
He went, and bent down and looked, and says: ‘It’s a dead man. Yes, indeedy; naked, too. He’s ben shot in the back. I reck’n he’s ben dead two er three days. Come in, Huck, but doan’ look at his face — it’s too gashly.’
I didn’t look at him at all. Jim threw some old rags over him but he needn’t done it; I didn’t want to see him.
[The narrator then recounts how Huck and Jim made a ‘good haul’ of belongings in the house and then left:] I pad-died over to the Illinois shore, and drifted down most a half a mile doing it. I crept up the dead water under the bank, and hadn’t no accidents and didn’t see nobody. We got home all safe.

Id. at 626-27 (internal citation omitted).

Turning to the words used in section 194.425.1, the Court then noted:

The concept of “abandonment” in the statute clearly is based upon a person having an interest in, or duty with respect to, the body. To abandon, the dictionary tells us, is “to cease to assert or exercise an interest, right or title to esp. with the intent of never again resuming or reasserting it .... ” or “to forsake or desert esp. in spite of an allegiance, duty, or responsibility.” The words that the statute uses to describe the concept of abandonment are “abandons, disposes, deserts or leaves.” The first three of these words contain the concept that the person has a relationship or duty with respect to the body. To dispose of something implies that one has possession of it. Similarly, to desert — one of the synonyms of abandon— includes the concept of turning away from or withdrawing support or disrupting the bond of attachment or duty.

Id. at 627 (footnotes omitted).

As to the last word used by the General Assembly in section 194.425.1 to describe the concept of abandonment (“leaves”), the Court noted that it was ambiguous when considered in isolation. Id. “Does it mean leaves,” the Court asked, “as in what Huck and Jim did, or leaves, as in mortuary attendants carrying and leaving a body on the front porch of a decedent’s home when the relatives fail to pay for its disposition?” Id. That is to say:

If Huck Finn and his friend Jim were real 21st century Missourians, might they be facing a D felony for abandonment of a corpse? They, after all, did ‘leave’ a corpse that they had found. Bratina makes a similar point, that someone walking down the street, an innocent bystander, would be committing a crime if he kept walking without reporting the corpse to the proper authorities.

Id. (original paragraph style omitted).

The Court resolved the ambiguity created by the legislature’s use of the word “leaves” by observing that “leaves” was “not used in isolation, but along with the words ‘abandons, disposes, deserts.’ ” Id. Applying the maxim of statutory construction known as noscitur a sociis (“it is known from its associates”), the Court held that inasmuch as “these terms all have as part of their meaning a relationship or duty with respect to the dead body,” that was also the sense in which “leaves” was employed by the legislature. Id. & n. 5. Thus, the Court held that the term “leaves” also has as part of its meaning a relationship or duty with respect to the dead body.

Our Supreme Court went on to recognize that, on the facts before it, it was unnecessary to expressly rule on the question of “whether the statute, section 194.425, goes as far as to impose a duty on a stranger to notify the authorities when a dead body is discovered.” Id. That was because Bratina’s relationship or duty with respect to the corpse at issue was not that of a mere stranger or “innocent bystander.” Id. Instead, the Court stressed, “[t]he body is that of his wife, the body was in his household, and he is the next of kin.” Id. These facts, the Court held, were sufficient to impose a common law duty upon Bratina to properly care for the body of his dead wife. Id. at 627-28 (citing Percival E. Jackson, The Law of Cadavers 38-36 (2d ed.1950)).

The State contends that, in accordance with Bratina, Jones’ close friendship to Hazlett created the necessary common law relationship or duty, arguing that although “friendship does not denote a legal or blood relationship like that of a husband and wife or parent and child, it is a relationship with an implied allegiance.” However, this approach to the statute is erroneous because it looks to a relationship other than one involving the corpse. Since the bond or duty must be in relation to the corpse, Jones’ friendship to Hazlett was irrelevant unless it imposed some duty on Jones to take care of Hazlett’s corpse. See id. at 627. We know of no duty that would impose an obligation on Jones to take care of Hazlett’s corpse. Accordingly, that Jones had been Hazlett’s Mend while Hazlett was alive put him in no different legal position, vis-a-vis Hazlett’s corpse, than had the two always been total strangers to each other.

In this case, Jones had no common law responsibility for Hazlett’s corpse, which he merely happened upon in Hazlett’s front yard. Accordingly, here the court is called upon to decide whether section 194.425.1 imposes a duty, the violation of which constitutes a felony criminal offense, on a person to notify the proper county law enforcement authorities when he or she merely encounters what he or she has determined to be a dead body but has no common law relationship or duty with respect to its proper care or sepulcher. Although the Court in Bratina did not come out and simply say so due to the procedural posture of the case, a careful reading of the opinion makes it clear that the statute imposes no such duty because, as used in section 194.425.1, “leaves” was employed by the legislature in its more limited sense rather than in its broader sense. In other words, it was used in the sense of mortuary attendants carrying and leaving a body on the front porch of a decedent’s home when the relatives fail to pay for its disposition, as opposed to what Huck and Jim did. Accordingly, as used in section 194.425.1, “leaves” should be construed to mean “put[s], placets], deposit[s], or deliver[s] before or in the process of departing or withdrawing” or “cause[s] to be ... in some specified condition,” WebsteR’s ThiRD New INTERNATIONAL DICTIONARY OF THE English Language UnabRidged 1287 (1993), rather than “permit[s] to remain undisturbed or in the same position.” M Such a construction is consistent with our Supreme Court’s observations in Bratina, where the Court strongly implied that to “leave” a corpse in the latter sense does not involve a sufficient “relationship or duty with respect to the dead body” for that conduct to be prohibited by section 194.425.1, while to “leave” a corpse in the former sense does. Bratina, 73 S.W.3d at 627. Indeed, this must be the case if the Court’s extended discussion of Huck and Jim’s act of leaving a corpse they had found (as opposed to a mortician’s act of leaving a corpse on a nonpaying client’s front porch) is to be given any effect or meaning by this court.

This is not, as argued in the dissent, a departure from the cardinal rule of statutory construction that courts will apply a word’s plain and ordinary meaning unless the legislature makes clear that it intends a different meaning. Dissenting Opinion at 460. Rather, it simply acknowledges the fact that “leaves” has at least two plain and ordinary meanings (one broad and one narrow), and in Bratina, the Court strongly suggested (although it did not formally hold) that the more limited meaning was the one intended by the General Assembly.

For the foregoing reasons, it cannot be said that Jones “left” Hazlett’s corpse as contemplated by the statute when he drove off after walking up to the body, kicking the heel of one of Hazlett’s shoes, seeing the dried blood on Hazlett’s head, and realizing that he was dead. He had not put, placed, deposited, delivered, or otherwise caused the body to be there before departing, and no law obligated him to take care of the body or to arrange for its sepulcher. He had only accidentally happened upon the corpse and merely permitted it to remain just as it was when he first discovered it. “There having been no substantial evidence of defendant’s guilt defendant’s motion for a directed verdict of acquittal should have been sustained.” State v. Irby, 423 S.W.2d 800, 803 (Mo.1968).

The dissent nevertheless argues for a much broader interpretation of the word “leaves” — one which would encompass both a mortician’s act of leaving a corpse on a nonpaying client’s front porch, as well as what Huck and Jim (and Jones) did. Dissenting Opinion at 459. The dissent asserts that because section 194.425.1 criminalizes conduct that is wrong in itself, or malum in se, to construe that word as we do here would thwart the statute’s “commonly understood” purposes, noting that Jones did not “remain afar from and uninvolved with Hazlett’s corpse,” but “got involved with it” by getting out of his car to determine why the body was lying where it was and kicking the heel of one of Hazlett’s shoes to try to arouse him. Id. at 459, 460. Citing multiple alternative dictionary definitions of “abandon,” “desert,” “dispose,” and “leave,” the dissent concludes that Jones violated section 194.425.1 when he withdrew this “voluntarily extended support and help” without subsequently reporting the location of Ha-zlett’s corpse to county law enforcement officials in the plain and ordinary sense of those words. Id. at 459-60. We perceive this view to be incorrect for several reasons.

First of all, as noted supra, the dissent’s interpretation is inconsistent with what our Supreme Court said in Bratina about the meaning of the word “leaves” as it is used in section 194.425.1, because Huck and Jim did just as much if not more with respect to the corpse they encountered as Jones did with Hazlett’s corpse. That is, Huck and Jim did not “remain afar from and uninvolved with” the naked male body they encountered, but “got involved with it” by trying to determine why the body was lying where it was and yelling at the man to try to arouse him. After they determined that he was, in fact, dead due to a gunshot wound, Jim threw some old rags over the corpse in an attempt to spare Huck from the ghastly visage, and they departed without telling anyone what they had seen and done.

Second, the dissent’s construction of the word “leaves” is heavily influenced by the definitions of two other words used in section 194.425.1 — “abandons” and “deserts” — both of which may involve (but do not necessarily require) a prior act of control or possession on the part of the actor. Id. The dissent further defines the term “disposes,” which is also used to describe the concept of abandonment in section 194.425.1, as meaning ‘assign[s] to a particular place or position[.]’ ” Id. at 459. As observed by the Court in Bratina, “[t]o dispose of something implies that one has possession of it.” 73 S.W.3d at 627. Thus, even under the dissent’s definition of the word, one cannot dispose of a corpse without first assuming possession or control of it in some fashion. Therefore, the term “disposes” was used in its plain and ordinary sense of “discard[s]” or “get[s] rid of.” WebsteR’s Third New InteRnational DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 654 (1993); Blacks’ Law Dictionary 423 (5th ed.1979) (so defining “dispose[s] of’). Accordingly, the dissent’s interpretation of the statute is not consonant with the ordinary meaning of the associated term “disposes.”

Third, the dissent’s approach imposes no concrete limitations on the scope of the statute, because it does not advise the public, the bar, or the bench “precisely how much interest one must have in a corpse to be deemed to have committed the crime of abandoning a corpse.” Dissenting Opinion at 459. Suppose, for example, that instead of kicking the heel of one of Hazlett’s shoes, Jones had yelled or clapped his hands at Hazlett’s corpse, poked at it with a stick, or thrown a pebble at it. Would any or all of those acts constitute “protection, support, or help,” id. at 459, such that their discontinuation was sufficient to constitute abandonment? And under those circumstances, would Jones properly be deemed to have had a sufficient interest in or relationship to the corpse to make him guilty of having committed a Class D felony, which is punishable, under section 558.011.1(4), by a term of imprisonment in the custody of the Missouri Department of Corrections of up to five years? As it is, under the dissent’s interpretation of section 194.425, innocent bystanders or other strangers happening upon what appears to be a human body from a distance would naturally be more likely to simply ignore it rather than to come closer to attempt to ascertain whether the body was actually a corpse. So while our construction of the statute draws lines that make it unsatisfactory to the dissent (see Dissenting Opinion at 459, 460), the dissent’s construction has its shortcomings as well.

Fourth, and perhaps most importantly, while it is clear that our Supreme Court’s decision in Brntina compels this court to interpret the word “leaves” as used in section 194.125.1 in its more limited sense, even if it could be said that it is equally possible that the legislature intended that the word be construed in its broader sense, it really does not matter, because the statute would still be ambiguous, and the result would be the same.

It has been the law of this state for more than a century that criminal statutes must be construed strictly against the State and liberally in favor of the defendant.

The question presented calls for the construction of a criminal statute. In doing so we are to determine the intent of the Legislature, but in making this determination ‘it is a fixed rule that such statutes must be strictly construed against the state and liberally in favor of the defendant, and that no one is to be made subject to criminal prosecution by implication.’

State v. Lancaster, 506 S.W.2d 403, 404 (Mo.1974) (quoting State v. Getty, 273 S.W.2d 170, 172 (Mo.1954)). This is particularly so where, as here, the criminal statute under consideration is ambiguous and is reasonably susceptible to more than one construction. “[W]hen ambiguity exists in criminal statutes they are to be construed more strictly against the state.” State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999).

In practical terms, what does this rule of strict construction mean? For one thing, it means that “[statutes defining crimes will not be interpreted as embracing any but those acts or omissions clearly described in the statute both within the letter and spirit of the law.” State v. Fredrickson, 689 S.W.2d 58, 61 (Mo.App. E.D.1984). Such statutes may not be extended or enlarged by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within their terms. State v. Lloyd, 320 Mo. 236, 7 S.W.2d 344, 346 (1928). It also means that “[i]f there is a fair doubt whether the act charged and proved is embraced within the prohibition, that doubt must be resolved in favor of the accused.” Fredrickson, 689 S.W.2d at 61.

The dissent, however, does not follow the rule of strict construction applicable to ambiguous criminal statutes. Rather than strictly construing section 194.425.1 against the State and liberally in favor of the accused, the dissent reasons that the statute should be liberally construed in favor of the State and against the defendant since a broad interpretation could be deemed more beneficial to the public interest. Dissenting Opinion at 459. And rather than resolving in favor of the accused the substantial doubt as to whether the act charged and proved by the State was embraced within the statutory prohibition, the dissent concludes that this doubt must be resolved in favor of the State.

This court long ago rejected a similar argument in State v. McClary, 399 S.W.2d 597, 598 (MoApp. W.D.1966), where the State charged the defendant with a misdemeanor for “ ‘operating a disposal area for garbage, rubbish and refuse, without making application for, and obtaining a license for a dumping ground.’ ” After closely examining the County Option Dumping Ground Law, this court observed: “One would normally expect that the legislature would want to include such a prohibition in a law of this nature and that it would declare it in clear and unmistakable language. Still the fact remains that this was not done. Whether this omission resulted from inadvertence or studied consideration we cannot say.” Id. at 600. The court further noted that the rule of strict construction “must prevail even though courts may think that the legislature ought to have made a law more comprehensive and that by failing to do so it failed to accomplish a salutary purpose.” Id. at 599. In reversing the defendant’s conviction and ordering that he be discharged from his sentence, the McClary court concluded:

For us to enlarge the terms of this law by construction to make it embrace the defendant and his conduct would be a flagrant violation of the rule that criminal statutes must be construed strictly against the state and liberally in favor of the accused. We have no possible authority to construe this law as embracing an offense which is not already expressly written into it or so clearly, plainly and necessarily implied by the words the law employs that we can fairly say such offense is proscribed by the law beyond all rational doubt. What is charged against the defendant is not proscribed by this law. To read it into this law by construction would be for us to legislate rather than to adjudge, and this we are forbidden to do.

Id. at 600 (internal citations omitted).

The dissent argues that the McClary rationale and conclusion do not apply in this case due to the Missouri Supreme Court’s observation, in Bratina, that section 194.425.1 criminalizes conduct that is malum in se. See Dissenting Opinion at 460, 461. However, a closer reading of Bratina demonstrates that the Court mentioned the malum in se — malum pro-hibitum distinction only to meet the defendant’s constitutional due process argument that the statute (in particular, the phrases “proper notice” and “proper law enforcement officials”) was so vague and uncertain that it did “not convey to him any understanding of his duties under the law.” 73 S.W.3d at 628. “The standard for determining whether a statute is void for vagueness is whether the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence.” Id. Here, however, we are not faced with a facial void-for-vagueness challenge subject to that exacting standard, but simply a question of statutory construction. Moreover, the dissent cites no authority for the proposition that Missouri’s long-standing and fundamental rule of strict construction applicable to ambiguous criminal statutes does not apply when the criminal statute being construed prohibits conduct that is malum in se. The Court in Bratina certainly did not say so, while in McClary, this court applied the rule despite the fact that the allegedly prohibited conduct (unlicensed operation of a public garbage dump) was arguably ma-lum in se because it raised potential public health issues. In any event, this court held long ago that whether the forbidden act is considered malum in se or malum prohibitum, a criminal defendant has the presumption of innocence, which can be overcome only by evidence sufficient to prove the violation beyond a reasonable doubt. City of Stanberry v. O’Neal, 166 Mo.App. 709, 150 S.W. 1104, 1105-06 (1912).

Furthermore, while it is true that Missouri courts have sometimes gleaned legislative purpose by considering “ ‘the object the legislature seeks to accomplish with an eye towards finding resolution to the problems addressed therein,’ ” Dissenting Opinion at 460, we are still “governed by what the legislature said by its own enactment, even though we might think an important provision has been omitted through inadvertence” or the use of imprecise language. McClary, 399 S.W.2d at 600. As stated in Gray v. Wallace, 319 S.W.2d 582, 585 (Mo.1958): “We must, however, determine the legislative intent from what the legislature said and not from what we think the legislature intended to say or inadvertently failed to say.” Accordingly, we are left with the Missouri Supreme Court’s admonishment, in State v. Rowe, 63 S.W.3d 647 (Mo. banc 2002), that “[legislative intent can only be derived from the words of the statute itself.” Id. at 650 (citing Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998)); see also State v. Krueger, 134 Mo. 262, 35 S.W. 604, 606 (1896) (“We can only arrive at the intention of the legislature by the language used in the act[J”)

Thus, even if Bratina did not require this court to interpret “leaves” in its narrower sense, the rule of strict construction of criminal statutes would compel us to do so. In either case, the word “leaves” as used in section 194.425.1 would have to be construed to mean “put[s], placets], deposit[s], or delivers] before or in the process of departing or withdrawing” or “cause[s] to be ... in some specified condition,” rather than “permit[s] to remain undisturbed or in the same position.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY op the English Language Unabridged 1287 (1993).

The judgment of conviction is reversed and the defendant is ordered discharged from his sentence.

HOWARD, J., concurs.

SPINDEN, J., dissents in separate opinion filed.

PAUL M. SPINDEN, Judge,

dissenting.

William Jones, Jr., is being released from his duty to report Justin Hazlett’s corpse to authorities because he merely kicked the corpse. Had he dragged it, even a few inches — say, to Hazlett’s front porch — he suddenly would have had a duty to report the corpse’s location. This fine-haired distinction makes little sense in terms of public policy, and, more importantly, it is contrary to the General Assembly’s intent in § 194.425.1, RSMo 2000, which the Supreme Court has declared to be “commonly understood.” State v. Bratina, 73 S.W.3d 625, 628 (Mo. banc 2002).

I have no quandary concerning whether or not § 194.425.1 imposed a duty on Jones to report the location of Hazlett’s corpse to county authorities. The Supreme Court resolved the only ambiguity in the statute’s language. Id. Applying the Supreme Court’s teaching in Bratina along with the cardinal rule of statutory construction — that we discern the legislature’s intent by applying the plain and ordinary meaning of the words that it uses in its statute — leads me to the certain conclusion that we should affirm the circuit court’s judgment convicting Jones of abandoning Hazlett’s corpse.

The teaching of Bratina is clear. We glean the underlying concept of abandonment of a corpse from the terms that the General Assembly used in § 194.425.1: “abandons, disposes, deserts, or leaves.” Although “abandons,” “deserts,” and “leaves” are synonyms, the Supreme Court concluded that “leaves” was ambiguous because it is amenable to describing one’s happening upon a body as well as a mortician’s leaving a corpse on a nonpaying client’s porch. Id. at 627. It concluded that “abandons,” “disposes,” and “deserts” all required “a person[’s] having an interest in, or duty with respect to, the body,” and that “leaves,” therefore, should, too. Id. The Supreme Court resolved the ambiguity presented by “leaves” by declaring that, consistent with “abandons,” “disposes,” and “deserts,” one can commit the crime of abandonment of a corpse by leaving it only if he has an interest in, or duty with respect to, the corpse.

The Supreme Court does not tell us how much interest one must have in a corpse to be deemed to have committed the crime of abandoning a corpse. Does he have to put or to place the corpse at the location before leaving it? We, however, are not left in a quandary on this matter. We can readily find the answer by employing the same dictionary that the Supreme Court used in Bratina.

The dictionary makes clear that one can abandon a corpse by “withdraw[ing] one’s protection, support, or help from [it.]” WEBSTER’S THIRD New INTERNATIONAL DICTIONARY of the English Language UnaBRIdged 2 (1993). When one takes steps to lend protection, support, or help, withdrawal of it constitutes abandonment. Significantly, under this definition, one need not have placed an object in a location to be deemed to have abandoned it. The same is true of “desert” and “dispose.” One can desert a corpse by “turnfing] away from (what has previously engaged [him]) especially] by withdrawing support or disrupting bonds of attachment or duty” or by “abandon[ing it] ... :[by] breaking] away from or breaking] off association with [it.]” Id. at 610. One can dispose a corpse by “assigning it] to a particular place or position[.]” Id. at 654. In the same way, one leaves a corpse by “withdrawing] ... [him]self from [it] whether temporarily or permanently: [by] go[ing] away or departing] from [it] ... :[by] put[ting], placing], depositing], or delivering it] before or in the process of departing or withdrawing [from it] ... :[by] deseRt[ing], abandon[ing], FORSAK[lNG it] ... :[by] terminating] association with [it]:[by] quitting] the service of [it.]” Id. at 1287.

Jones did not remain afar from and uninvolved with Hazlett’s corpse. He walked up to it and got involved with it, trying to determine why his friend was lying out on the ground in the cold of winter. He kicked Hazlett to try to arouse him. After deciding that Hazlett was dead, Jones withdrew his voluntarily extended support and help — as minimal as it was — by walking away and instructing his girlfriend to lie to police about their encounter with Hazlett’s body. In the plain and ordinary sense of “leaves” — understood in a sense consistent with “abandons,” “disposes,” and “deserts” — Jones abandoned Hazlett’s corpse.

Thus, employing the plain and ordinary meaning of § 194.425.1’s terms leads me to the certain conclusion that Jones left Ha-zlett’s corpse, and § 194.425.1 imposed on him a duty to report the corpse’s location to proper authorities. Indeed, when a statute uses a pedestrian word such as “leave,” the General Assembly has a right to expect that we will apply the word’s plain and ordinary meaning unless it makes clear that it intends a different meaning. Section 1.090, RSMo 2000. We have assured the legislature repeatedly that this is the cardinal rule of statutory construction. State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004).

After spending much time with the definitions of § 194.425.1’s terms, the Supreme Court noted in Bratina, in its discussion of whether or not the statute was vague, that § 194.425.1 “criminalizes conduct that is wrong in itself,” or malum in se. 73 S.W.3d at 628. This observation is significant in this case because, in a statute criminalizing conduct that is malum in se, “the evil that is being remedied is commonly understood.” Id. I would agree that, given the nature of corpses, the evil underlying § 194.425.1 is certainly commonly understood. Because of health risks involved with corpses, the inhumanity of leaving corpses lying around unattended, and the need for law enforcement authorities to investigate any criminal activity surrounding the corpse, authorities would want to know that Hazlett’s corpse was lying unattended in his front yard. I think that they would want to know of a mortician’s leaving a corpse on a nonpaying customer’s porch, and I think that they surely would want to know about the body that Huckleberry Finn and his friend Jim found.

To interpret “leaves” as applying only when the defendant put or placed the corpse in the location thwarts these “commonly understood” purposes. And it has the effect of encouraging an individual who happens upon a body, kicks it and determines that the person is deceased, to walk away without reporting the incident to anyone. I am very doubtful that this is what the General Assembly intended when it enacted § 194.425.1. We must avoid interpretations that defeat a statute’s evident purpose. State ex rel. Nixon v. Quik-Trip Corporation, 133 S.W.3d 33, 37 (Mo. banc 2004); Ming v. General Motors Corporation, 130 S.W.3d 665, 668 (Mo.App.2004).

We have always gleaned legislative purpose from the plain and ordinary meaning of a statute’s words and always in consideration of “the object the legislature seeks to accomplish with an eye towards finding resolution to the problems addressed therein.” Gott v. Director of Revenue, 5 S.W.3d 155, 159 (Mo. banc 1999). For example, when the Supreme Court considered the purpose of § 589.400, RSMo, requiring sex offenders to register, it declared the “obvious legislative intent” to be protection of “children from violence at the hands of sex offenders.” J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo. banc 2000) (emphasis added).

In light of the legislature’s use of common terms in a malum in se statute, we err in resorting to the rule of lenity, a tool that is applicable only when all other rales of statutory construction fail. The rule of lenity applies to interpretation of statute only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what the legislature intended. United States v. Wells, 519 U.S. 482, 499, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). The rale does not require that a statute be given the narrowest meaning, but “it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.” United States v. Brown, 333 U.S. 18, 26, 68 S.Ct. 376, 92 L.Ed. 442 (1948).

Given the clear teaching of Bratina, we are not left to guess what the legislature intended in § 194.425.1. We merely need to give its words their fair meaning in accord with § 194.425.1’s commonly understood purpose. Doing so should result in our affirming the circuit court’s judgment convicting Jones of abandonment of a corpse.

      . All statutory references are to RSMo 2000.

      . Although the State had the option of charging and prosecuting Jones with having abandoned, disposed, deserted, or left Hazlett’s corpse, the State chose to argue (and to hypothesize to the jury in the verdict director) only that Jones ''left” Hazlett's corpse without reporting its location to county law enforcement officials.

      . " ‘The rule or maxim is to the effect that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Under this rule of noscitur a sociis, general and specific words, capable of analogous meaning, when used together, take color from each other, so that general words are restricted to a sense analogous to the less general, and the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used.' ” Foremost Dairies, Inc. v. Thomason, 384 S.W.2d 651, 660 (Mo. banc 1964) (quoting 66 C.J.S. Noscitur a Sociis 607, 608 (1950)). This maxim "is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth” in statutory construction. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961).

      . The record shows that the verdict director submitted by the State (and given by the trial court over objection by Jones) actually required the jury to find "that at the time defendant left the corpse, defendant was a friend of Justin Eric Hazlett.” As just observed, this reflected an erroneous conception of section 194.425.1. However, in light of our disposition of this case on other grounds, we need not (and do not) decide whether this constituted prejudicial reversible error, either plain or preserved.

      . See also Blacks’ Law Dictionary 801 (5th ed.1979) (defining "leave” as "[t]o put, place, deposit, deliver, or the like.”)

      . See also Blacks’ Law Dictionary 801 (5th ed.1979) (defining "leave” as "to let stay or continue” and "to suffer to remain subject to another’s action, control, or the like.”)

      . No matter which definition is used, the facts of this case clearly establish that Jones could not be deemed to have disposed of Hazlett’s corpse.

      . See also Goings v. Mo. Dep’t of Corr., 6 S.W.3d 906, 908 (Mo. banc 1999) (internal quotation marks omitted) ("In construing the statute, we are guided by the principle that criminal statutes must be construed strictly against the [s]tate and liberally in favor of the defendant.”); State v. Bartley, 304 Mo. 58, 263 S.W. 95, 96 (1924) ("Criminal statutes are to be construed strictly; liberally in favor of the defendant, and strictly against the state, both as to the charge and the proof. No one is to be made subject to such statutes by implication.”); State v. Reid, 125 Mo. 43, 28 S.W. 172, 173 (1894) ("A familiar rule of construction of criminal statutes is that they should be strictly construed, and not extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within their terms.”)

      . This, too, has been the law of Missouri for over a century. See, e.g., State v. Jones, 899 S.W.2d 126, 127 (Mo.App. E.D.1995) ("Any doubt as to whether the act charged and proved is embraced within the prohibition must be resolved in favor of the accused.”); Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, 48 (1943) (quoting State v. Taylor, 345 Mo. 325, 133 S.W.2d 336, 341 (1939)) (" ‘No person is to be made subject to [criminal] statutes by implication, and, when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused.' ”); State v. Sibley, 131 Mo. 519, 33 S.W. 167, 171 (1895) (Sherwood, J., concurring) (internal quotation marks omitted) (noting that the rule of strict interpretation of criminal statutes means that “all doubts concerning their interpretation are to preponderate in favor of the accused.”)

      . As best we can tell, the rule appears to be that a more liberal construction in favor of the defendant should be given in the interpretation of penal laws which are malum prohi-bitum in their nature than in the interpretation of penal laws which prohibit malum in se conduct, State v. Knecht, 28 Ohio N.P. (n.s.) 1, 5 (1930), not that the rule of strict construction is entirely inapplicable when the criminal statute being construed prohibits conduct that is malum in se.

      . The Supreme Court’s extensive discussion of Huckleberry Finn is a bit confusing. The only point that I gleaned from its discussion of Mark Twain’s character was that "leaves” is ambiguous because it can describe both what Huckleberry Finn did and a mortician’s leaving a corpse on a nonpaying customer’s porch. Bratina, 73 S.W.3d at 627. Significantly, the Supreme Court never said that Huckleberry Finn did not leave the corpse or that § 194.425.1 would not apply to what he did. It merely raised, without answering it, the issue of whether or not he would face charges of abandoning a corpse were Huck Finn a real character living in Missouri today. To the extent that it somehow matters, it seems to me that Huck Finn could be prosecuted for abandoning a corpse under the plain and ordinary meaning of § 194.425.l's words.


text:
    STATE of Missouri, Respondent, v. Frederick L. REVELS, Appellant.
    No. WD 64433.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Randall J. Schlegel, Kansas City, MO, for appellant.
    Curtis F. Thompson, Jefferson City, MO, for respondent.
    Before: NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Appellant-acquittee sought a second unconditional release from a mental health facility, pursuant to Section 552.040, RSMo 2000. Affirmed. Rule 84.16(b).


text:
    Richard SALES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63254.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Sarah Kristina Starke, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Richard Sales appeals the denial of his Rule 29.15 motion in which he sought to vacate his convictions for two counts of sodomy. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    Cindy A. WILHELM, Respondent, v. Donald L. WILHELM, Jr., Appellant.
    No. WD 64526.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Seth D. Shumaker, Kirksville, MO, for appellant.
    Cynthia A. Suter, Moberly, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Husband appeals from the portion of a judgment of dissolution where the trial court made an unequal distribution of marital property in favor of Wife. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Curtis WILLIAMS, Defendant/Appellant.
    No. ED 83702.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Deborah Daniels, Assistant Attorney General, Daniel N. McPherson, Jefferson City, for respondent.
    S. Kristina Starke, Assistant Public Defender, St. Louis, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, Curtis Williams, appeals from a judgment entered on a jury verdict finding him guilty of one count of second-degree murder (felony murder), in violation of section 565.021(2) RSMo (2000), one count of first-degree assault, in violation of section 565.050.2 RSMo (2000), and one count of armed criminal action, in violation of section 571.015 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to life imprisonment on the second-degree murder count, fifteen years imprisonment on the first-degree assault count, and thirty-five years imprisonment on the armed criminal action count, to be served consecutively.

No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Michael J. RITTER, Jr., Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85120.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Timothy Forneris, Assistant Public Defender, St. Louis, for appellant.
    Deborah Daniels, Assistant Attorney General, Evan J. Buchheim, Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Michael J. Ritter, Jr., appeals from a judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Reshay WRIGHT, Defendant/Appellant.
    No. ED 85133.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Ronald S. Ribaudo, Assistant Attorney General, Jefferson City, for respondent.
    Ellen H. Flottman, Columbia, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, Reshay Wright, appeals from a judgment entered by the trial court on a jury verdict finding her guilty of possession of methamphetamine with the intent to distribute, in violation of section 195.211 RSMo (2000), and possession of marijuana with the intent to distribute, in violation of section 195.211 RSMo (2000). The trial court sentenced defendant to five years imprisonment on the possession of methamphetamine count, but retained jurisdiction under section 559.115 RSMo (2000) to consider probation after 120 days of institutional treatment. The trial court sentenced defendant to twelve years imprisonment on the possession of marijuana count, to be served concurrently, but suspended execution of sentence on that count and placed defendant on five years probation.

No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    David KNIERIEM, Plaintiff/Appellant, v. John F. EILERMANN, Jr., Defendant/Respondent.
    No. ED 85875.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    David C. Knieriem, Law Offices of David C. Knieriem, Clayton, Appellant Acting Pro Se.
    John W. Moticka, Jane E. Dueker, Nathan J. Plumb, Stinson Morrison Hecker LLP, St. Louis, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Plaintiff appeals from the trial court’s judgment dismissing his libel action with prejudice for failure to state a claim. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Terrence D. REID, Defendant/Appellant.
    No. ED 85153.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Evan J. Buchheim, Assistant Attorney General, Jefferson City, for respondent.
    Michelle M. Rivera, St. Louis, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, Terrence D. Reid, appeals from a judgment entered by the trial court after a jury verdict finding him guilty of unlawful use of a weapon, in violation of section 571.030 RSMo (2000). The trial court sentenced defendant to eight years in prison.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


author: ROBERT S. BARNEY, Judge.

text:
    Sharon KEERAN, Respondent, v. Jessica N. MYERS and Larry W. Myers, Appellants, and Todd Eric Schlegel, Defendant.
    No. 26790.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 23, 2005.

      James R. Sharp, Sharp & Bredesen, Springfield, MO, for Appellants.
    John T. Kay, California, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellants Jessica Myers (“Mother”) and Larry Myers (“Father”)(collectively “Appellants”) appeal the trial court’s grant of grandparent visitation to Respondent Sharon Keeran (“Grandmother”).

In their first of two points on appeal, Appellants argue the trial court erred in allowing Grandmother to seek visitation with Ryne because amended section 452.402.1 precludes such an action when the parents of the child are legally married to each other and are living together with the child. Additionally, Appellants posit error in the trial court’s application of the savings statutes, sections 1.170 and 1.180, which permitted Grandmother to proceed under section 452.402, RSMo 2000, the previous version of the grandparent visitation statute which did not contain the aforementioned italicized limitation.

In their second point on appeal, Appellants maintain the trial court’s grant of grandparent visitation as to both children was in error because such an award was against the weight of the evidence. We affirm the judgment of the trial court.

Our review of the trial court’s grant of grandparent visitation is pursuant to the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Corley v. Corley, 128 S.W.3d 521, 524 (Mo.App.2003). “The trial court’s judgment will be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. “We grant deference to the trial court’s factual determinations, but do not defer to the lower court on questions regarding the declaration or application of the law.” Tompkins v. Ford, 135 S.W.3d 508, 509 (Mo.App.2004). “Much deference is given to a trial court’s ability to determine witness credibility.” In re G.P.C., 28 S.W.3d 357, 366 (Mo.App.2000). “A trial court determines what portions of a witness’s testimony to believe or disbelieve.” Id. Absent an abuse of discretion, “[a]n appellate court defers to the trial court’s assessment of what serves the best interest of the child in matters pertaining to visitation rights.” Corley, 128 S.W.3d at 524. We will find an abuse of discretion “only when the trial court’s decision ‘is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” In re C.D.G., 108 S.W.3d 669, 674 (Mo.App.2002) (quoting Waisblum v. Waisblum, 968 S.W.2d 753, 755 (Mo.App.1998)).

In our review of Appellants’ first point of trial court error, we observe the record shows that in April of 2002, when Grandmother filed her petition in the present matter, section 452.402.1, RSMo 2000, set out, in pertinent part:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:
(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days[J

Thereafter, section 452.402.1, RSMo Cum. Supp.2002, became effective. It sets out that:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:
(4) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days. However, if the natural parents are legally married to each other and are living together with the child, a grandparent may not file for visitation pursuant to this subdivision.

In the present matter, it is undisputed that Ryne resides with Appellants, her “natural parents,” who “are legally married to each other and living together with [her].” § 452.402.1(4), RSMo Cum.Supp. 2002.

When faced with Appellants’ motion to dismiss Grandmother’s claim as to Ryne, the trial court found Grandmother’s cause of action was commenced under the version of section 452.402 in effect at the time she filed her petition for grandparent visitation and, as such, her cause of action was “fully saved and protected by [s]ections 1.170 and 1.180 ...” and was not subject to dismissal due to the 2002 statutory changes. The trial court noted in its judgment that:

[T]he 2002 amendment of [sjection 452.402 contains no explicit repeal of right accorded prior to the amendment, whereby [sjections 1.170 and 1,180 are presumed to be incorporated into the 2002 amendment. As such, [Grandmother’s] cause of action properly proceeds under the statute under which it was filed, and is protected from the subsequent [2002] amendment by the savings statute.

Appellants argue the trial court’s application of the savings statute in the present matter was inappropriate because the 2002 changes to section 452.402.1 were wholly procedural and section 1.180 specifically provides that “all proceedings had after the repeal becomes effective are governed by procedural rules and laws then in effect....” According to Appellants, the 2002 version was procedural in nature in that the changes “affected the timing of Grandmother’s action for visitation rights,” i.e., Grandmother had to wait until the natural parents were involved in dissolution proceedings or not otherwise living together before she petitioned for visitation rights.

Grandmother, on the other hand, asserts the 2002 version of section 452.402 was not procedural, but was, in fact, substantive because it “declares certain circumstances under which a grandparent may not file for visitation; ” accordingly, the savings statute was properly applied.

We agree with Grandmother. The distinction between substantive and procedural law is that substantive law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used to effect the suit. Wilkes v. Missouri Highway and Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988). Substantive statutes take away or impair vested rights acquired under existing law, or create a new obligation or impose a new duty. Id. In the present matter, section 452.402.1, RSMo Cum. Supp.2002, effectively cut off Grandmother’s right to sue and took away a right which she was granted under the 2000 version of that section, which was in effect at the time she filed her petition on April 15, 2002.

“Whenever the legislature repeals an existing statute, it is considered to have done so in contemplation of the general saving clauses above quoted; and unless the legislature specifically makes the repeal retroactive, it is presumed that those saving provisions are to be incorporated by reference with the same effect as if the repealing statute contained its own special saving clause.” Prot. Mut. Ins. Co. v. Kansas City, 551 S.W.2d 909, 912 (Mo.App.1977). As such, the amendment was substantive in nature and the savings statutes, sections 1.170 and 1.180, were properly applied by the trial court. Point I is denied.

Appellants’ second point on appeal asserts the trial court erred in finding that Appellants had unreasonably denied Grandmother visitation with the children for over ninety days. Specifically, Appellants maintain “there was no substantial evidence to support such a finding and the finding was against the weight of the evidence.”

As previously related, on April 15, 2002, Grandmother, who is the children’s maternal grandmother, filed a petition requesting grandparent visitation, alleging that Appellants had unreasonably denied her visitation with Hailli and Ryne since September 21, 2001. Based on her argument that she “and the children have a fully developed and long standing grandparent — grandchild relationship,” Grandmother requested that in the best interests of the children she should be granted “specific, defined and enforceable visitation rights” with both Hailli and Ryne.

At the hearing on the motion, Grandmother, a former nurse who resides sixty or seventy miles from Appellants, testified she was employed by the Missouri Department of Corrections as a dispatcher and jailer and also was attending the Missouri Sheriffs Academy in order to obtain her commission as a deputy sheriff. Grandmother related she is an insulin dependent diabetic and has knee problems which prevent her from climbing stairs. Grandmother testified that prior to Ryne’s birth, she spent a great deal of time with Hailli and “would see [Hailli] at least every weekend and have [Hailli] at least two weekends ... every month,” as well as babysitting for Hailli as Mother needed. She stated that she often took Hailli shopping, took her to the movies, took her out to eat, took her to ride bicycles, and took her swimming. It was not until Ryne was two years old that Appellants allowed her to go places with Grandmother or to spend the night at Grandmother’s house. Grandmother testified that she did not have to discipline the children “very often.” Grandmother characterized her relationship with the children as “a good loving relationship ... [t]hey expressed their love to [her] and [she] expressed [her] love to them.” Grandmother stated that she often sent the children “little ‘thinking about you’ ” cards in the mail.

According to Grandmother, she has not seen the children since September 5 or 6, 2001. On that date, Grandmother observed that Hailli’s face and head were red. As a result of a conversation with Hailli regarding the source of the injuries, Grandmother placed a hotline call to the Division of Family Services (“DFS”). Grandmother testified that she was scheduled to have the children for the weekend following the hotline call. When she called Mother, Mother “picked up the phone and started screaming and yelling at [her], ‘Don’t ever call here again,’ that nobody wanted to talk to [her] and that [Mother] would put a restraining order on [her] and [Grandmother] would never see nobody ever again, and [Mother] hung up.” Grandmother has not seen the children since that time and has had cards she sent to the children through the mail returned to her.

Grandmother admitted that when Ryne was four years old she allowed Ryne to give her an insulin shot, in case Grandmother “were ever [to] become sick or anything like that.” She went on to state that her diabetes affects her eyesight, but that she did not feel that it impaired her driving ability or other behavior.

Grandmother acknowledged she maintains a friendly relationship with a former inmate she met when she worked at the Missouri State Penitentiary. She stated she met Russell Cooper (“Cooper”) when she was working as a nurse and she acknowledged he was in prison at that time for “15 to 20” years for rape. According to Grandmother, one time Cooper spoke with Hailli on the telephone when he called Grandmother from prison, but that other than that, the children had no contact with him. Grandmother stated that she had never visited Cooper’s home, but that while he was incarcerated she and Hailli visited Cooper’s mother to discuss a reference letter Grandmother was writing on his behalf. Grandmother also admitted to carrying a loaded handgun in her purse on occasion, but she insisted it was only for when she was traveling “[l]ate nights on the road.... ”

Mother testified that she had no relationship with Grandmother as of the date of trial and that her relationship with her had always been “[v]ery bad....” According to Mother, Grandmother told her that she suffered frequent blackouts as a result of her diabetes, that her eye sight was bad, and that she would often be confused about her surroundings following a blackout. Mother also stated that the cessation of visitation was in part because Grandmother “was allowing overnight visits with [the] children to a convicted rapist’s home.”

Mother also testified the children typically came home dirty and unkempt from Grandmother’s house. She also related that Grandmother had attended only three activities in which Hailli participated and that she had never been to any of Ryne’s school functions or other activities. She also stated both girls had told her that Grandmother had told them to kill Mother with Windex, kill their pets, and “perform sexual acts” in order to get Appellants arrested.

Further, Mother stated that for the last five years Grandmother had “always” carried a loaded handgun in her purse and that her purse was “not secured. It was a danger to the children.” Mother admitted she halted Grandmother’s visitation with the children on September 6, 2001, based in part, on Grandmother’s hotline call. Mother also admitted she intercepted holiday cards that Grandmother mailed to the children and threw them away before the children could see them. According to Mother, the children are afraid of Grandmother and do not want to see her. Mother testified that she would be opposed to Grandmother having any type of visitation with the children and, if the trial court ordered visitation, she would not comply with the trial court’s order.

Father testified that he had a criminal record which included “one charge of felony burglary, one charge of felony stealing, and then there is a misdemeanor of passing a bad check.” Father did not believe the children were adversely affected by their lack of contact with Grandmother. He stated it was a couple of days after Grandmother made the DFS hotline call that he and Mother decided to terminate Grandmother’s visitation with the children. Father also admitted to removing mail from the mailbox sent by Grandmother to the children. Father stated that he was opposed to Grandmother having any type of visitation with the children.

Cheryl Ray (“Ray”), a DFS caseworker, stated she became involved with the family at issue after Grandmother's hotline call in September of 2001. She stated she investigated “some physical abuse by [Mother] on the girls and unsanitary living conditions.” Ray performed a home assessment and found the home to be sanitary. She reported that Hailli and Ryne “definitely showed a bond with [Mother];” that “[t]hey smiled at each other;” and, that “[t]hey hugged each other.” As a result, she determined that she had no concerns about the family at that time and found the hotline call to be unsubstantiated.

Ray also related that DFS received a second hotline call regarding the family in October of that same year. The hotline call was made by Mother and she alleged, inter alia, the girls had “disclosed to their great-grandmother about some of the things [Grandmother] had told them to do.” More specifically, the girls disclosed that Grandmother had “told them to give the cats pills or to strangle them, to put Windex and other cleaning chemicals in their mom and dad’s mouth to kill them, to break things so Mom and Dad would go to jail.” The day after the hotline call Ray interviewed both of the girls separately. Ultimately, Ray determined the hotline call was unsubstantiated.

Daniel Milzell (“Milzell”), the children’s guardian ad litem, recommended that “it would be in the best interest of the children to visit on a limited supervised basis with [Grandmother].” Mr. Milzell based this recommendation on his interviews with the children and all of the parties in this matter. He related that while the children had said that Grandmother told them to “put Windex in their mother’s mouth,” he, nevertheless, noted that based on the children’s ages “they have some credibility problems.”

In its “First Amended Judgment,” the trial court found “that serious and unnatural issues exist between [Mother] and [Grandmother] which transcend the question of grandparent visitation ...” and that “this relationship, or the lack thereof, is the direct cause of the termination by [Appellants] of all contact between the children and [Grandmother].” Acknowledging “the many salutary benefits of the grandparent — grandchild relationship,” the trial court found Appellants’ reasons for terminating visitation were not credible and that their refusal to allow Grandmother contact with both children was “unreasonable and [was] detrimental to the best interests of the children.” The trial court also set out that Appellants’ “stated reasons for termination of contact by [Grandmother] were pretextual. The primary factor was [Grandmother’s] hotline call and the highly negative feelings of [Mother] toward [Grandmother].”

Furthermore, the trial court ordered that Grandmother was permitted visitation with the children “on the first calendar Sunday of each calendar month from noon until 4:00 p.m.” as well as on “December 22, 23 or 24 annually from noon until 5:00 p.m.”

As previously set out, section 452.402 governs grandparent visitation rights. “Grandparents are members of the extended family and society recognizes the important relationship between children and grandparents. In furtherance of this goal, the legislature adopted [s]ection 452.402, which contemplates occasional, temporary visitation by grandparents when found to be in the best interests of the child.” Simpson v. Buck, 971 S.W.2d 856, 859 (Mo.App.1998); see also Herndon v. Tuhey, 857 S.W.2d 203, 209 (Mo. banc 1993). Section 452.402, provides, in part, “[t]he court shall determine if the visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair the child’s emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child.” § 452.402.2. “A trial court has broad discretion in determining what limitations and terms of grandparent visitation are appropriate in a particular case.” Corley, 128 S.W.3d at 524; Simpson, 971 S.W.2d at 859; Herndon, 857 S.W.2d. at 209. The proper standard for determining whether grandparent visitation should be ordered under section 452.402 is outlined in Barker v. Barker, 98 S.W.3d 532, 535-36 (Mo. banc 2003),

the trial court was required to consider the parents’ right to make decisions regarding their children’s upbringing, determine the reasonableness of those decisions, and then balance the interests of the parents, child, and grandparents in determining whether grandparent visitation should be ordered pursuant to section 452.402. Although parental decisions are given material weight, the trial court may determine the reasonableness of those decisions based on the evidence. The court is not required to accept blindly a parent’s reason for denying visitation.

The rights extended to grandparents, however, are not without limitation:

Because the legislature set ninety days as a precondition, this is an indication to the courts that visitation should not be excessive, should not be on a par with parental visitation in custody matters, and should not necessarily be commensurate with the contact between the grandparents and grandchild prior to the deterioration of relations between the parties.

Herndon, 857 S.W.2d at 210.

Here, as in Barker, the trial court found that Appellants’ “stated reasons for termination of contact ... were pretextual. The primary factor was [Grandmother’s] hotline call and the highly negative feelings of [Mother] toward [Grandmother].” See Barker, 98 S.W.3d at 535. The trial court went on to state that even though Mother testified that Grandmother was “a reckless and dangerous person and should not be around children,” Mother “did not restrict or limit [Grandmother’s] visitation until she learned of the hotline call in early September, 2001, after which she has refused to permit any contact between [Grandmother] and the children.” Further, the trial court detailed testimony from Father that “he had not heard allegations of abuse or neglect of the children by [Grandmother] until a month after he terminated visitation.” The trial court’s ruling is “not a failure to give proper deference to the parents’ wishes, but rather a finding that the parents did not honestly believe that restricted visitation was necessary because they did not impose such restrictions before the ...” 2001 hotline call which precipitated their denial of visitation. Barker, 98 S.W.3d at 536. “Where, as here, the trial court determines that the parents’ explanation is not credible, the court may find the visitation denial unreasonable and grant grandparent visitation rights.” Id. The trial court’s findings are supported by the evidence. Point II is denied.

The judgment of the trial court is affirmed.

SHRUM, P.J., and BATES, C.J., concur.

      . Mother’s oldest child, Hailli, was bom on June 8, 1995. Her father, Todd Eric Schle-gel, did not participate in the trial in this matter nor in this appeal. Hailli lives with Appellants in the family home along with Ryne Myers ("Ryne”), born August 5, 1997, the natural daughter of both Appellants. Unless otherwise stated, all statutory references are to RSMo 2000. All Rule references are to Missouri Court Rules (2004).

      . Murphy interpreted what is now Rule 84.13(d).

      . Although the changes to section 452.402 which took effect in 2002 are termed to be an "amendment," the statute was indeed repealed and replaced with the current version of that section. See Ninety-First General Assembly, Second Regular Session, Session Laws 2002, S.B. Nos. 923, 828, 876, 694 & 736, p. 903.

      . Section 1.170 provides
      The repeal of any statutory provision does not affect any act done or right accrued or established in any proceeding, suit or prosecution had or commenced in any civil case previous to the time when the repeal takes effect; but every such act, right and proceeding remains as valid and effectual as if the provisions so repealed had remained in force.
      Section 1.180 provides
      No action or plea pending at the time any statutory provisions are repealed shall be affected by the repeal; but the same shall proceed, in all respects, as if the statutory provisions had not been repealed, except that all proceedings had after the repeal becomes effective are governed by procedural rules and laws then in effect, insofar as they are applicable.

      . We note that DFS is now known as the Division of Children's Services of the Department of Social Services.

      . Specifically, the hotline call reported "[t]hat the house was unsanitary, there [was] cat feces on the floor, there was all kinds of junk on the floor, that there was a strong odor, that [Mother] had pulled the girls' hair, drug them by their hair.”

      . The trial court also ordered that [Grandmother] have no contact with Russell Cooper during any visitation period with the children; that [Grandmother], when transporting the children, observe all state and local laws providing for child restrains [sic] and seat belting of the children; that [Grandmother] not allow the children access to any medication other than that prescribed by the children’s physician; that all firearms in [Grandmother’s] possession, be they handgun or long gun, be unloaded and kept under lock when children are in her presence; that [Grandmother] not discuss with the children any of their parents in negative or disparaging terms; and that [Grandmother] shall not administer any corporal punishment in the discipline of the children.


text:
    Scott DENGLER, Claimant/Appellant, v. JOHN FABICK TRACTOR COMPANY, Employer/Respondent.
    No. ED 85925.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Burton H. Shostak; Catherine R. Grant-ham, Moline, Shostak & Mehan, LLC, St. Louis, MO, for appellant.
    John P. Kafoury; Lisa K. Scanlan, Holt-kamp, Liese, Childress & Schultz, P.C., St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Scott Dengler (Claimant) appeals from the final award of the Labor and Industrial Relations Commission (Commission) affirming the award of the administrative law judge and finding: 1) Claimant permanently partially disabled to a degree of thirty-five percent of the body as a whole with reference to the chest, thoracic area, and abdomen; and 2) John Fabick Tractor Co. (Employer) liable for Claimant’s future medical care and permanent partial disability benefits. We affirm the award of the Commission.

We have reviewed the briefs of the parties and the record on appeal. The Corn-mission’s award is supported by sufficient and competent evidence in the record as a whole. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth our reasons for the order affirming the Commission’s award pursuant to Rule 84.16(b).

      . Employer's motion for attorney’s fees and costs is denied.


text:
    Donald BRASLOFF, Plaintiff/Appellant, v. Paul BEHRENS, Defendant/Respondent.
    No. ED 85855.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Natalia McKinstry, St. Louis, MO, for appellant.
    Matthew J. Sauter, Sauter Sullivan & Evans LLC; St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Donald Brasloff (Plaintiff) appeals from the trial court’s order and judgment granting Paul Behrens’ (Defendant) Motion for Summary Judgment (summary judgment) as to Count TV and Count Y of Plaintiffs petition in favor of Defendant and rendering all other pending motions moot. We affirm the trial court’s judgment.

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


text:
    Timothy WEBSTER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85647.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 27, 2005.
    Scott Thompson, St. Louis, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

The state charged Timothy Webster (“Defendant”) with Stealing, third offense, in the Circuit Court for St. Louis County. Defendant pled guilty on October 24, 2002, and the Honorable John A. Ross placed Defendant on probation with a five-year suspended sentence. On October 9, 2003, the court revoked Defendant’s probation and executed the five-year sentence it had previously imposed. Defendant filed a pro se motion for post-conviction relief under Rule 24.035 and post-conviction counsel was appointed. The motion court denied post-conviction relief without a hearing on November 10, 2004. Defendant appealed.

In his first point, Defendant contends that the motion court erred when it denied his postconviction motion without a hearing when Defendant alleged facts that sentencing counsel was ineffective for failing to advocate for re-sentencing under a new statutory scheme that was recently instituted. Second, he claims that the motion court erred when it denied his post-conviction motion without a hearing when Defendant alleged facts that plea counsel was ineffective for failing to litigate the unconstitutionality, by reason of double jeopardy, of Defendant’s arrest and prosecution for Stealing, third offense. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25.

      . All rule references are to Mo. Rules Civ. Pro.2004 unless otherwise indicated.