author: EDWIN H. SMITH, Chief Judge.

text:
    Samuel W. SCRUGGS, Respondent, v. Cynthia D. SCRUGGS, Appellant.
    No. WD 62773.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    Rehearing Denied May 31, 2005.

      Debra Lynn Moore, Independence, MO, for Appellant.
    Regina Keelan Bass, Kansas City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

Cynthia Scruggs appeals the judgment of the Circuit Court of Jackson County dissolving her marriage to the respondent, Samuel Scruggs, with respect to its orders: (1) emancipating the parties’ minor child, Melissa Scruggs; (2) denying the appellant’s request for maintenance; and (3) dividing the marital property of the parties.

In Point I, the appellant claims that the trial court erred in declaring that the parties’ minor child, Melissa, was emancipated because that issue was not before the court to decide, and even if it had been, the record did not support the court’s declaration. In Points II, III, and IV, she claims that the trial court erred in denying her request for maintenance. In Point V, she claims that the trial court erred “in not awarding [her] equity in the [marital] home” because in awarding the home to the respondent, the trial court failed to consider her economic circumstances, as required by § 452.330.1(3).

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

Facts

The parties were married on May 1, 1984, in Crestwood, Missouri, and separated on March 14, 2001. Four children were born of the marriage: Melissa Scruggs, born October 20, 1985; Justin Scruggs, born January 20, 1987; Michael Scruggs, born June 19, 1989; and Theresa Scruggs, born February 3,1992.

On April 3, 2001, the respondent filed a petition for dissolution of marriage in the Circuit Court of Jackson County. The appellant filed her answer and cross-petition on May 17, 2001. Both parties sought joint legal and sole physical custody of the children, and the appellant sought maintenance from the respondent.

On June 26-27, 2002, the respondent’s petition and the appellant’s cross-petition were taken up and heard. Other than the parties, the only witnesses to testify were Peggy Riggs and Stephanie Fama, former neighbors of the parties, who testified on behalf of the respondent.

On the issue of custody, the appellant’s evidence was that three of the parties’ four children suffered from physical, emotional, or mental disabilities. Specifically, there was evidence that Justin suffered from Asperger’s Syndrome, a behavioral disorder similar to autism. Neither party presented any evidence as to Melissa being emancipated.

On the issue of maintenance, the respondent adduced evidence that the appellant held several college degrees and was fully capable of supporting herself. The appellant’s evidence was that, although she had degrees in both Spanish and French, she had not utilized them during the marriage such that she was now only capable of obtaining minimum wage jobs.

At the close of all the evidence, the trial court took the case under advisement. On August 9, 2002, the court entered a temporary custody order. On December 20, 2002, the parties again appeared before the court. As to the purpose of this hearing, the trial court stated:

Okay. The Court has before it Cause No. 01FC203296. This is a review. The Court entered a temporary judgment, took the matter under advisement. We’ve had the trial on all issues, and essentially the court set the matter over for an update this morning from the Guardian ad Litem on how the children — children are doing since I entered my temporary order on — let me find my signature page — August 9th.

At the hearing, the children’s guardian ad litem, David Kimminau, made an oral report as to the progress of the parties’ minor children since the temporary order of custody was entered. In giving his report, Kimminau was not sworn as a witness. The parties did not present any evidence at the hearing.

On February 7, 2003, the trial court entered its judgment of dissolution. In its judgment, the court found that the parties’ oldest child, Melissa, was emancipated, and awarded the respondent “sole legal” custody of the three remaining children, with “joint physical custody” being awarded to the parties. The appellant was named the primary residential custodian of Justin, with the respondent being named the primary residential custodian of Michael and Theresa. The respondent was ordered to pay the appellant child support of $390 per month. In its Form 14 calculation of child support, the trial court found that the appellant had gross monthly income of $1,650 per month, a portion of which was imputed. The trial court denied the appellant’s request for maintenance, set off to the parties their separate property, and divided their marital property. On March 24, 2003, the trial court entered an amended judgment, which divided certain items of marital property left out of the court’s initial judgment.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in declaring that the parties’ minor child, Melissa, was emancipated because that issue was not before the court to decide, and even if it had been, the record did not support the court’s declaration. While we disagree that the issue was not before the court, we agree that it was not supported by the evidence.

The trial court’s judgment declaring a minor child to be emancipated mil be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declares or applies the law. Randolph v. Randolph, 8 S.W.3d 160, 162 (Mo.App.1999). In our review, we are to defer to the trial court’s determinations of credibility, viewing the evidence in the light most favorable to the court’s judgment and disregarding all contrary evidence and inferences. Id. at 162-63.

A. Was the issue of emancipation properly before the trial court for determination?

The appellant claims that the issue of emancipation was not before the trial court for its determination in that neither party asked the court to determine whether Melissa was emancipated. In support of her claim, the appellant cites In re Marriage of Heddy, 535 S.W.2d 276 (Mo.App.1976). Our reading of Heddy discloses that not only does it not support the appellant’s position, but that it implicitly supports the exact opposite.

In Heddy, as in this case, the trial court declared, sua sponte, in its dissolution judgment, that one of the parties’ minor children had been emancipated. Id. at 278. The mother appealed, claiming that the court erred in finding that the child in question was emancipated, and the appellate court reversed. Id. at 278-79. Unlike here, however, the mother in Heddy did not challenge whether it was proper for the trial court to rule, sua sponte, on the child’s emancipation. Rather, she attacked the court’s declaration of emancipation as not being supported by the record. However, in reviewing mother’s claim on the merits and determining that the record was insufficient to support the trial court’s declaration of emancipation, the appellate court implicitly recognized that the issue was before the court, despite not being expressly raised by the parties. See Brock v. Blackwood, 143 S.W.3d 47, 55 (Mo.App.2004) (explaining that an appellate court has a duty to determine its jurisdiction, sua sponte, and, if the trial court lacked jurisdiction to enter the ruling it did, the appellate court necessarily lacks jurisdiction to review the trial court’s ruling on the merits).

We cannot find any cases that directly discuss the issue of whether emancipation is before the trial court in every dissolution proceeding in determining its custody and child support orders, even though not raised by the parties. However, we believe, in reading and interpreting the statutes and cases concerning initial custody and child support determinations in dissolution proceedings, that it is.

Section 452.375 governs initial child custody determinations in dissolution proceedings. It provides, in pertinent part, that the “court shall determine custody in accordance with the best interests of the child.” § 452.375.2 (emphasis added). However, neither that section, nor any other section in the “Dissolution of Marriage Act,” §§ 452.075-.425, defines “child” for purposes of an initial custody determination, under § 452.375.2. In addition, § 452.445, “Definitions,” and § 452.450, “Jurisdiction,” of the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 452.440-.550, do not define “child.” Likewise, § 452.340, dealing with initial child support awards in dissolution proceedings, in authorizing such awards, does not define “child.” Section 452.340.3 does, however, provide for when the “obligation of a parent to make child support payments shall terminate.” Neither § 452.375, with respect to custody awards, nor § 452.340, with respect to child support awards, speaks expressly to the issue of emancipation in a dissolution proceeding.

Section 452.310, governing, inter alia, the contents of a petition for dissolution of marriage, makes numerous references to “children” and a “child” of the parties, without defining the terms. However, § 452.310.7, dealing with parenting plans, does provide, in pertinent part, that: “The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children. ...” (Emphasis added.) This would indicate, what we reasonably would assume in any event, that the requirement of § 452.375.2, that the trial court is to determine initial custody in a dissolution proceeding, is limited to minor children. And, in fact, in B.W. v. F.E.W., 562 S.W.2d 137, 139 (Mo.App.1978), the court construed that particular provision of § 452.375 as a “direction to make an award of custody of all minor children in dissolution cases.” (Emphasis added.) Similarly, in Miner v. Miner, 669 S.W.2d 628, 629 (Mo.App.1984), citing B.W. v. F.E.W., the court recognized that “it is mandatory for the trial court in a dissolution case ... to provide for the custody of a minor dependent child.” See also Rick v. Rich, 871 S.W.2d 618, 624 (Mo.App.1994). These cases, however, do not define a minor or minor dependent child.

In Biermann v. Biermann, 657 S.W.2d 65, 66-67 (Mo.App.1983), the court addressed the issue of the age of majority for purposes of child support. The appellant contended that the trial court erred in declaring that the age of majority for purposes of child support was 21, not 18. The appellant argued that, although Chapter 452 did not set the age of majority at age 18, the “legislative change in Chapter 475 — Guardianship reduced the age of majority to eighteen and ... the same age should control under Chapter 452 — Dissolution of Marriage.” Id. at 66. The court, recognizing that “[tjhere is no statutory definition of minor children in Chapter 452,” rejected the appellant’s argument and held that the common law applied such that the “age of majority for child support remain[ed] the date of emancipation or age twenty-one.” Id. at 67.

As we discuss, supra, Chapter 452 still does not expressly define what constitutes the age of majority for purposes of an initial order of support or custody in a dissolution proceeding. However, in 1988, § 452.340 was amended to include § 452.340.3, governing when the obligation of a parent to make child support payments terminates. In that regard, it provides, inter alia, that the obligation terminates when the child reaches age 18, unless § 452.340.4 or 452.340.5 applies. In addition, it provides that the obligation terminates when the child: dies; marries; enters active duty in the military; or becomes self-supporting, with consent. § 452.340.3. While these circumstances of termination are not expressly referred to in § 452.340.3 as constituting emancipation, as this court recognized in Dowell v. Dowell, 73 S.W.3d 709, 713 (Mo.App.2002), “[m]any of [the common law] concepts [of emancipation] were incorporated into the child support provisions of the Dissolution of Marriage Act, Chapter 452, with the Legislative amendment of § 452.340 in 1988, and further amendments in subsequent years,” citing, specifically, the provisions of § 452.340.3.

Under the common law, emancipation is defined as “the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” Randolph, 8 S.W.3d at 164; Heddy, 535 S.W.2d at 279. Emancipation can be accomplished in one of three ways: (1) by express parental consent; (2) by implied parental consent; or (3) by a change of the child’s status in the eyes of society. Randolph, 8 S.W.3d at 164. The third method is usually shown by the child entering the military or marriage; however, it can also be shown when a child, who is able to care for his or herself, voluntarily chooses to leave the parental home and attempts to “fight the battle of life on [his or her] own account.” Id.

At first blush, it is curious that subsection 3 would be included in § 452.340, dealing with initial child support orders, in that by its terms subsection 3 appears to speak to the termination of existing obligations to make child support payments. This fact was noted by this court in Randolph, 8 S.W.3d at 163. In Randolph, this court determined that § 452.340.3 did not apply to an initial order of custody in a dissolution proceeding because it expressly speaks of terminating an existing obligation to make child support payments. Id. Dismissing the application of that subsection, the Randolph court determined that the common law of emancipation should apply. While we cannot fault the court’s analysis, as far as it went, we believe that in interpreting § 452.340.3 as only applying to an existing obligation to make child support payments, the court failed to consider the bigger picture.

In interpreting statutes, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning. Heslop v. Sanderson, 123 S.W.3d 214, 222 (Mo.App.2003). If the intent of the legislature is clear and unambiguous, giving the language used its plain and ordinary meaning, then we do not resort to statutory construction. Id. In determining legislative intent, we are to read the statute as a whole and in pari materia with related sections. Id.

While § 452.340.3 does speak in terms of terminating an existing obligation to pay child support payments, suggesting that it does not apply to initial orders of child support in dissolution proceedings, it appears to us that the legislature intended that it would apply, nonetheless. In reading § 452.340 in its entirety, it is clear that it deals, inter alia, with initial orders of child support in dissolution proceedings, while § 452.370 deals with modification of such orders. The delineation of the circumstances of emancipation in § 452.340.3, dealing with initial orders of child support, rather than in § 452.370, dealing with modification of support orders, suggests that the legislature intended that § 452.340.3 apply to initial orders of child support in dissolution proceedings.

Further support for the proposition that § 452.340.3 applies to initial orders of child support can be found in the fact that it would be totally illogical to suggest that a child support obligation could be imposed, without any regard for the emancipation provisions of § 452.340.3, which obligation would then terminate immediately if one or more of the circumstances of § 452.340.3 was found. The legislature is presumed not to intend an absurd result. David Ranken, Jr. Technical Inst. v. Boykins, 816 S.W.2d 189, 192 (Mo. banc 1991) (overruled on other grounds in Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907 (Mo. banc 1997)). It makes more sense to find that if one or more of the emancipation provisions of § 452.340.3 applied, no order should be entered in the first instance such that this section would apply not only to terminate an existing obligation to make child support payments, but to preclude the entry of an initial order of support.

Having determined that emancipation or age of majority, for purposes of child support, is now age 18, not 21, unless the exceptions of §§ 452.340.4 or 452.340.5 apply, the question remains as to whether the age of majority is also 18 for purposes of child custody, under § 452.375.

As we noted, supra, § 452.375 does not define a “child” for purposes of that section, but case law has made it clear that a child for purposes of custody orders, under § 452.375, is a “minor dependent child.” Miner v. Miner, 669 S.W.2d at 629 (citing B.W. v. F.E.W., 562 S.W.2d at 139). This, of course, does not help in determining the age of majority for purposes of custody. Logically, however, one would be led to believe that the age of majority for purposes of custody should be the same age of majority for purposes of child support. This is so in that custody and child support orders in dissolution proceedings are interdependent — one cannot exist without the other. Monsees v. Monsees, 908 S.W.2d 812, 815 (Mo.App.1995); Rich, 871 S.W.2d at 625. The legislature is presumed to know the existing case law when it enacts a statute. Cook v. Newman, 142 S.W.3d 880, 888 (Mo.App.2004). Thus, in enacting § 452.340.3, incorporating the provisions of common law emancipation for purposes of child support, we must presume that the legislature intended for those provisions to not only apply to initial support orders in dissolution proceedings and modifications, but to initial custody orders in dissolution proceedings, under § 452.375, as well as modifications of those orders, under § 452.410, such that the age of majority for purposes of custody would be the same as for support.

Given the foregoing discussion concerning the age of majority for custody and support orders, and the law of emancipation, the trial court, in determining whether to enter initial custody and support orders in a dissolution proceeding, must necessarily determine the issue of emancipation, whether the issue is expressly raised by the parties or not. Hence, contrary to the appellant’s claim, the issue of emancipation was properly before the trial court for determination. The question then becomes whether the record was insufficient for the court to find that Melissa was emancipated, as the appellant claims.

B. Does the record support the trial court’s finding that Melissa was emancipated for purposes of custody and support?

As noted, supra, emancipation has been defined as “the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” Randolph, 8 S.W.3d at 164. “Emancipation is never presumed, and the burden is upon the party asserting it to show facts proving the emancipation.” Id. And, as we determined, swpra, pursuant to § 452.340.3, a child reaches the age of majority for purposes of child custody and support at age 18, unless § 452.340.4 or 452.340.5 applies. In. addition, § 452.340.3 provides that a child is emancipated if he marries; enters active duty in the military; or becomes self-supporting, provided that his parents have relinquished parental control by express or implied consent. With respect to being self supporting, a parent is under no obligation to support a child “who is physically and mentally able to take care of his or herself, has voluntarily abandoned the parental roof and turned his back to its protection and influence, and has gone out to fight the battle of life on his own account!.]” Brosius v. Barker, 154 Mo.App. 657,136 S.W. 18, 20 (1911).

The trial court declared Melissa to be emancipated because she was “employed full time, is beyond parental control and lives with her boyfriend!.]” On appeal, the respondent concedes that he did not present any evidence to support the court’s declaration of emancipation, but nonetheless contends that there is evidence in the record to support it. In that regard, he points to the unsworn oral report of David Kimminau, Melissa’s guardian ad litem.

As noted in the facts, on December 20, 2002, approximately five months after trial, the parties again appeared before the trial court. At the hearing, the guardian ad litem, David Kimminau, without being sworn as a witness, updated the court as to the progress of the parties’ minor children. In that regard, Kimminau advised the court that:

You placed Melissa in the primary physical custody of Sam after the last hearing, and so she hasn’t gotten any better. In fact, this would seem to indicate that she has regressed as opposed to either maintaining whatever level we had before or — or improving. She was living outside the home for a while with boyfriend and boyfriend’s parents, away from Mr. Scruggs or — or her mother. I think there’s a complete independence on her part where neither parent has any particular control when it comes to her. She’s going to do what she wants when she wants and how she wants, and that’s been evident even before any temporary orders or prior orders were entered by you, and that seems to be continuing to this point.

Initially, the question arises as to whether Kimminau’s report to the trial court was competent evidence such that the court could have considered it in making its determination that Melissa was emancipated. The record reveals that Kimminau was not sworn as a witness and was not subject to cross-examination by the appellant. As such, his report did not constitute evidence on which the trial court could rely in declaring that Melissa was emancipated. Dickerson v. Dickerson, 55 S.W.3d 867, 875 (Mo.App.2001).

Even if Kimminau’s report to the trial court could have been considered by it in declaring that Melissa was emancipated, the evidence was still insufficient to support its declaration. As we discuss, supra, in order to establish emancipation by demonstrating that the child is self-supporting, there must be evidence that the appellant and the respondent relinquished parental control by express or implied consent. § 452.340.3(4). There is nothing in the record from which the trial court could reasonably infer that Mellissa’s parents had consented, either expressly or impliedly, to relinquish parental control over her. Hence, in declaring that Melissa was emancipated and not subject to its custody and support orders, the trial court committed reversible error.

II.

In Points II-IV, the appellant claims that the trial court erred in denying her request for maintenance, based on its finding that she failed to meet the threshold test for an award of maintenance, under § 452.335.1, because the weight of the evidence presented at trial supported a contrary determination. Specifically, in Point II she claims that:

The trial court erred when it declined to award maintenance to [her], because RSMo. 452.335 states that the party seeking maintenance may be awarded maintenance if she lacks sufficient property, in addition to being unable to support herself through appropriate employment, and the weight of the evidence showed that [she] was not awarded sufficient property to meet her reasonable needs in that she was only awarded $75,000 of a retirement account that she could not touch for over 15 years and no other property, and her reasonable needs were calculated to be over $3,000 a month.

In Point III, she claims that:

The trial court erred when it declined to award maintenance to [her], because RSMo. 452.335 states that the trial court may award maintenance if the party seeking maintenance is unable to support herself through appropriate employment, in addition to lacking sufficient property, and the weight of the evidence showed that [she] is unable to support herself through appropriate employment in that she never worked outside the home in a professional, career capacity during the course of the marriage, has never utilized her dual degrees, has no special training or expertise, and was only making $7.00 an hour at the time of the dissolution.

And, in Point IV, she claims that:

The trial court erred in not awarding [her] maintenance because RSMo. 452.335 states that maintenance may be awarded if the party seeking maintenance is the custodian of a child whose condition makes it appropriate that [he or she] not seek employment outside the home, as is the case with [her] in that she was awarded custody of Justin Scruggs, who has been diagnosed with a little-known behavior disorder similar to autism.

In Point II, the appellant is attacking the trial court’s finding that she has sufficient property to provide for her reasonable needs; while in Point III, she is attacking the court’s finding that she is able to support herself through appropriate employment. Her attack in Point IV is an extension of her attack in Point III. In Point IV, she is simply arguing the trial court’s failure to consider a factor to be considered in determining whether she could support herself through appropriate employment.

Section 452.335.1 sets forth a two-part threshold test for determining the propriety of an award of maintenance. McIntosh v. McIntosh, 41 S.W.3d 60, 67 (Mo.App.2001). It reads:

1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian óf a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

§ 452.335.1. Hence, “maintenance can [only] be awarded to a spouse who: (1) lacks sufficient property to provide for his or her reasonable needs; and (2) is unable to support him or herself through appropriate employment!,]” taking into consideration the possibility that a spouse’s ability to work may be limited due to unique custodial arrangements. Greiner v. Greiner, 146 S.W.3d 442, 448 (Mo.App.2004) (emphasis added). Thus, the party seeking maintenance has the burden of establishing both statutory threshold requirements. Comninellis v. Comninellis, 147 S.W.3d 102,106 (Mo.App.2004).

Here, the trial court determined that the appellant failed to carry her burden as to both prongs of the threshold test, under § 452.335.1, specifically finding that “[b]oth parties are capable of supporting themselves [through appropriate employment] and both parties have sufficient property to support themselves.” Inasmuch as both prongs must be met before the trial court may entertain an award of maintenance, if the record supports the fact that: (1) the appellant has sufficient property to provide for her reasonable needs; or, (2) she can support herself through appropriate employment, taking into consideration the fact that she is Justin’s primary physical custodian, we must affirm the trial court’s denial of maintenance. Comninellis, 147 S.W.3d at 106.

In determining the correctness of a trial court’s ruling on a request for maintenance, the appellate court must defer to the trial court’s maintenance determination unless it is improper under the standard of Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976), or is an abuse of discretion. Hammer v. Hammer, 139 S.W.3d 239, 240 (Mo.App.2004). In its review, the appellate court views the evidence in the light most favorable to the court’s determination and disregarding all contrary evidence and inferences. Id.

In claiming in Points II, III and IV that the weight of the evidence supported a finding by the trial court that she satisfied both prongs of the threshold test for an award of maintenance, the appellant misunderstands our standard of review. Under the Murphy v. Carrón standard, we are to affirm the trial court’s determination that a party seeking maintenance failed to meet the threshold test for an award of maintenance, unless we find it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Hammer, 139 S.W.3d at 240. Under that standard, even if we were to find, as the appellant claims, that the weight of the evidence supported a determination that she met the threshold for an award of maintenance, she would not be entitled to the appellate relief she seeks. Herigon v. Herigon, 121 S.W.3d 562, 567 (Mo.App.2003); Dorman v. Dorman, 91 S.W.3d 167, 169 (Mo.App.2002). As this court explained in both Dorman and Heri-gon:

The Murphy v. Carrón standard ... does not stand for the proposition that if ‘substantial evidence’ and the “weight of the evidence’ could support an alternative judgment the judgment must be reversed. Instead, only when the judgment rendered is not supported by ‘substantial evidence’ or is ‘against the weight of the evidence’ must the judgment be reversed.

91 S.W.3d at 169, 121 S.W.3d at 567. Hence, we need not review to determine whether the appellant is correct that the weight of the evidence supports a determination by the trial court that she had met the threshold test for an award of maintenance.

Even assuming, arguendo, that the appellant misspoke in claiming as she did, and what she intended to claim was that the trial court’s denial of maintenance was against the weight of the evidence, her claim would still fail. As we noted, supra, the appellant had the burden of showing both prongs of the threshold test for maintenance: (1) that she lacks sufficient property to provide for her reasonable needs; and, (2) that she is unable to support herself through appropriate employment. Hence, if she failed in her burden as to either the property prong or the employment prong of the threshold test, we would be required to affirm the trial court’s denial of the appellant’s request for maintenance.

“Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d at 32. Given the evidence and all the reasonable inferences adduced from it, we cannot say that the trial court’s determination that the appellant failed to meet the threshold test for an award of maintenance, based on its finding that she was able to support herself through appropriate employment, was wrong.

In claiming that the trial court erred in finding that she had not carried her burden of showing that she is unable to support herself through appropriate employment, the appellant attacks the court’s finding that she had gross monthly income of $1,650, or $19,800 annually, as indicated in the court’s Form 14 child support calculation, which indicated that the amount included imputed income. She contends that the record does not justify an imputation of income, in any amount, and that the only evidence in the record as to her ability to support herself is the evidence that she earned $7.00 per hour as a part-time employee of the Gap.

In determining the reasonableness of a trial court’s findings with respect to maintenance, appellate courts often look to the court’s Form 14 child support calculations. Evans v. Evans, 45 S.W.3d 523, 531 (Mo.App.2001). By not challenging the imputation of income in the trial court’s Form 14 child support calculations, any claim of error as to the imputation of income for purposes of maintenance is waived. Id.; Schroeder v. Schroeder, 924 S.W.2d 22, 27 (Mo.App.1996). The appellant does not attack the trial court’s Form 14 child support calculation as to her gross monthly income, which included imputed income. Hence, she cannot challenge the trial court’s imputation of income for purposes of determining whether she was capable of supporting herself through appropriate employment. Schroeder, 924 S.W.2d at 27. As such, we find no merit in the appellant’s claim that the record did not support the trial court’s determination that she could support herself through appropriate employment. Hence, we must affirm the trial court’s judgment denying the appellant’s request for maintenance.

Point denied.

III.

In Point V, the appellant claims that the trial court erred “in not awarding [her] equity in the [marital] home” because in awarding the home to the respondent, the trial court failed to consider her economic circumstances as required by § 452.330.1(1). Specifically, she claims that she “was clearly in dire need of an award of property that she could use and consume now, not in the future. Her income and expenses necessitated this.”

A reviewing court must defer to the trial court’s marital property division unless it is improper under the standard of Murphy v. Carron, 536 S.W.2d at 32, or is an abuse of discretion. Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002). Appellate courts presume the division of property was correctly decided, and the party challenging the division bears the burden of overcoming that presumption. Id.

Section 452.330, which governs the division of property in a dissolution proceeding, sets forth a two-step process that is to be followed by the trial court: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property and debts in such proportions as the court deems just. Bauer v. Bauer, 38 S.W.3d 449, 458 (Mo.App.2001). Section 452.330.1 provides, in pertinent part, that in dividing the parties’ marital property, the trial court is required to consider all relevant factors, including:

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

The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property. Taylor v. Taylor, 25 S.W.3d 634, 640 (Mo.App.2000).

The division of marital property need not be equal, but must be fair and equitable given the circumstances of the case. Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App.2001). The fact that one party is awarded a higher percentage of marital assets does not per se constitute trial court error. Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo.App.2000) (quoting Kloekow v. Kloekow, 979 S.W.2d 482, 487 (Mo.App.1998)). In fact, this court routinely affirms highly disproportionate divisions of marital property. Id.

Here, the parties’ marital property consisted of two main assets: (1) the family home, valued at $165,500, with a debt of $79,016, resulting in $86,484 in equity; and (2) the respondent’s 401K plan, valued at $100,143. In addition, the parties owned two vehicles of near equal value, $2,709 in cash, and numerous household goods. Besides the debt on the home, the parties had additional marital debts, totaling $47,309.

In making its division, the trial court awarded the respondent the family home, along with the debt thereon; $25,143 of his 401K plan; one of the vehicles; $1,429.50 in cash; and approximately half of the household goods. The appellant was awarded the rest. As to the parties’ marital debt, other than the debt on the home, $27,309 was ordered paid by the respondent, with the appellant being ordered to pay the balance of $20,000 in debt.

An award of marital property “cannot be considered deficient for its failure to announce that it was made in accordance with the statutory factors.” Taylor, 25 S.W.3d at 640 (quoting Starrett v. Starred 703 S.W.2d 544, 548 (Mo.App.1985)). There is a presumption that the trial court considered all the factors of § 452.330 in making its property division and that its award was correct. Lance v. Lance, 979 S.W.2d 245, 249 (Mo.App.1998).

The sum and substance of the appellant’s argument in Point V is:

Appellant should have been awarded property that she could use for her daily living expenses now, not when she is 59⅜. Half of the equity in the home would have been a good start. That, coupled with substantial maintenance, and Appellant would not be enduring the hardships she is today. But the trial court did not do this. It gave her property that she cannot touch for another 16 years. And that is really about it, aside from enormous debts. This is a clear abuse of discretion and should not stand.

The appellant does not cite any authority that supports her claim and does not fully develop her argument. Eagle ex rel. Estate of Eagle v. Redmond, 80 S.W.3d 920, 926 (Mo.App.2002). Hence, she fails to rebut the presumption that the trial court, in dividing the marital property, considered all the factors of § 452.330, including factor (1), the economic circumstances of the parties, and that its division was correct.

Point denied.

Conclusion

The circuit court’s judgment of dissolution is affirmed in all respects, except its order declaring that Melissa was emancipated, which we reverse and remand to the court with directions to amend its child custody and support orders to include Melissa, including hearing additional evidence on that issue, if it deems it necessary.

ELLIS and HOWARD, JJ, concur.

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

      . Of course, logically the emancipation provisions of § 452.340.3 should apply to § 452.370 inasmuch as emancipation is a basis for modification of a child support order. In that regard, § 452.370.4 provides:
      Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child. The parent entitled to receive child support shall have the duty to notify the parent obligated to pay support of the child’s emancipation and failing to do so, the parent entitled to receive child support shall be liable to the parent obligated to pay support for child support paid following emancipation of a minor child, plus interest.
      (Emphasis added.) This section does not specify what constitutes emancipation, as does § 452.340.3. However, it would be totally illogical to suggest that the legislature intended that the circumstances of emancipation for purposes of modification of child support orders would be different than those for purposes of entering initial orders of child support. Hence, it appears that the legislature intended that in determining emancipation for purposes of § 452.370, the emancipation provisions of § 452.340.3 would apply.


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge.

license: Public Domain

text:
    Cid A. PRICE, Plaintiff-Appellant, v. Matthew VATTES, Defendant-Respondent.
    No. 26433.
    Missouri Court of Appeals, Southern District, Division One.
    April 25, 2005.

      John C. Banning, Springfield, for appellant.
    Joseph A. Bohrer, Springfield, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Cid A. Price (“Price”) brought suit against Matthew Vattes (“Vattes”) for the breach of an alleged oral partnership agreement. Price contended that the parties entered in the joint venture to create, operate, and ultimately sell a poultry plant, with the intent to build the operation to a point where it could be sold to a third party; he further contended that he was to receive 49% “of the profit.” Apparently, the “profit” refers to the money made if and when the business sold to a third party; Price contended the “real estate/poultry plant” was sold and his share of the profit amounted to $1,336,965.00. Vattes denied the existence of a partnership agreement and filed a motion for summary judgment, which was sustained by the trial court. This appeal by Price follows.

When reviewing an appeal from summary judgment, this Court will review the record in the light most favorable to the party against whom judgment was entered. We give the non-moving party the benefit of all reasonable inferences from the record. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The review of the grant of summary judgment is de novo. We do not need to defer to the trial court’s order granting summary judgment. The criterion on appeal for testing the propriety of summary judgment is the same as the standard that the trial court should have employed to determine whether to sustain the motion. Deer Run Property Owners Ass’n v. Bedell, 52 S.W.3d 14, 16 (Mo.App. S.D.2001).

A genuine issue of material facts exists where the record contains competent evidence that demonstrates two plausible, but contradictory, accounts of the essential fact necessary to movant’s recovery; the right to summary judgment is defeated if evidence in the record presents a genuine issue of material facts. Birdsong v. Christians, 6 S.W.3d 218, 222 (Mo.App. S.D.1999). It is whether these facts are disputed, not the truth of these facts, which matters. Id. at 224.

To be entitled to summary judgment under Rule 74.04, the movant must establish (1) that there is no genuine dispute as to the material facts on which he relied for summary judgment; and (2) that he is entitled to judgment as a matter of law based on these undisputed facts. If the movant is the defending party, as is the case here, he can establish a prima facie case for summary judgment by one or more of the following means: (1) showing facts that negate any one of the non-mov-ant’s essential facts; (2) showing that the non-movant has not been able to produce, and will not be able to produce, evidence sufficient to allow the court to find the existence of any one of the non-movant’s elements; or, (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support movant’s properly pleaded affirmative defense. Sloss v. Gerstner, 98 S.W.3d 893, 896 (Mo.App. W.D.2003).

We find that Price has been unable to produce, and will not be able to produce, evidence establishing that a partnership agreement existed between him and Vattes. A partnership is an association of two or more persons to carry on as co-owners in a business for profit. Section 358.060.1 ; Hillme v. Chastain, 75 S.W.3d 315, 317 (Mo.App. S.D.2002). The rules for-determining the existence of a partnership are set forth in section 358.070, which provides in pertinent part:

(1) Except as provided by section 358.160 persons who are not partners as to each other are not partners as to third persons;
(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do hot share any profits made by the use of the property;
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived;
(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
(a) As a debt by installments or otherwise;
(b) As wages of an employee or rent to a landlord....

The party asserting the existence of a partnership has the burden of proving a partnership. We never presume that a partnership exists and the burden is upon the party asserting its existence to establish all elements of a partnership by clear, cogent, and convincing evidence. Morrison v. Labor and Indus. Relations Com’n, 23 S.W.3d 902, 907-908 (Mo.App. W.D.2000). A partnership is a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business and to divide the profits and bear the loss in certain proportions. Hillme, 75 S.W.3d at 317. In his response to the summary judgment motion, Price did not provide evidence to show a prima facie case of a partnership between him and Vattes. To withstand a summary judgment motion against him, Price was required to provide some specificity as to the terms of the partnership, including the division of profits and losses. He did not do so.

Price claimed the partnership was formed in a telephone conversation sometime in July of 1987. The description of the phone call is as follows:

Q Tell us about this phone conversation.
A I had had calls prior to this particular date that I’m fixing to talk about. You know, one call I can remember, like February or March of '87, was, you know, “How does it feel to be vice-president of Mountain Valley Poultry?” I said, “Well, fine, I guess.”
He told me that Fabio Heredia, which was a partner, I guess, during that time, was on his way out; and Matt had mentioned to me, you know, starting a company. I told him, I said, “Matt, I don’t know anything about, you know, starting a company, what I need to do or anything.” And he let me know that he would, you know, talk me through this, what I needed to do and, you know, instructions.
Again, the date was July the 21st of '87. He had told me that what I need to do, if I had a lawyer, contact him and — you know, to set this corporation up. And I again told him, you know, I’m not sure how to do this.

Price further explained his definition of “partners” as being “two people involved in the same operation, company, whatever.” He continually claimed that “the partnership, the corporation, to me they’re one and the same.” When the question of partnership or no partnership arises, it must be answered from the facts presented; however, participation in the profits and losses of a business affords the usual, and perhaps the most convincing, test of the existence of an intention to form a partnership. Van Hoose v. Smith, 355 Mo. 799, 198 S.W.2d 23, 26-27 (1946). An agreement for such participation is not a conclusive test and does not absolutely constitute a partnership as a conclusion of law if other circumstances show that a partnership was not intended. Id. at 27. The intent of the parties is the primary factor for determining whether such a relationship exists. The level of intent necessary to find a partnership existed is not the intent to form a partnership, but the intent to enter into a relationship which constitutes a legal partnership. Hillme, 75 S.W.3d at 317.

Initially, Price was unclear as to who the partners were in the partnership. When asked who the partners were in the agreement, Price claimed himself, Vattes, “[a]nd probably Don Walker.” Although Price claimed Vattes was a 51% partner while Price was a 49% partner, he provided no partnership percentage for Don Walker. Clearly, an agreement for a partnership was not specific enough when a partner could not even identify who is in the partnership agreement and each partner’s percentage of ownership. See section 358.070.1 (mandating that persons who are not partners as to each other are not partners to third persons).

A further problem with the alleged partnership agreement is the “business” which was the subject of the partnership. It is undisputed that Price sued Vattes in his individual capacity yet Price claimed the only “partnership” asset was titled in a corporation called Mountain Valley Poultry, Inc., a corporation that was in existence prior to any claim of partnership. At the time that the partnership was supposedly formed, Vattes was not the sole shareholder of Mountain Valley Poultry, Inc.; he was only a 51% shareholder in the corporation. Price did not dispute that it was Mountain Valley Poultry, Inc., which sold the poultry processing plant in Crane, Missouri, and that the corporation owned the real estate upon which the plant was situated. The proceeds from the sale of the poultry plant were paid to Mountain Valley Poultry, Inc. Price did not dispute that he was never an officer, director, or shareholder of Mountain Valley Poultry, Inc; he did not explain by what authority Vattes could negotiate to sell assets of the corporation, Mountain Valley Poultry, Inc.

Wfiien asked whether the partnership had a name, Price responded “Price’s Best Foods,” which was a corporation that Price had previously formed. Price did not claim that Vattes had any shares of stock in that corporation. Price contended that he simply ran his own corporation -with the intent to further the “partnership” business, but just as Price was not involved in Mountain Valley Poultry, Inc.’s day-to-day operations, Vattes was not involved in the day-to-day operation of Price’s Best Foods. Furthermore, Price never filed a partnership tax return for the new “partnership” with Vattes although he did know what a partnership return was because he was involved in other partnerships which did file tax returns.

Price claimed, as to the participation in the sharing of profits, the agreement was to share the profits from the sale of a plant wherever it was located. Apparently, there was no limit in this partnership agreement as to a time frame when the assets might be sold and whether it included future purchases of land, machinery, etc., in the agreement to share the profits from the sale. Missouri courts have defined “profit” as the benefit of or the advantage remaining after all costs, charges, and expenses have been deducted from income. Binkley v. Palmer, 10 S.W.3d 166, 172 (Mo.App. E.D.1999). Gross revenues are not profits and an agreement to pay a percentage of gross revenues is not the sharing of profits. Id. Further, the courts have specifically held that receiving a share of gross revenues as payment for services rendered does not prove the existence of a partnership. Id. Although Price claimed in his petition that Vattes had previously paid him $63,012.60 in monthly payments, Price failed to develop that allegation in his response to the summary judgment motion. Thus, Price did not supply any evidence of the corporation profits ever being paid to him.

Furthermore, Price admitted that there was no discussion on the division of losses had there been a loss in their partnership business. When asked whether he was agreeable to paying 49% of the loss, Price testified, “I’m sure I would have been.” "When pressed whether he had an agreement to assume 49% of the loss, he said there was no agreement on the percentage of loss, that there was never a discussion about “loss or whatever.”

In essence, the sum of Price’s allegations are that, in one phone call, the majority shareholder of a corporation entered into an agreement to share with Price a 49% ownership in the assets (present and future) of the corporation already in existence, at some point in the future when it sold, without any commitment from Price as to the payment of any losses should the corporation lose money. Price may have intended to form some sort of partnership, but the relationship between Price and Vattes falls far short of a legal partnership. Price failed to provide in his response to the summary judgment motion sufficient issues of material fact that he and Vattes entered into a specific agreement to carry on as co-owners in a business for profit. See H2O’C Ltd. v. Brazos, 114 S.W.3d 397, 403-404 (Mo.App. W.D.2003) (finding that the failure to agree to share losses defeated the allegation of a partnership). Price failed to establish any issue concerning co-ownership of business assets, mutual rights of control of the business, an agreement in fact, and the right to share in profits and duty to share in losses; he did not even claim that he participated in the management of the poultry plant. Given Price’s definition of a partnership as being “two people involved in the same operation, company, whatever,” he did not provide facts to support his claim of a legal partnership as a matter of law. The trial court did not err in granting summary judgment to Vattes.

The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

      . All rule references are to Supreme Court Rules (2004), unless otherwise stated.

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


author: JEFFREY W. BATES, Chief Judge.

text:
    In the Interest of Clayton Dean MOREAU, a Minor: Robert Scott Royster, Petitioner-Appellant, v. Mahealani Moreau Royster, Respondent-Respondent, William and Marilyn Council, Intervenors-Respondents.
    No. 26073.
    Missouri Court of Appeals, Southern District, Division Two.
    April 29, 2005.

      Daniel R. Schramm, Chesterfield, MO, for Appellant.
    Richard Anthony Skouby, St. James, MO, for Respondents William and Marilyn Council.
    No brief filed by Respondent Mahealani Moreau Royster.
   JEFFREY W. BATES, Chief Judge.

William and Marilyn Council (“the Councils”) were granted letters of guardianship for their grandson, Clayton Dean Moreau (“C.D.”), by the probate division of the Circuit Court of Pulaski County, Missouri, in April 1999. The probate division issued these guardianship letters to the Councils in case no. CV596-150P (“Case 150P”) after a trial at which the court adjudged C.D.’s natural parents, Robert Royster (“Father”) and Mahealani Moreau Royster (“Mother”), unfit to act as the child’s guardians. Father appealed from this judgment. The Councils’ appointment as C.D.’s co-guardians was affirmed by this Court. In re Moreau, 18 S.W.3d 447 (Mo.App.2000).

Father’s marriage to Mother was dissolved in October 1999 in North Carolina. The North Carolina court did not enter any orders concerning C.D.’s custody or visitation because the court lacked jurisdiction to do so under the Uniform Child Custody Jurisdiction Act (“UCCJA”), §§ 452.440-.550.

In October 2001, Father filed a document entitled “Petition for Custody” in the Circuit Court of Pulaski County, Missouri. This action was assigned case no. CV501-1265DR (“Case 1265DR”). Father acknowledged in this petition that letters of guardianship for C.D. had been issued to the Councils in Case 150P and that Missouri was C.D.’s home state under the UCCJA. Mother was named as the respondent in the petition. In Mother’s answer, she admitted Case 150P was a guardianship case involving C.D. that was pending in the probate division of the Pulaski County Circuit Court. Mother also asserted the trial court lacked jurisdiction to adjudicate C.D.’s custody in Case 1265DR.

In March 2002, Father filed in Case 150P a third amended petition to terminate C.D.’s guardianship. Father alleged the guardianship was no longer necessary for any reason because Father “is a willing, able, and fit parent who can reassume custody of his son.” The Councils denied this allegation in their answer to the petition. Mother did not join in Father’s petition or otherwise seek to have the trial court reconsider or set aside its earlier adjudication that she was unfit to serve as C.D.’s guardian.

Case 150P and Case 1265DR were consolidated for the purpose of presenting evidence and assigned to the Honorable Trade Story for disposition. Trial commenced on July 9, 2003. At the beginning of this consolidated trial, Mother’s attorney again challenged the trial court’s jurisdiction to adjudicate the issue of C.D.’s custody in Case 1265DR and moved to dismiss this action. The trial court overruled the motion and declined to dismiss the case.

In January 2004, separate judgments were entered in each case. In Case 150P, the court entered a judgment denying Father’s petition to terminate the guardianship. The judge found Father was still unfit to be the minor’s guardian because he had not substantially changed his behavior or associations that previously caused him to be adjudged unfit. In Case 1265DR, the court awarded legal and physical custody of C.D. to the Councils.

Father appealed from both judgments. In appeal no. 26075, we affirmed the trial court’s judgment in Case 150P denying Father’s petition to terminate C.D.’s guardianship. In re Moreau, No. SD26075, — S.W.3d -, 2005 WL 957764 (Mo.App. filed April 27, 2005). In appeal no. 26073, Father challenges the trial court’s judgment granting third-party custody to the Councils in Case 1265DR.

This court’s appellate jurisdiction is derivative. Williams v. Kimes, 25 S.W.3d 150, 157 (Mo. banc 2000); Larimer v. Robertson, 800 S.W.2d 154, 156 (Mo.App.1990). If the trial court lacked jurisdiction over the case below, we lack jurisdiction over the appeal. Williams, 25 S.W.3d at 157. Appellate jurisdiction cannot be conferred by acquiescence, waiver or express consent. Larimer, 800 S.W.2d at 156. Therefore, we are required to examine, sua sponte, the issue of whether the trial court had jurisdiction to adjudicate C.D.’s custody in Case 1265DR. See State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 380 (Mo.App.1993). If the trial court lacked jurisdiction to do so, we do not have jurisdiction to address the merits of Father’s appeal. Henningsen v. Independent Petrochemical Corp., 875 S.W.2d 117, 118 (Mo.App.1994); Wandfluh v. Wandfluh, 716 S.W.2d 420, 422 (Mo.App.1986). For the reasons stated below, we are constrained to dismiss appeal no. 26073 for lack of jurisdiction. The cause is remanded with directions to vacate the judgment and to dismiss Case 1265DR for lack of jurisdiction.

The jurisdiction of a court to adjudicate a controversy rests on three essential elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; and (3) jurisdiction to render the particular judgment in the particular case. Missouri Soybean Ass’n v. Missouri Clean Water Comm’n, 102 S.W.3d 10, 21 (Mo. banc 2003); Jenkins v. Croft, 63 S.W.3d 710, 712 (Mo.App.2002). A judgment issued in excess of the trial court’s jurisdiction is void. State ex rel. Nixon v. Sweeney, 936 S.W.2d 239, 242 (Mo.App.1996); Travis v. Contico Int’l, Inc., 928 S.W.2d 367, 370 (Mo.App.1996). Therefore, we must examine, in turn, each element essential to the trial court’s exercise of jurisdiction in this case.

Subject matter jurisdiction refers to the court’s authority to hear and determine cases of the general class to which the proceeding in question belongs. Missouri Soybean Ass’n, 102 S.W.3d at 22; Bullmaster v. Krueger, 151 S.W.3d 380, 387 n. 4 (Mo.App.2004). In Missouri, the custody of a child may be adjudicated in at least five types of actions: (1) dissolution; (2) habeas corpus; (3) juvenile; (4) guardianship; and (5) paternity. See State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 180 (Mo. banc 1967); Chipman v. Counts, 104 S.W.3d 441, 446 (Mo.App.2003); McCoy v. Rivera, 926 S.W.2d 78, 80 (Mo.App.1996); § 210.841.3(2). The Circuit Court of Pulaski County, Missouri, is authorized by statute to hear and determine the general class of cases to which this proceeding belongs: the appropriate custody arrangement for a child after the dissolution of his or her parents’ marriage. See § 452.375; In re Marriage of Holden, 977 S.W.2d 951, 954 (Mo.App.1998). Therefore, the trial court had subject matter jurisdiction over Father’s petition for custody. See Matter of McGlaughlin, 885 S.W.2d 33, 34 (Mo.App.1994).

The trial court also had personal jurisdiction over the parties. By filing the petition for custody and requesting relief from the trial court, Father voluntarily submitted to its jurisdiction. See Bennett v. Shaul, 318 S.W.2d 307, 309 (Mo.1958); Manning v. Fedotin, 64 S.W.3d 841, 848 (Mo.App.2002). The same is true for the Councils because they voluntarily intervened in this action and sought third-party custody of C.D. There was personal jurisdiction over Mother because she did not raise the issue by answer or separate motion, and she voluntarily appeared and defended against Father’s petition for custody on the merits. See Rule 55.27(g); In re Adoption of J.P.S., 876 S.W.2d 762, 767 (Mo.App.1994).

It is the last element — jurisdiction to render the particular judgment in this particular case — which we find lacking. The probate division of the Pulaski Circuit Court has subject matter jurisdiction to award custody of a child to a third party, rather than the natural parent, via letters granted in an action to obtain guardianship of a minor child if the parent is adjudged unfit. See § 475.030.4(2); McGlaughlin, 885 S.W.2d at 34. A different division of that same circuit court would have subject matter jurisdiction to award custody of a child to a third party in a dissolution action. See Holden, 977 S.W.2d at 954; McGlaughlin, 885 S.W.2d at 34. Thus, the Circuit Court of Pulaski County would have concurrent jurisdiction over each type of case.

The problem here is that an attempt was made to litigate C.D.’s custody in both types of proceedings simultaneously. When Father filed his petition for custody of C.D. in the Pulaski County Circuit Court in- Case 1265DR, the Councils had already been issued letters of guardianship of C.D. by the probate division of that same court in Case 150P. Father sought to challenge the continuation of the guardianship by filing a petition to have it terminated. While this petition to terminate was pending in the guardianship action, Father also filed a different petition with a different division of the same court in which he sought to obtain custody of C.D. pursuant to the provisions of § 452.375. The earlier-filed guardianship proceeding in Case 150P, as well as the petition to terminate same, involved the same subject matter (custody of C.D.), parties (Father, Mother and the Councils) and issues (whether third-party custody was necessary because C.D.’s natural parents were unfit) as Father’s later-filed petition for custody in Case 1265DR. Mother timely raised the trial court’s lack of jurisdiction in Case 1265DR in her answer and again by way of an oral motion to dismiss at the commencement of the trial. The trial court overruled the motion and proceeded to grant third-party custody to the Councils. The trial court lacked jurisdiction to render that particular judgment in Case 1265DR.

By purporting to exercise jurisdiction over Father’s petition for custody, the trial court ran afoul of the “concurrent jurisdiction doctrine.” This doctrine provides that “if two courts can exercise jurisdiction over a particular person and subject, the court that first exercises such jurisdiction does so to the exclusion of subsequent intervention by the second court.” In re Care and Treatment of Lieurance, 130 S.W.3d 693, 697 (Mo.App.2004); see State ex rel. Standefer v. England, 328 S.W.2d 732, 735 (Mo.App.1959). This principle of law is also referred to as “abatement” and as “the pending action doctrine.” See, e.g., Patrick v. Koepke Const, Inc. v. Woodsage Const. Co., 119 S.W.3d 551, 555-56 (Mo.App.2003); Meyer v. Meyer, 21 S.W.3d 886, 889-90 (Mo.App.2000); Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 548 (Mo.App.1998). However denominated, an essential component of this doctrine is that the court in which the claim is first filed acquires exclusive jurisdiction over the matter; the second suit should be dismissed. Patrick, 119 S.W.3d at 556; Bel-lon Wrecking & Salvage Co., 983 S.W.2d at 548. To permit both suits to continue “would cause unseemly clashes of authority between courts of equal dignity and jurisdiction, and would permit one, in the midst of a lawful exercise of jurisdiction first obtained by the other, to step in and overthrow the proceedings thus rightfully instituted and lawfully carried out by the other. It seems clear this should not be allowed.... ” State ex rel. Coffield v. Buckner, 198 Mo.App. 230, 200 S.W. 94, 96 (1917).

This concurrent jurisdiction doctrine has been applied in a number of cases to preclude two courts from exercising jurisdiction at the same time over a case involving the custody of a child. See, e.g., State ex rel. Batch v. Dalton, 627 S.W.2d 295, 298 (Mo. banc 1982) (circuit court did not have jurisdiction over a later-filed adoption case because the minor child was subject to the continuing, exclusive jurisdiction of the juvenile court); State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558, 562 (1947) (first-filed dissolution action acquired exclusive jurisdiction over the issue of the minor child’s custody; a trial court purporting to exercise jurisdiction over the same child’s custody, via a writ of habeas corpus, exceeded its jurisdiction in the particular case, even though it may have had general jurisdiction of the subject matter and parties); B.M.P. v. G.H.P., 612 S.W.2d 843, 844-45 (Mo.App.1981) (where mother was found unfit and father was awarded custody of their minor child in a dissolution action, another division of the same circuit court lacked jurisdiction to adjudicate the child’s custody via a later-filed writ of habeas corpus); State ex rel. McCarty v. Kimberlin, 508 S.W.2d 196, 199-200 (Mo.App.1974) (the trial court in a habeas corpus proceeding did not have jurisdiction to adjudicate the custody of a minor child when the child’s grandmother had already been awarded custody by the juvenile division of that same court).

Based on our review of the foregoing authorities, we conclude the trial court lacked jurisdiction to grant third-party custody of C.D. to the Councils in Case 1265DR. Exclusive jurisdiction over C.D.’s custody rested with the probate division in Case 150P and continues until the guardianship is terminated. See Blackburn v. Mackey, 131 S.W.3d 392, 396-97 (Mo.App.2004). Accordingly, the judgment of January 23, 2004 was issued in excess of the trial court’s jurisdiction and is void. State ex rel. Nixon v. Sweeney, 936 S.W.2d 239, 242 (Mo.App.1996). Because the trial court lacked jurisdiction to enter the judgment, we also lack jurisdiction over Father’s appeal from the judgment. Henningsen v. Independent Petrochemical Corp., 875 S.W.2d 117, 118 (Mo.App.1994); Wandfluk v. Wandfluh, 716 S.W.2d 420, 422 (Mo.App.1986).

Father’s appeal is dismissed. The cause is remanded with directions to the trial court to vacate its judgment of January 23, 2004 and to dismiss the proceeding for lack of jurisdiction. See Outcom, Inc. v. City of Lake St. Louis, 996 S.W.2d 571, 576 (Mo.App.1999); Ray v. Lake Chevrolet-Oldsmobile, Inc., 714 S.W.2d 928, 931 (Mo.App.1986).

PARRISH, P.J., and SHRUM, J., Concur.

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

      . The Councils’ motion to intervene in this case was sustained by the trial court in February 2002.

      . All references to rules are to Missouri Court Rules (2005).


author: JOHN E. PARRISH, Presiding Judge.

text:
    KILLIAN CONSTRUCTION CO., INC., Respondent, v. FRONTIER TOWN-MISSOURI, INC., et al., Defendants, and E.T. Archer Corporation, Inc., Appellant.
    No. 26230.
    Missouri Court of Appeals, Southern District, Division Two.
    May 4, 2005.

      R. Clay Hagedorn, Starke Law Office, Blue Springs, for appellant.
    Richard E. Walters, Blackwell Sanders Peper Martin LLP, Springfield, MO, for respondent Killian Const. Co.
    Lee J. Viorel, Lowther Johnson, LLC, Springfield, MO, for respondent Dave Kolb Grading, Inc.
   JOHN E. PARRISH, Presiding Judge.

E.T. Archer Corporation, Inc., (Archer) appeals a summary judgment that established the priority of certain liens imposed against buildings and other improvements located on real estate owned by Frontier Town-Missouri, Inc. (Frontier). The part of the judgment appealed declared that hens of Killian Construction Company, Inc., (Killian) and Dave Kolb Grading, Inc., (Kolb) took priority over Archer’s lien except as to one acre. The trial court declared Archer’s lien “equal priority as Kil-lian and Kolb as to the one acre only.” This court affirms and, for reasons hereafter set forth, remands for further proceedings.

This case was previously before this court. See Space Planners Architects, Inc. v. Frontier Town-Missouri, Inc., 107 S.W.3d 898 (Mo.App.2003) (the first appeal). As applicable to this appeal, the first appeal resulted in the declaration that a judgment awarding liens to Archer, engineers, and Space Planners Architects, Inc., architects, was erroneously entered because the record did not substantiate that Archer or Space Planners Architects, Inc., were registered with the Missouri Board for Architects, Professional Engineers and Surveyors (the board). The first appeal explained:

[A] review of the record discloses they did not include all essential facts in either their pleadings or motions for summary judgment. Specifically, both [Space Planners Architects, Inc.] and [Archer] failed to plead, and failed to include in their summary judgment motion a claim that they were registered with [the board] ... and had the certificate of authority required by § 327.401.2.[] Without that essential element being pleaded and proven, neither ... showed themselves to be entitled to a judgment as a matter of law. Consequently, the trial court erred in sustaining their motions for summary judgment.

Id. at 403-04.

Following remand after the first appeal, Archer filed a further motion for summary judgment that included allegations and substantiation that Archer was certified as professional engineers to do business in Missouri when Archer commenced work on the project for Frontier. Thereafter, the trial court entered summary judgment for Archer that included imposition of a lien pursuant to § 429.015 on property owned by Frontier. The judgment declared “that Killian and Kolb have judgment against [Archer] limiting the priority of the [Archer] lien claim to one acre with equal priority as Killian and Kolb as to the one acre only ...” The trial court declared there was no just reason for delay in entry of judgment regarding the priority of liens as between Killian, Kolb, and Archer pursuant to Rule 74.01(b).

Appellate review of a summary judgment is essentially de novo. ITT Com mercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. E.O. Dorsch Electric Co. v. Plaza Const. Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment. Elliott v. Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367 S.W.2d 575, 578 (Mo.1963).

Id.

Archer raises one point on appeal. Archer contends the trial court erred in entering judgment limiting its lien to one acre. Archer argues it “is entitled to a one acre [sic] lien for each improvement which would result in a hen covering the entire property....”

Section 429.015.1 provides, as applicable here:

Every registered architect or corporation registered to practice architecture, every registered professional engineer or corporation registered to practice professional engineering, ... who does any landscape architectural, architectural, engineering or land surveying work upon or performs any landscape architectural, architectural, engineering or land surveying service directly connected with the erection or repair of any building or other improvement upon land under or by virtue of any contract with the owner or lessee thereof, or such owner’s or lessee’s agent, trustee, contractor or subcontractor, ..., upon complying with the provisions of this chapter, shall have for such person’s landscape architectural, architectural, engineering or land surveying work or service so done or performed, a lien upon the building or other improvements and upon the land belonging to the owner or lessee on which the building or improvements are situated, to the extent of one acre. If the building or other improvement is upon any lot of land in any town, city or village, then the lien shall be upon such building or other improvements, and the lot or land upon which the building or other improvements are situated, to secure the payment for the landscape architectural, architectural, engineering or land surveying work or service so done or performed. For purposes of this section, a corporation engaged in the practice of architecture, engineering, landscape architecture, or land surveying shall be deemed to be registered if the corporation itself is registered under the laws of this state to practice architecture, engineering or land surveying. [Emphasis added.]

Archer’s argument is simply that its work provided improvements throughout a 250-acre tract of land; that, therefore, the area on which the improvements were made was an area greater than a one-acre parcel on which the trial court would limit its lien. Archer argues that the limitation to one acre for its lien would grant protection for small projects but not large ones; that this is not what the legislature intended. The only case Archer cites in support of its claim is Campbell v. Rickert, 938 S.W.2d 282 (Mo.App.1997). The language in Campbell on which Archer relies is the statement that “[t]he mechanic’s lien law is remedial in nature and is to be liberally construed.” Id. at 286. However, as used by Archer, that statement is taken out of the context in which it was used in Camp bell and out of the context in which it was used in the case cited in Campbell, Breckenridge Material Co. v. Bymesville Const. Co., Inc., 842 S.W.2d 551, 552 (Mo.App.1992).

The statement in Campbell and in Breckenridge relates to the accuracy of the description used in a lien statement to identify the property on which a lien was claimed. Campbell states with respect to the required description, “Although a claimant must substantially comply with the statute in order to secure its benefits, the description of the property need not be letter perfect.... Rather, the description need only be sufficient to enable one familiar with the locality to identify the premises intended to be covered by the lien.” 938 S.W.2d at 286 (citations omitted). The substantial compliance to which Campbell alludes is the requirement that a “just and true account of the demand” required to be filed by a hen claimant with the circuit clerk includes “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” § 429.080. Campbell is of no assistance to Archer’s claim of error in this case.

“Mechanic’s liens were unknown at common law or in equity.” Bush Const. Machinery, Inc. v. Kansas City Factory Outlets, L.L.C., 81 S.W.3d 121, 123 (Mo.App.2002). They are creatures of statutes. Id. Accordingly, their application is derived from the language of applicable statutes. Here, § 429.015.1 limits an engineer’s lien derived from a contract to make improvements on land not within a municipality to a one-acre parcel. Archer’s point is denied.

There is a further matter that requires attention in this case. The trial court did not include a description of the one acre on which Archer was to have a hen. However, neither Killian nor Kolb appealed the determination that Archer was entitled to a hen on a one-acre parcel on which Archer made improvements. The judgment declaring that Archer was entitled to a hen was entered pursuant to Rule 74.01(b) upon a finding by the trial court that there was no just reason for delay in entering judgment. Thus, other issues remain for determination by the trial court.

The judgment that is the basis of this appeal, as entered, is not enforceable due to its lack of definiteness regarding a location of the one acre on which the trial court determined Archer was entitled to a hen. This case must, therefore, be remanded for determination of the location of any property, consistent with this opinion, on which Archer may claim a hen under provisions of § 429.015. The trial court may find Hill Behan Lumber Co. v. Dinan, 786 S.W.2d 904 (Mo.App.1990), and Paradise Homes, Inc. v. Helton, 631 S.W.2d 51 (Mo.App.1981), instructive regarding this issue.

The judgment is affirmed with respect to the determination that any hen to which Archer is entitled is limited to a one-acre parcel. The case is remanded for further proceedings consistent with this opinion.

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

      . This court’s opinion in the first appeal should be read in conjunction with this opinion for an understanding of the facts and background that preceded the two appeals. Facts not specifically related to the issues in this appeal are not restated in this opinion.

      . References to statutes are to RSMo 2000.


author: THOMAS H. NEWTON, Presiding Judge.

text:
    MISSOURI DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Alan E. DAMERON, Respondent.
    No. WD 64373.
    Missouri Court of Appeals, Western District.
    May 10, 2005.

      Theodore A. Bruce, Jefferson City, for Appellant.
    Alan E. Dameron, Bowling Green, pro se.
    Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ.
   THOMAS H. NEWTON, Presiding Judge.

The Missouri Department of Public Safety (Department) files this appeal from a circuit court judgment affirming the Administrative Hearing Commission’s (Commission) determination that respondent, Mr. Alan E. Dameron, who holds a peace officer certificate, is not subject to discipline under section 590.080.1(2) for committing a crime. At issue is whether the Commission erred in finding that there was no cause to discipline Mr. Dameron’s peace officer license. Because we find, as a matter of law, that there was cause to discipline Mr. Dameron’s license, we hereby reverse.

According to uncontested testimony, Mr. Dameron was charged with unlawful use of a weapon in November 2002 and pled guilty in February 2008, on his lawyer’s advice, to misdemeanor unlawful use of a weapon for possessing a weapon while intoxicated. Imposition of sentence was suspended, and Mr. Dameron was placed on supervised probation for two years.

Thereafter, the Department’s Director filed a Petition for Discipline of Peace Officer License, alleging that cause existed to take disciplinary action against Mr. Dameron’s license under section 590.080.1(2) and other sections no longer relevant to the case. Following an administrative hearing where the Director presented evidence of Mr. Dameron’s guilty plea and questioned Mr. Dameron about the circumstances giving rise to his plea, the Commission ruled that the Director had not carried his burden of proof and that Mr. Dameron was not subject to discipline. Specifically, the Commission found that Mr. Dameron “explained that he pled guilty on his lawyer’s advice and was not intoxicated when he handled the weapon. We believe him.” The Cole County Circuit Court affirmed the Commission’s decision, and this appeal followed. The Department argues that under the doctrine of issue preclusion, Mr. Dameron was barred from re-litigating the issue of his guilt.

In a contested administrative proceeding, we review the Commission’s decision and not the decision of the circuit court. Smarr v. Sports Enters., Inc., 849 S.W.2d 46, 47 (Mo.App. W.D.1993). The Commission’s decision must be upheld if it is supported by competent and substantial evidence, which must be viewed in the light most favorable to the Commission’s ruling. Id. We defer to the Commission’s fact-finding and credibility determinations. Id. Questions of law, however, are reserved for our independent judgment. City of Cabool v. Mo. State Bd. of Mediation, 689 S.W.2d 51, 54 (Mo. banc 1985).

Regardless of any issue preclusion principles, section 590.080.1(2) plainly provides that the director shall have cause to discipline any peace officer licensee who “[h]as committed any criminal offense, whether or not a criminal charge has been filed[.]” § 590.080.1(2). The Department has construed the phrase has “committed any criminal offense” to include “a person who has pleaded guilty to, been found guilty of, or been convicted of any criminal offense.” 11 C.S.R. 75-13.090(2)(A).

Mr. Dameron pled guilty to a criminal offense; his peace officer license is, accordingly, subject to discipline. We reverse the circuit court’s judgment and remand for further proceedings consistent with opinion.

HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ., concur.

      . All statutory references are to RSMo. (2000) or the Cumulative Supplement (2004) unless otherwise indicated.

      . The Department’s Director also sought to discipline Mr. Dameron for being unable to function because of alcohol impairment under section 590.080.1(1), but does not challenge the Commission's ruling finding insufficient evidence relating to this purported offense.


author: RONALD R. HOLLIGER, Judge.

text:
    Craig McINTOSH, Appellant, v. James LaBUNDY and Missouri Department of Corrections, Respondents.
    No. WD 64299.
    Missouri Court of Appeals, Western District.
    May 10, 2005.

      Thomas Pirmantgen, Jefferson City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ryan Bertels, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Craig McIntosh sought judicial review under RSMo 2000 section 536.150 (uncontested case review under the Missouri Administrative Procedure Act), of a decision by the Missouri Department of Corrections not to place him on a list of qualified therapists for sex offenders. He appeals from a decision dismissing his petition for failure to state a claim because he had no property or liberty interest that would entitle him to judicial review of the decision. We affirm.

Facts

According to-his petition McIntosh is a licensed clinical social worker who received his master’s degree in social work from New Mexico State University. McIntosh has education, experience, and expertise in the area of sex offender therapy.

Respondent Missouri Department of Corrections (“DOC”) is the agency of the State of Missouri generally charged with the responsibility of custody, treatment and supervision of criminal offenders. Respondent James LaBundy is an employee of the DOC and serves in the capacity of Chief of Sex Offender Services within the Division of Offender Rehabilitation Services. LaBundy oversees the specialized counseling provided to sex offenders while under probation or parole supervision. While sex offenders are under supervision, the DOC often requires them to receive therapy from private therapists who are deemed qualified to provide it. The DOC maintains a list of agencies and individuals who have been approved by the DOC to provide such services. The list is titled “Probation and Parole State Wide Approved Treatment Resources for Sex Offenders” (Approved Providers List). Therapy from any person who is not on the Approved Provider List will not satisfy the requirements imposed on sex offenders under supervision.

The DOC has established “Sex Offender Therapist Requirements” (the Requirements) for any sex offender therapist who wishes to appear on the Approved Providers List. McIntosh meets all the criteria from the Requirements. The Requirements do not state that they are exhaustive nor do they state that if one meets all the criteria he/she is guaranteed approval as a sex offender therapist. There are no other published criteria regarding the qualifications required for inclusion on the Approved Provider List.

On or about December 5, 2003, McIntosh made a verbal request of LaBundy to include him on the Approved Providers List which was immediately denied verbally by LaBundy. McIntosh then made a written request to LaBundy’s supervisor, Dr. Marian Atwell, Chief of Mental Health Services, Division of Offender Rehabilitation Services. Upon receiving the written request, Dr. Atwell telephoned McIntosh and informed him that LaBundy’s decision would stand and that no written response explaining the decision would be forthcoming because the evaluation procedure was “informal.”

On December 19, 2003, McIntosh made a written request to the Director of the DOC appealing LaBundy’s decision. That request was denied in writing. McIntosh then petitioned the Circuit Court of Cole County to review the DOC decision. The Court sustained the DOC’s motion to dismiss for failure to state a claim upon which relief can be granted.

Standard of Review

Our standard of review of the grant of a motion to dismiss is de novo. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004). “A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive.” Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001).

Point I

McIntosh brings his action under Section 536.150 of the Missouri Administrative Procedure Act and Article V, Section 18 of the Missouri Constitution as a noncontest-ed case challenge to an administrative action. McIntosh argues vehemently in Point I that he has standing to bring this claim because he meets the Requirements and the DOC’s refusal to add him to the list is an encroachment on his private right to make a living. The trial court, however, did not dismiss for lack of standing, it dismissed for failure to state a claim upon which relief can be granted. Reading his complaint liberally, as we must when reviewing a motion do dismiss, McIntosh alleges that the DOC’s decision infringes upon his right to make a living as a sex therapist and/or that he is entitled to the privilege of being placed upon the list because of his qualifications.

Article V, Section 18 of the Missouri Constitution provides for judicial review of actions by administrative agencies that affect private rights. MO. CONST, art. Y, Section 18. Section 536.150 of the Administrative Procedure and Review Act furthers that constitutional purpose and affords judicial review of a noncontested case when the agency action determines the “legal rights, duties or privileges of any person” and allows for the court to determine if the individual subject to the decision “was subject to such legal duty, or had such right, or was entitled to such privilege” and whether the agency decision was “unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involve[d] an abuse of discretion.” Section 536.150.1, RSMo 2000.

Thus, to make a prima facie case under Section 536.150, an individual must plead facts that, if true, would show that he has been denied some legal right or entitlement to a privilege by an agency decision that was “unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involve[d] an abuse of discretion.” Section 536.150.1, RSMo 2000. The issue of this case then becomes, under the facts plead in his petition, does McIntosh have a legal right to be placed on the approved providers list?

Property rights protected by due process are not created by the Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Such property interests and protected rights are created, and their dimensions defined, by existing rules or understandings that stem from an independent source such as state law. Id. In this context, McIntosh cannot claim a property right or entitlement unless it arises from an existing rule or understanding that stems from an independent source such as state law. Cole v. Conservation Comm’n, 884 S.W.2d 18, 20 (Mo.App.1994).

The application of these principles to this specific fact situation has not yet arisen in Missouri case law. The parties have not directed us to and we have not found identical cases in other jurisdictions. Without direction from the parties we have found cases in other jurisdictions which have some similarity to the situation at hand. In Bio Tech, Inc. v. Department of Natural Resources, 235 Mich.App. 77, 596 N.W.2d 633 (1999), the Michigan Court of Appeals reversed the grant of summary judgment to a company who sought to force the Michigan Department of Natural Resources to place them on a list of approved underground storage tank contractors. Id. at 636. The requirements for inclusion on the approved contractor list were defined by statute. Id. at 635. The plaintiff, Bio Tech, had been qualified and included on a previous list but had failed to meet later promulgated statutory requirements. Id. at 634-35. Bio Tech argued that, since it qualified for the original list, inclusion on the list of approved contractors was a license and could not be revoked without due process of law. Id. at 635. The Court disagreed, finding that the statutory language created no vested right and, thus, Bio Tech had no legally protected right to placement on the list. Id. at 636.

Similarly in Ruby-Collins, Inc. v. Cobb County, 237 Ga.App. 517, 515 S.E.2d 187 (1999), the Georgia Court of Appeals found that a contractor had no protected property interest in remaining on a pre-approved contractor list used for receiving bids on public works contracts. Id. at 189-90. The contractor argued that he had been “blacklist[ed]” from the list by the County without notice, explanation, or an opportunity to be heard. Id. at 188. Once again the deciding factor was whether state law created a vested right. The Court found that the Georgia statute governing how counties control the bidding process did not create any legitimate claim of an entitlement and, thus, the contractor had no vested property right to appear on the list. Id. at 189-90.

Finally, in Russell Pipe & Foundry Co. v. City of New York, No. 94 CIV. 8642(JFK), 1997 WL 80601 (S.D.N.Y.1997), the court granted summary judgment to the City on, among other things, plaintiffs claim that inclusion on an approved vendor list constituted a protected property right. Id. at *7-8. In so doing the court looked to the rules governing the approved vendor list and found no provision creating a property interest, such as a requirement to show just cause in order to keep an otherwise qualified vendor off the list. Id. at *8.

Other jurisdictions have also found that the exclusion of an otherwise qualified contractor from a list of approved contractors does not deprive that contractor of his right to earn a livelihood. See Vona v. Redevelopment Auth. of Delaware County, 109 Pa.Cmwlth. 156, 580 A.2d 1018 (1987); Noreika v. Jayaraj, No. CV 990152514S, 1999 WL 1268145 (Conn.Super.Ct. Dec. 10, 1999).

In order to prevail McIntosh must show that the agency action of refusing to place him upon the fist of approved providers treads upon a legally protected right or privilege. The DOC’s refusal to place McIntosh on the Approved Providers List does not deny him his right to work as a sex therapist in any general or particular sense, and he does not allege that he has been denied a license to practice in the field. McIntosh points to no rule, statute, or other authority creating a legal right or entitlement that he be placed on the list of approved providers. McIntosh points to no provision in state law or anywhere else that creates a property interest or privilege in placement on the approved list. In accordance with the above authorities, and in the face of little to no authority indicating otherwise, we find that McIntosh’s petition failed to state a legal claim for relief because he had no legal right or privilege to be included on the list of approved sex therapists.

Point denied.

Point II

Point II of McIntosh’s appeal asserts that the trial court erred in sustaining the DOC’s motion because the Requirements constitute an invalid agency rule not properly promulgated under Section 536.021. The DOC responds that the Requirements are not a rule as envisioned by Section 586.010(4) and, in the alternative, the Requirements are a statement of policy or internal governance and, thus, exempt from the definition of a rule.

Section 536.010(4) defines a rule as an “agency statement of general applicability that implements, interprets, or prescribes law or policy.” Section 536.010(4), RSMo 2000. Courts have interpreted this to mean that a rule is an “agency statement of policy or interpretation of law of future effect which acts on unnamed and unspecified persons or facts.” Mo. Nat’l. Educ. Ass’n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 287 (Mo.App.2000) (quoting Branson R-IV Sch. Dist. v. Labor & Indus. Relations Comm’n, 888 S.W.2d 717, 720 (Mo.App.1994)). Said yet another way by the Missouri Supreme Court, “ [rjulemaking involves the formulation of a policy or interpretation which the agency will apply in the future to all persons engaged in the regulated activity.” Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 23 (Mo. banc 2003) (quoting ARTHUR EARL BONFIELD, STATE ADMINISTRATIVE RULE MAKING, Section 3.3.1, at 76 (1986)). The Missouri Supreme Court has also limited the definition of a rule, however, to agency declarations that have a potential impact on the rights of some member of the public. Baugus v. Dir. of Revenue, 878 S.W.2d 39, 42 (Mo. banc 1994). Quoting Baugus: “Not every generally applicable statement or “announcement” of intent by a state agency is a rule. Implicit in the concept of the word “rule” is that the agency declaration has a potential, however slight, of impacting the substantive or procedural rights of some member of the public.” Id.

McIntosh spends the majority of Point II arguing that the Requirements do not qualify as one of the exceptions to the statutory definition of a rule from Section 536.010(4). We tend to agree that the Requirements do not qualify as a means of internal management of the Department of Corrections; however, that does not mean that the Requirements constitute a rule. Although his argument eventually returns to the germane question of Point II, that is, whether the agency declaration has the potential of impacting the rights of some member of the public, McIntosh fails to identify what legal rights are being affected by the Requirements. The discussion in Point I outlines why McIntosh has no private right to be included on the list even if he meets the Requirements; any “slight” impact on a,non-existent right is of little consequence to the disposition of this case.

McIntosh cites many cases in support of the policy behind engaging in notice and comment procedures when implementing a rule, but few indicating why the Requirements in the present case should constitute a rule. He cites Kansas Ass’n of Private Investigators v. Mulvihill, 35 S.W.3d 425 (Mo.App.2000), where the court found that raising license fees on private investigators required publication as a rule. Id. at 430. However, the present case involves neither a license to practice a profession nor a fee associated with obtaining a license.

McIntosh also cites other cases offering no support to his position like NME Hospitals, Inc. v. Department of Social Services, 850 S.W.2d 71 (Mo. banc 1993), where the Missouri Supreme Court found that a policy of disallowing Medicaid reimbursement of psychiatric services other than electroshock therapy was a rule. Id. at .74. The case at bar is clearly distinguishable because the agency action in NME Hospitals was a statewide policy shift affecting benefit payments to thousands of Medicaid participants. There are no benefits at stake here nor is there a policy involved that affects a large number of residents.

The Requirements at issue are not an “agency statement of general applicability that implements, interprets, or prescribes law or policy.” See Section 536.010(4), RSMo 2000. In fact, they are not being “applied” to anyone because the Requirements do not instruct McIntosh how to practice his trade nor do they regulate his professional behavior.

Point denied.

EDWIN H. SMITH, Chief Judge, and VICTOR C. HOWARD, Judge, concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Jerome D. MOSS, Appellant.
    No. WD 63972.
    Missouri Court of Appeals, Western District.
    May 10, 2005.

      Margaret Mueller Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LOWENSTEIN, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM:

Jerome Moss appeals his conviction and sentence for the class C felony of tampering in the first degree, in violation of section 569.080, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: PER CURIAM.

text:
    Jai SCOTT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64163.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Ruth Sanders, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Jai Scott appeals the denial of his Rule 29.15 motion for post-conviction relief. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    David STEWART, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64185.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Sarah W. Patel, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Mr. David Stewart appeals the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Walter J. RUSSELL, Appellant.
    No. WD 64298.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., ROBERT G. ULRICH, and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Walter Russell appeals his conviction for possession of a controlled substance in or about the premises of a correctional center, section 217.360, RSMo 2000, and sentence as a prior and persistent offender to fifteen years imprisonment. He claims that the trial court plainly erred in failing to grant a new trial based on a discovery violation by the State. The judgment of conviction is affirmed. Rule 30.25(b).