author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the Marriage of Douglas Van SHANNON and Tonya Norma Shannon. Douglas Van Shannon, Petitioner-Respondent, v. Tonya Norma Shannon, Respondent-Appellant.
    No. 26876.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 30, 2005.

      Susan S. Jensen, Springfield, for appellant.
    Roy E. Williams, Jr., West Plains, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

This appeal arises from the judgment entered on January 28, 2005, arising from the dissolution of Appellant (“Wife”) and Respondent (“Husband”), who were married on February 18, 1983. On January 23, 2003, just shy of their 20th anniversary, Husband and Wife separated; the dissolution was entered on January 28, 2005. Two children were born to the marriage, Nathaniel Douglas Shannon, 21 at the time of the judgment, and Joshua Aaron Shannon, 19 at the time of the judgment. Nathaniel Shannon was attending Ozark Technical College and Joshua Shannon was attending mechanic’s school in Nashville, Tennessee; both would be emancipated by July 2005.

By the end of their marriage, Husband was engaged in a profitable trucking business; Husband’s tax return for 2003 showed that the trucking business income was $202,821. The financial success allowed Husband and Wife to join with Husband’s two brothers and their spouses to purchase a livestock sale barn and build a home on 80 acres in Wright County, which they paid off within eleven years and was valued at $341,000. In addition to their marital home, Husband and Wife acquired another 76 acres in Wright County known as the “Reberry Place,” which had a value of $114,000. Husband and Wife rarely carried credit card debt and, if an item was charged on the credit card, it was usually paid off within two months. Husband was able to purchase a new car every two years and, at the time of the proceeding, owned over ten vehicles.

While Husband’s business enjoyed financial success, Wife remained in the family home and cared for Husband in every imaginable way. She ran the Husband’s bath water every night, washed his hair on many occasions, washed his back, clipped his toenails, and even filed his calluses. Further, Husband was “very particular” about the home, often criticizing Wife’s cleaning. Over the twenty years she was married to Husband, Wife was continually discouraged by Husband from working outside the home.

Husband was adamant that he wanted Wife at home and not employed outside the home. Wife was a certified EMT at the time of their marriage, but her license expired because she did not utilize it throughout the marriage. Husband did not feel it was appropriate for Wife to be out in the middle of the night. Until 1989, Wife’s social security statements show Wife earned no more than $18 per year. In fact, she was offered a permanent position working in a business office in and around the year 1989, but she declined the offer because Husband would not allow it and argued that he did not want to hire a babysitter. Because she could not accept the permanent position, Wife decided to work for the office in an on-call capacity when someone was needed to sit in the office and answer phones. In the next three years, Wife was only able to earn, in total, $967. Eventually, Wife even gave up that work because each time she worked, Husband became agitated and they argued.

Although Husband did not want Wife to be employed outside the home, he did, beginning in 1990, allow Wife to keep the books for his trucking business. Initially, Wife was not paid in this capacity, but then it was suggested to Husband that he put Wife on his payroll for tax purposes. In that way, it would appear that Husband’s company was paying an employee when the money paid to Wife was actually returned to the company after taxes were taken out. This practice did not continue because Husband’s mother complained that the practice built up Wife’s social security instead of Husband’s. Even though she was no longer reported on the payroll and her work as her Husband’s bookkeeper was not recognized, Wife continued keeping the books for Husband’s business even past the time she and Husband separated. When the sale barn was purchased, Wife ran an attached snack bar at the request of Husband and his brothers. Eventually, she took control of the snack bar and it was owned separately from the sale barn.

Husband testified that one to two years before the separation, he became involved in an affair with a married woman working at the sale barn. Both parties testified that the three years preceding the separation were filled with arguments. Wife testified that in those years Husband had become verbally abusive to her and their sons. Even with the increased agitation and withdrawal on the part of her Husband, Wife was determined to save the marriage. Wife testified that she was afraid Husband did not feel loved, so she tried to accompany Husband more on errands and bestow him with more affection, but this did not work because, as Wife later discovered, of Husband’s affair. Wife’s increased attention disrupted time he could spend with his girlfriend.

While no accurate account exists, Husband admitted to spending about $3,000 on his girlfriend. Testimony indicated that he bought his girlfriend jewelry, a motor for her car, phone cards, clothes, and periodically gave her money to cover bad checks or help with financial difficulty. In addition, the girlfriend accompanied Husband with his truck deliveries and they would often stay in hotels in the various states where he traveled. Even with Husband’s verbal abuse, detachment, and the separation, Wife was determined to make the marriage work. Wife unequivocally learned after the separation that Husband had been having an affair for at least a year yet she was still willing to try and resolve the issues in their relationship. In contrast, Husband continued with his girlfriend and gave up on the marriage.

Wife was in her early 40s at the time of separation, she had not had any type of real employment outside of the home in close to twenty years. Running the snack bar was the closest experience she had to a real job and the snack bar was sold a few months after she and Husband separated. Although she lacked experience, Wife immediately began working and still is working part-time for an insurance agent in Springfield, Missouri. Wife also began working in another office for a different insurance agent because she needed more hours. Wife’s duties include answering the phone, taking messages, quoting insurance, selling casualty and property insurance, endorsing policies, and revising insurance forms. Wife has taken an insurance exam so she can now be considered licensed support staff, but she earns $8.50 an hour and she is only able to work 32 hours a week. With her limited skills, Wife cannot currently find a job where she would earn more than $8.50 an hour. She plans to move to Springfield at which point she hopes to work full time since she will not have to commute such a long distance.

While the insurance exam she took allows her to sell casualty and property insurance, Wife is not considered an insurance agent. In order to be an insurance agent, Wife would need to obtain at least an associate college degree or the equivalent in experience and she would need to take another exam in order to obtain both life and health licenses. Even if Wife succeeded in obtaining an associate college degree and life and health licenses, which would take at the very least two years and most likely more, Wife would still need to be approved by an insurance company in order to become an agent. Wife has never attended college, and, given that she has to work, she testified that she would not be able to attend college on a full-time basis.

When questioned on the possibility of attending college, Wife answered, “It scares me, I’m a little old.” Wife testified she was dependent on Husband and so hopeful that she could reunite with Husband that she had not taken any classes since the separation because she felt, if and when she and Husband resolved their issues, Husband would not approve of her attending college. Additionally, Wife did not pursue her education during the separation because “she was in a state of limbo” not knowing what the outcome of the separation would be. Wife was frustrated in her situation because she had been out of the work force for so long and stated, “I haven’t been in the work force in twenty years, I am literally a 45 year-old woman who doesn’t know what she wants to do when she grows up because she’s never been allowed to do that.”

At trial, Philip Eldred, a vocational rehabilitation counselor hired by Husband, testified to his evaluation of Wife. He administered tests, which showed that Wife was at a high-school level in reading recognition and her spelling and arithmetic were only at the eighth-grade level. By looking to the Oasis Profile, Eldred testified that the salary range for Wife as an insurance agent in the Springfield, Missouri, area was $20,380 to $54,660 per year; however, Wife would only be able to earn on the high end of that range after obtaining an associate college degree or the equivalent in work experience. Eldred testified that Wife had the potential to be an insurance agent, but she still had licenses she would have to obtain before she would be considered an agent. Eldred agreed that in order to be more successful, additional education would be needed for Wife. While Eldred testified that Wife had the potential of earning $54,660 per year as an insurance agent, Wife countered that one of her current employers does not even make that amount, and he not only has a bachelor’s degree but he has also been in the insurance business much longer than Wife.

Husband’s business records indicate that 2002 was the lowest of five years with a gross income of $77,845; Husband’s taxable income per his 2002 personal tax return was $43,574. In 2003, Husband’s business, per the Schedule C, reflected a gross income of $202,821. Husband’s taxable income was $66,642 per his 2003 personal tax return; the court assessed the amount of $66,500 as Husband’s income. Husband’s records reflect that the business income for the first ten months of 2004 increased to $216,083.09, for a monthly average of $21,608. Wife’s records reflect payments to the business from just two sources to be $211,004 for the first nine months of 2004. Past register reports from Husband’s business show that, on average, business expenses accounted for 57% of the gross income. The debt on the tractor-trailer awarded to Husband is paid by the business. Husband had exclusive access to the business income other than the proceeds from the sale of cattle and the closing of the sale barn, which the parties split equally.

The court found in its judgment that Wife was in good health and capable of full-time employment, but her employment opportunities were limited and her earning capacity at the time of trial was only $1,521 per month. The court found that Wife actually earned only $1,141 per month and her yearly income would be no more than $18,000. The court determined that Wife’s reasonable monthly expenses were $5,047, so Wife has a monthly shortfall of $3,916. Wife’s expenses included the payment of utilities in the home amounting to $479 a month, maintenance for her car, life, health, homeowners, and automobile insurance, and real estate, as well as all personal expenses. Wife’s total average monthly expenses, as found by the court, were unchallenged by Husband. Wife lived in the marital home from the date of the separation with her son Nathaniel. Her other son, Joshua, was also living with her until he began his program in Nashville. Joshua spent only one night with Husband during the separation, and it appears Nathaniel has spent no substantial time with Husband.

Husband did not pay temporary maintenance to Wife during the separation, but after their separation, Wife had access to a joint account and withdrew $65,000. Wife claimed she took that money because she feared that Husband was planning to clean out the accounts and “run off’ with his girlfriend. Additionally, Wife received $19,290.57 of the proceeds from a calf and cattle sale, for a total of approximately $85,000 available to Wife. It was undisputed at trial that none of the $85,000 was in existence at the time of trial and there were no allegations that the funds were secreted or squandered.

Husband did not produce an expense statement at the time of the proceedings, but his only claimed debt is a balance due on a Kenworth tractor-trailer in the amount of $87,129, which is used for his business. Since the separation, Husband has paid for the sons’ car insurance, health insurance, and college expenses. Husband began paying child support in March of 2004 in the amount of $1,000 per month. Other than those payments, Husband did not produce any documentation of or indicate that he has any other substantial financial burdens.

The trial court found that Husband and Wife accumulated net assets of $698,889. In the initial division of marital assets, Husband received $533,821 in marital property and Wife received $165,068. Husband was granted a greater share in the marital assets because the court found that the “Reberry Place” was acquired late in the marriage as a gift from Husband’s parents. In order to equitably compensate Wife, Husband was required to pay Wife the amount of $134,000. In calculating the value of Wife’s marital property, the court included the $85,000 that Wife was forced to expend in the two years she was separated from Husband. Wife’s marital property included an Edward D. Jones account, four Prudential accounts, and a Farm Bureau account with a combined worth of $30,762. Three of those accounts were in the names of her three sons, and one other was in the name of Husband. The court further added in the value of Wife’s marital property three life insurance policies in the names of her three sons, for a total of $3,052. The majority of Wife’s property award was personal property items.

The court awarded Wife $1,000 per month in non-modifiable maintenance for two years, commencing on February 1, 2005. Husband was further ordered to pay $851 a month in child support to be paid directly to the children. The court also ordered Husband to pay Wife $7,500 for a portion of her $25,000 in attorneys’ fees.

Wife brings four points on appeal, all having to do with the award of maintenance. In her first three points, Wife claims the court abused its discretion, first by awarding an inadequate award of $1,000 per month; second, in limiting the maintenance award to two years without sufficient evidence of an ability to be self-supporting within two years; and, third, making the maintenance award non-modifiable. In point four, Wife challenges the denial of temporary maintenance during the pendency of the dissolution. We find merit to Wife’s first three contentions, deny her fourth point, and affirm the judgment as modified.

A trial court has broad discretion in determining the amount of maintenance to be paid and the duration of the maintenance award. Craig-Garner v. Garner, 77 S.W.3d 34, 39 (Mo.App. E.D.2002). If the trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable so as to shock the sense of justice and indicate a lack of careful deliberation, then the trial court has abused its discretion. Michel v. Michel, 142 S.W.3d 912, 917-18 (Mo.App. S.D.2004). Furthermore, there is a preference that maintenance awards be modifiable because the issues of maintenance in the future are uncertain because maintenance is based on need. Id. at 925; In re Marriage of Boston, 104 S.W.3d 825, 834 (Mo.App. S.D.2003); Sweet v. Sweet, 154 S.W.3d 499, 508 (Mo.App. W.D.2005). If future events that are relevant to the issue of maintenance are uncertain, then the award should be modifiable. Michel, 142 S.W.3d at 925. This preference for modifi-ability exists because an award of maintenance is founded on need, and therefore maintenance should extend so long as that need is present. Cates v. Cates, 819 S.W.2d 731, 735 (Mo. banc 1991). Because maintenance is based upon need, such future events will in fact generally be uncertain, thus stemming the preference for modifiable maintenance. In re Marriage of Clift, 108 S.W.3d 197, 202 (Mo.App. S.D.2003).

Points I, II, & III

Because the first three points are inter-connected and heavily dependent upon the facts of the case, we shall discuss them together. The trial court is allowed to order maintenance after it first determines that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. Section 452.335.1. The trial court made the express determination that Wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through appropriate employment. That finding is not challenged on appeal.

After the court determines that a spouse qualifies for maintenance, the trial court must determine a just amount and the duration of maintenance after considering the following factors:

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

Section 452.335.2. We look to each of the factors to assist in determining whether the court abused its discretion in its award of maintenance.

Factor 1

First, the court, in its division of property, awarded to Husband all of the real property, which was unencumbered, with a combined value of $455,000, as well as .virtually all of the automobiles and trucks, including the truck used for his business, and stock and securities worth over $20,000. The total value of his property was $533,821. The only debt was the business debt for the tractor-trailer. Wife was awarded one automobile, which had $16,343 debt on it; a time-share unit in Branson; several investment accounts worth $30,762, the majority of which were not in her name; three life insurance policies with the children as the insureds totaling $3,052; and her wedding rings with a value of $10,125.

Although listed as a cash asset on the property distribution, Wife does not have access to $85,000 of the $165,068 in property awarded to her because it was used to fund her living expenses during the pendency of the action. Even though the court specifically found Wife’s monthly expenses to be reasonable at $5,047 per month with a shortfall of $8,916 per month, the court must not have considered that Wife expended the $85,000 to offset her total expenses of $121,128 during the twenty-four month separation. Of course, the court was allowed to consider the use of marital assets during the pendency of the action, but

[Ajbsent restraint from a court, either spouse is entitled to spend marital assets for necessaries such as living expenses. ‘[F]unds used for reasonable living expenses are not to be included in the division of marital property.’ Petties v. Petties, 129 S.W.3d 901, 906[4] (Mo.App.2004). As spent funds no longer exist at the time of property distribution, a court cannot consider such in the division of marital property unless the court concludes that a spouse squandered the asset. Id. at 906.

Ashlock v. Ashlock, 154 S.W.3d 419, 422 (Mo.App. S.D.2004). What is important to our consideration of the available assets to meet Wife’s reasonable needs is that $85,000 of the property award is not available to meet her reasonable expenses.

The court recognized Wife had a shortfall of $3,916 per month, but claimed once Wife moved from the marital home her monthly expenses would be reduced. In fact, Wife’s monthly expenses as listed did not show a house payment because the Wife was living in the marital home, which had no mortgage. Her expenses are likely to increase with a house payment unless she uses all of the cash offset paid by Husband to buy a home. Moreover, Wife was not awarded any child support even though one child resided with her. Clearly, the first factor weighs heavily in favor of Wife for an increased award of maintenance.

Factor 2

The court awarded Wife maintenance for two years, presumably to acquire sufficient education or training to enable her to find appropriate employment; however, there was virtually no evidence that Wife would be able to find appropriate employment or acquire sufficient education or training within two years. The court correctly noted Wife’s educational deficiencies would limit her employment opportunities. Wife has a high-school education; however, the expert witness, hired by Husband, testified that though Wife could read at the high-school level, her spelling and arithmetic were at the eighth-grade level. Wife discovered that most insurance agents have an associate or bachelor’s college degree in business or equivalent work experience. The expert testified the salary range for Wife, if she became an insurance agent, ranged from $20,380 to $54,660 per year in the Springfield area; however, even the salary of Wife’s employer was not at the top end of the range.

The trial court imputed earnings to Wife of $1,521 per month, or $18,252 per year, based upon her hourly rate of $8.50 at forty hours per week. In fact, Wife does not work forty hours per week, and has never earned income at a forty-hour per week job; she is currently able to obtain part-time employment from two different employers, for a total of thirty-two hours per week. The limitation on her earnings was at Husband’s insistence as he felt she should be home with the children. At one point in the marriage, Wife, who did the company’s books at no pay, was put on Husband’s business payroll for tax purposes; however, the money was actually returned to the company. That practice was stopped because of concerns that Husband’s social security was not accumulating. Throughout the marriage, Wife’s average earnings per her social security statement were minimal and no earnings were reported during the years 1996-2001. In short, at forty-five years of age and being out of the workforce for twenty years, Wife has no viable work history.

Wife has the title of licensed sales associate in her current jobs, but she is not an insurance agent. In order to become an insurance agent, Wife would have to obtain additional licenses and a college education, which almost all agents have, in order to sell financial securities. Additionally, she would need to be approved by the insurance company prior to becoming an agent. It is pure speculation whether and when Wife will be able to become an insurance agent or become self-supporting. The second factor of section 452.335.2 weighs in favor of a modifiable award of maintenance for an unlimited duration.

Factor 3

The court must consider the earning capacity of each spouse. The court, as we noted under the second factor, specifically noted Wife’s limited education and inability to earn income. Additionally, it was admitted by both parties that Wife was a homemaker at the request of Husband and did not have substantial work history. It was also admitted by Husband that he did not participate in any household chores, that Wife virtually did any and all household and childcare chores. On the other hand, Husband used his twenty-plus years during the marriage to build and maintain his business acumen, free from the responsibilities of caring for the household. He had no health issues and was able to produce substantial income.

Regarding the duration of marriage factor, additional significance attaches thereto where one spouse, while taking care of the home and rearing the children born of the marriage, forgoes development of his or her career and the attendant advances and salary increases which could reasonably be expected during that period of time; and where the other spouse is free to advance his career or business and to enjoy the benefits therefrom.

L.A.L. v. L.L., 904 S.W.2d 50, 54 (Mo.App. E.D.1995) (citing Weiss v. Weiss, 702 S.W.2d 948, 956 (Mo.App. W.D.1986)). Factor three weighs in favor of an increased award of modifiable maintenance of unlimited duration.

Factor 4

The court specifically noted the relatively high standard of living established during the marriage. The parties paid in full for an expensive home eleven years after building it; Husband drove a new car every one to two years. The parties were able to invest in securities and life insurance policies. Although the court did not have to award maintenance in an amount comparable to the standard of living established during the marriage, the standard of living in a longer marriage can provide evidence of what the parties determine are their reasonable needs. In re Marriage of Torix, 863 S.W.2d 935, 941 (Mo.App. S.D.1993). An increased award is supported by the standard of living the parties enjoyed during the marriage.

Factor 5

As for the obligations and assets, including marital and separate property of each party, Husband was ordered to pay the indebtedness on his business tractor-trailer but had virtually no other liability. In fact, that indebtedness was subtracted from Husband’s gross income to arrive at the court’s designated net income assessed to Husband. Therefore, Husband had no indebtedness whereas Wife’s indebtedness included the payment on her car, plus credit card debt of over $11,000, and a shortfall of attorneys’ fees in the amount of at least $18,000. Husband has unencumbered assets of the two properties, as well as the only income-producing asset of the marriage. The fifth factor weighs in favor of Wife receiving an increased award of maintenance.

Factor 6

As to the duration of the marriage, this marriage lasted twenty-two years. It was a successful marriage until Husband chose to leave the marriage after conducting a two-year affair with a co-worker. The sixth factor weighs in favor of an increased award of maintenance for an unlimited duration.

Factor 7

Wife was forty-five years of age at the time of the trial. Though she had no substantial work history or education, she was in relatively good health with the exception of a lump in her breast, which her doctor was watching closely. The seventh factor justifies an award of modifiable maintenance in the event that Wife should become self-supporting.

Factor 8

The court must consider the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Husband did not submit an Income and Expense Statement, therefore the court did not consider Husband’s actual living expenses; evidence does not indicate that Husband had any expenses other than those ordered by the court. He was living with his mother during the separation, was awarded substantial assets, and has virtually no indebtedness. A review of the records certainly indicates that Husband has the ability to deduct the majority of his living expenses to his business. The trial court ascribed income to Husband in the amount of $66,500, based upon his 2003 personal income tax return, although his business income in 2003 was $202,821. Husband had available, at a minimum, $5,000 per month, which does not include any investment income, to meet his reasonable expenses.

The court-ordered payments included child support of $851 to be paid directly to the children, one hundred percent of the children’s college expenses, and one hundred percent of the health care costs. All of the children would be emancipated within six months to a year after the hearing. Furthermore, a review of Husband’s exhibit of net trucking income indicates he included one-time expenses for his attorney in the amount of $18,000. Husband had ample money from the property awarded to him as well as his current income to meet his regular expenses and pay additional maintenance.

Factors 9 & 10

Finally, as to the conduct of the parties, the court specifically found that Husband had an affair the last two years of the marriage. The evidence supports a finding that Husband provided gifts, trips and loans to his paramour. Interestingly, the court did not add any of the money spent on Husband’s girlfriend to Husband’s side of the ledger of the marital estate even though it did attribute money to Wife the money spent on living expenses. There was no evidence of any conduct on the part of Wife to justify a limited award; we can find no other reason for the limited award. The last factor supports a finding of an increased maintenance award.

We find Torix, 863 S.W.2d at 937, to be apropos. In a fact situation quite similar to this case, Wife was awarded marital assets in the amount of $348,713, and Husband was awarded net assets of $318,949, including the interest in three family businesses. Id. at 937. Wife, who had a GED, worked for a short time in the family business answering the phone, doing clerical work, and getting parts; however, for the majority of the time she was not employed outside the home during the twenty-four year marriage. Id. Husband claimed that, after paying all expenses, he only realized $49,000 in a six-month period. Id. at 940. Wife’s monthly expenses were approximately $2,800 per month. Id. at 940-941. Although the trial court awarded Wife $1,000 per month in maintenance, we reversed and the judgment was increased to modifiable maintenance of $2,000 per month. Id. at 941.

Likewise, in this case, we find the award of maintenance to be inadequate and an abuse of discretion. Based on all the factors pursuant to section 452.335.2, Wife demonstrated needs greater than the $1,000 per month and Husband had the ability to pay an increased award. We find the appropriate maintenance award to be $2,000 per month.

An appellate court, which believes the trial court has abused its discretion, may enter the judgment the trial court should have entered. Rule 84.14. See e.g., Lee v. Gornbein, 124 S.W.3d 52, 61 (Mo.App. W.D.2004); Bolch v. Bolch, 78 S.W.3d 769, 773 (Mo.App. W.D.2002); Crawford v. Crawford, 986 S.W.2d 525, 533 (Mo.App. W.D.1999); Creech v. Creech, 992 S.W.2d 226, 230-31 (Mo.App. E.D.1999); Clarke v. Clarke, 983 S.W.2d 192, 196 (Mo.App. E.D.1998); Friedman v. Friedman, 965 S.W.2d 319, 325 (Mo.App. E.D.1998); L.A.L., 904 S.W.2d at 55; In re Marriage of Myers, 879 S.W.2d 736, 738 (Mo.App. S.D.1994); Torix, 863 S.W.2d at 941. Accordingly, the award of maintenance is reversed and the judgment is modified to increase the maintenance award to a total of $2,000 per month, effective as of the date of the judgment, January 28, 2005.

Likewise, it was an abuse of discretion to make the award of maintenance non-modifiable and of only two years duration. Limited duration maintenance awards imply that the recipient will be self-supporting at the end of the designated time period. Hernandez v. Hernandez, 872 S.W.2d 161, 163 (Mo.App. W.D.1994). There was no evidence that Wife would be self-supporting at the end of two years. Wife had a limited education, she had virtually no paid work history, and she had not even enrolled in any classes to make her self-sufficient. The evidence was purely speculative whether Wife could become a licensed insurance agent and, if she could, what her potential income would be. It was also speculative whether Wife, who was forty-five years of age at the time of trial, could work a full-time job and complete a degree in the two years the court gave her to do just that. It was an abuse of discretion to limit maintenance to two years.

Furthermore, it was an abuse of discretion that the maintenance order be non-modifiable. As we have previously noted, we are unable to conclude that there are no circumstances under which a non-modifiable order would be authorized; however, we perceive that they would be exceedingly rare. Boston, 104 S.W.3d at 835; see also, Sweet, 154 S.W.3d at 508-09 (‘We can be practically certain that at some point in the future, the [maintenance amount] will be an inappropriate amount as to some party or both parties.”) We, therefore, reverse the two-year limitation and the designation that the maintenance award was non-modifiable. We order that the award be designated as modifiable and not be limited in duration.

Point IV

As noted herein, in the two years that the case was pending, Wife spent marital assets in the amount of $85,000 to meet her reasonable needs. Wife argues that she should have been awarded temporary maintenance because she should not have been forced to use property before being entitled to receive temporary maintenance. Again, we note that the trial court has broad discretion in determining issues regarding maintenance, including temporary maintenance. Tisone v. Tisone, 881 S.W.2d 647, 648 (Mo.App. E.D.1994).

We conclude the trial court did not err in failing to award Wife temporary maintenance in view of the fact that Wife had access to the use of property during the pendency of the action. See Ashlock, 154 S.W.3d at 422 (holding that it was not error to deny temporary maintenance when Wife had access to substantial funds to meet her needs). This is not to say that courts should force the parties to spend marital assets for necessary expenses; however, in this case, by the time the trial court had to decide the issue of temporary maintenance, the parties had chosen their course. Although Husband contends he refused to pay any temporary maintenance because Wife had the use of the marital assets and Wife contends she used the marital assets because Husband refused to pay any temporary child support or maintenance, the trial court was presented with a fait accompli. We do not find an abuse of discretion in the failure to award retroactive maintenance to the date of the filing of the motion.

The award of maintenance is reversed and the case remanded. The trial court is ordered to enter judgment awarding maintenance, effective January 28, 2005, in the amount of $2,000 per month, which may be modified by court order upon proper motion and evidence, but otherwise shall have no fixed termination date. In all other respects, the judgment is affirmed. The case is remanded with directions to the trial court to enter judgment consistent with this opinion.

PREWITT, P.J., PARRISH, J., concur.

      . Husband adopted Wife’s son, Matthew Shane Shannon, who was emancipated at the time of the hearing.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . Although Wife does not appeal the property distribution, we discussed the award of the $85,000 to Wife only as it relates to the issue of assets available to Wife to meet her current reasonable needs.

      . The parties separated in January, 2003, and the judgment was entered in January, 2005. We arrive at our total by multiplying twenty-four months by $5,047.

      .Husband had access to income of at least that amount, but the court did not attribute any income to him in the property distribution.

      . There was no evidence concerning the amount of those expenses and Husband agreed to pay them.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.


source: Caselaw Access Project

author: WILLIAM H. CRANDALL, Jr., Judge.

license: Public Domain

text:
    Carl E. SASSMANN, et al., Plaintiffs/Respondents, v. Marvin H. KAHLE, Defendant/Appellant.
    No. ED 75443.
    Missouri Court of Appeals, Eastern District, Union Division.
    Jan. 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    Application for Transfer Denied June 27, 2000.
    P. Daniel Billington <& Gordon Rolla Up-church, Union, for appellant.
    P. Dennis Barks, Hermon, for respondent.
   WILLIAM H. CRANDALL, Jr., Judge.

In this court-tried case involving real property, defendant, Marvin Kahle, appeals from the judgment entered for plaintiffs, Carl Sassmann, Mildred Sassmann, Denise Peth and Richard Peth. We dismiss the appeal.

Plaintiffs own real property in Gasco-nade County. Defendant owns property that is contiguous to plaintiffs’ property. A dispute arose regarding the location of the boundary between the properties, a strip of land between the properties and a fence. Plaintiffs brought an action to quiet title, for injunctive relief and for damages. Defendant answered and brought a counterclaim for declaratory judgment, to quiet title and for ejectment.

After the trial, the court entered judgment for plaintiffs. The court found:

that such portion of the real estate described in paragraphs 1 and 2 of Plaintiffs’ said Petition which lies immediately north of an established fence line has been recognized by Plaintiffs, their predecessors in title, and the predecessors in title to Defendant as the true common boundary line between the separate tracts now owned by Plaintiffs and Defendant, and that possession of said strip of real estate lying immediately north of said established fence line, and ranging between approximately 15 feet and 30 feet in width, has been under a claim of right by Plaintiffs and their predecessors in title, to the exclusion of all other persons, including Defendant; and further finds that the true boundary line between the respective tracts of real estate owned by Plaintiffs and Defendant is the fence line removed by Defendant and an extension of that line along the same compass bearing to the intersection thereof with the western boundary line of Plaintiffs’ real estate as described in the deeds....

The court also found that defendant removed the existing fence located on the strip of real property claimed and possessed by plaintiffs. The court further found that plaintiffs sustained damages resulting from defendant’s “repeated trespasses,” removal of the fence and mowing of grass and other vegetation on the property at issue. The court ordered title to the property be vested in plaintiffs such that the common boundary between the parties’ properties was the “fence line” removed by defendant. The court also stated:

in order to enable a full and sufficient legal description of said boundary line, Defendant is ordered to obtain a new survey of said original fence line and the extension thereof and to file with the Court an authenticated copy of the plat of such survey, plus a typed description sufficient for use in a supplemental judgment quieting title in Plaintiffs to be filed in this cause, within 60 days after entry of this judgment. The Court shall retain jurisdiction over this cause until such survey plat and description and supplemental judgment are so filed and approved by the Court.

Defendant appeals from this judgment.

A reviewing court has a duty to determine its jurisdiction sua sponte. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997); Cobble Trust v. Wilson, 928 S.W.2d 897, 898 (Mo.App. E.D.1996). The right to appeal is statutory, and an appeal may only be taken from a final judgment. Section 512.020 RSMo.1994; Cobble Trust, 928 S.W.2d at 898. Until there is a final judgment, this court lacks jurisdiction to consider the merits of an appeal. Cobble Trust, 928 S.W.2d at 898.

Under Rule 74.01(b), the trial court’s judgment is final for purposes of conferring appellate jurisdiction only if the judgment disposes of all .the disputed issues in the case and leaves nothing for future adjudication. Id. Accordingly, a judgment that requires external proof or another hearing to dispose of disputed issues involved in the litigation is not final for purposes of Rule 74.01(b). Id. This rule is particularly important for cases involving real property. Id.

Here, the court found that the true common boundary between the parties’ properties was the “fence line” removed by defendant. The court ordered defendant to obtain a new survey of the “fence line” for a supplemental judgment to quiet title to plaintiffs. The judgment therefore requires external proof, a survey, to dispose of a disputed issue in the case. Id. Furthermore, the survey could be such that future adjudication is not foreclosed. See Helgeson v. Ochs, 988 S.W.2d 545, 550 (Mo.App. S.D.1999). In quieting title, the court did describe the strip of land as lying north of the “fence line” with a width of fifteen to thirty feet. However, determination of the location of the original fence line was necessary for the judgment to quiet title. There was not a final appeal-able judgment without a legal description from the survey. Helgeson v. Ochs, 957 S.W.2d 486, 487 (MoApp. S.D.1997). The judgment was not final for purposes of appeal and this court lacks jurisdiction.

Appeal dismissed.

MARY RHODES RUSSELL, Chief Judge and RICHARD B. TEITELMAN, Judge, Concur.


author: JAMES R. DOWD, Judge.

text:
    Melinda TATE, Appellant, v. DEPARTMENT OF SOCIAL SERVICES, Respondent.
    No. ED 75314.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.

      Terry J. Flanagan, John W. Peel, St. Louis, MO, for appellant.
    David S. Durbin, Department of Social Services, Division of Legal Services, Jefferson City, MO, for respondent.
   OPINION

JAMES R. DOWD, Judge.

Appellant Melinda Tate appeals from a Circuit Court judgment affirming an administrative decision finding Tate recklessly abused and caused the death of an elderly resident at a nursing home and that Tate’s name should be placed on an Employee Disqualification List pursuant to RSMo. Section 660.315 (1994). We affirm.

FACTS

Appellant Melinda Tate, now Melinda Boggs (hereafter “Ms. Tate”) was employed as a certified medical technician at St. Sophia Geriatric Center (hereafter “St. Sophia”). Ms. Tate’s duties at St. Sophia included the care and feeding of the elderly residents. On October 13, 1994, at about 10:00 a.m., Ms. Tate fed Edna Weber, a ninety-four year old resident. Ms. Tate used a bulb-syringe to place a portion of Ensure, a thick liquid dietary supplement, into Ms. Weber’s mouth. Ms. Weber protested, saying “I can’t take anymore,” but Ms. Tate continued feeding her. After the feeding, Ms. Tate left for lunch.

Approximately fifteen minutes later, a nurse noticed Ms. Weber slumped over in her wheelchair. Ms. Weber was having trouble breathing and her lips were blue. The nurse and others attempted to suction fluid from Ms. Weber’s lungs to facilitate her breathing. The suctioning produced a liquid substance the nurses believed to be Ensure. About fifteen minutes later, Ms. Weber died. Her treating physician, Dr. Sosnoff, stated her cause of death was due to aspiration from pneumonia.

On October 24, 1994, a complaint was filed with the Missouri Department of Social Services, Division of Aging (hereafter “the Department”) alleging Ms. Tate had continued to feed Ms. Weber Ensure even after she had refused and indicated that she couldn’t swallow anymore. The Department investigated the complaint and concluded that Ms. Tate had force fed Ms. Weber and caused her death.

On January 13, 1995, the Department notified Ms. Tate of their findings and indicated that Ms. Tate’s name would be permanently pla^d on an Employee Disqualification List. The Employee Disqualification List is a record of the names of people who have been finally determined by the Department of Social Services to have recklessly, knowingly or purposely abused or neglected a resident while employed in any facility. The Employee Disqualification List, as required by Section 660.315, RSMo, is provided to other state departments upon request and to any person, corporation or association who: (1) Is licensed as an operator under chapter 198, RSMo; (2) Provides in-home services under contract with the department; (3) Employs nurses and nursing assistants for temporary or intermittent placement in health care facilities; (4) Is approved by the department to issue certificates for nursing assistants training; or (5) Is an entity licensed under chapter 197, RSMo.

Ms. Tate challenged the Department’s decision to place her name on the Employee Disqualification List and an administrative hearing was held on July 17, 1996. Ms. Tate was represented by counsel at the hearing and she was allowed to present evidence, call witnesses and to cross-examine the Department’s witnesses. Several witnesses testified on behalf of the Department. One witness testified that she saw Ms. Tate continue to feed Ms. Weber Ensure via a bulb syringe even after Ms. Weber protested, saying, “I can’t take anymore.” Other witnesses testified that, after they discovered Ms. Weber wasn’t breathing, they suctioned a fluid from Ms. Weber’s lungs which they believed to be Ensure. In addition, Dr. Mary Case testified that she exhumed Ms. Weber’s body, performed an autopsy and found material in Ms. Weber’s pulmonary airway. Dr. Case described the material blocking Ms. Weber’s airway as a thick pink liquid similar to the liquid found in her stomach. Dr. Case concluded that Ms. Weber died “as a result of aspiration of liquid food as a result of forced-feeding.” No witnesses testified on behalf of Ms. Tate.

During the course of the hearing, Ms. Tate submitted into the record a subpoena duces tecum, which had been duly authorized and served upon St. Sophia prior to the hearing. The subpoena requested, among other things, Dr. Sosnoffs notes about Edna Weber and various nurses notes. St. Sophia refused to turn the documents over to Ms. Tate, stating they believed the documents to be privileged and therefore not discoverable. Ms. Tate and the hearing officer agreed to leave the record open for a period of time to allow Ms. Tate’s counsel to seek enforcement of the subpoena in the Circuit Court. Ms. Tate’s counsel neither objected to this arrangement nor did she ever seek enforcement of the subpoena. The subpoena was never enforced.

On April 11, 1997, the Department issued a thirty-four page Decision and Order signed by the Director of the Division of Aging finding that Ms. Tate had recklessly abused an elderly resident of St. Sophia Geriatric Center and that Ms. Tate’s name should be placed on the Employee Disqualification List. On May 1, 1997, Ms. Tate filed a Petition for Review of Administrative Decision in the Circuit Court of St. Louis County. On April 16, 1998, Ms. Tate filed a Motion for an Evidentiary Hearing with the Circuit Court. On July 22,1998, the Circuit Court issued its Judgment and Order denying Ms. Tate an evi-dentiary hearing and affirming the Department’s decision. This appeal followed.

STANDARD OF REVIEW

This court reviews the decision of the administrative agency, and not that of the trial court. Missouri Ethics Com'n v. Thomas, 956 S.W.2d 456, 457 (Mo.App. W.D.1997). We must determine whether competent and substantial evidence supported the agency’s decision, the agency’s decision was arbitrary, capricious, or unreasonable, or whether the agency abused its discretion. Psychare Management, Inc. v. Dep’t of Social Services Div. of Medical Services, 980 S.W.2d 311, 312 (Mo. banc 1998). The evidence is considered in a light most favorable to the administrative agency’s finding, together with all favorable inferences which support it. State ex rel. Drury Displays, Inc. v. City of Olivette, 976 S.W.2d 634, 635 (Mo.App. E.D.1998). An Administrative law judge’s decision is presumed correct and the burden in challenging such a decision is heavy. State ex rel. Sure-Way Transp., Inc. v. Division of Transp. Dept. of Economic Development, State of Mo., 836 S.W.2d 23, 25 (Mo.App. W.D.1992). Where evidence could support a finding either way, an appellate court is bound to uphold the decision of the agency. Weber v. Firemen’s Retirement System, 899 S.W.2d 948, 951 (Mo.App. E.D.1995).

ANALYSIS

On appeal, Ms. Tate argues that the Department erred in finding that she recklessly abused an elder because its decision was not supported by substantial and competent evidence. We disagree.

Ms. Tate was afforded a full evidentiary hearing during which her attorney was allowed to introduce evidence on her behalf, elicit testimony from her own witnesses and cross examine the Department’s witnesses. Dr. Mary Case, the Chief Medical Examiner, testified that she performed an autopsy on Ms. Weber’s exhumed body. Dr. Case testified in her professional opinion that Ms. Weber died as a result of being force-fed liquid supplement. Other witnesses testified that Ms. Tate administered the liquid supplement to Ms. Weber and that Ms. Weber protested the feeding. Ms. Tate further testified that she fed Ms. Weber 20 cc’s of liquid, in direct violation of accepted medical practices mandating that only 15 cc’s of liquid be administered at a time. We find this evidence overwhelmingly supports the Department’s decision that Ms. Tate recklessly abused Ms. Weber.

Ms. Tate argues that there is evidence in the record which conflicts with the evidence upon which the Department based its decision. In particular, Ms. Tate points to the fact that Dr. Case’s testimony conflicts with Dr. Sosnoffs initial determination that Ms. Weber’s death was caused by pneumonia. Ms. Tate also points to discrepencies in the testimony regarding the color of the liquid found in Ms. Weber’s lungs. “The fact that the record also contains evidence in conflict with the finding of the [administrative agency] is not grounds for reversal on appeal.” Weber, 899 S.W.2d at 950. The determination of a witnesses’ credibility is the function of the administrative tribunal. Id. at 951. This court has held that, when testimony or other evidence is in conflict in an administrative proceeding, “we defer to the agency’s expertise and findings with regard to the credibility of witnesses, and ‘if the evidence permits either of two opposed findings, we should accept the findings of the administrative body,’ ” Likewise, the Missouri Supreme Court has recently cautioned that “[t]he temptation to substitute the Court’s judgment on factual matters for the [administrative agency’s] fact-finding must be resisted.” Psychare Management, Inc. v. Dep’t of Social Services Div. of Medical Services, 980 S.W.2d 311, 312 (Mo. banc 1998). In this case, the Department heard testimony from several witnesses. While some of that testimony conflicted, it was within the agency’s discretion to believe some, all or none of that testimony in coming to its determination. It is not this court’s job to weigh testimony or to reconcile conflicts in that testimony. Rather, we look only for competent and substantial evidence to support the agency’s findings, of which there is an abundance in this case. Point denied.

In her other two points on appeal, Ms. Tate raises constitutional claims. In particular, Ms. Tate claims: (1) the Department impinged upon Ms. Tate’s constitutional and statutory rights in failing to seek enforcement of a subpoena duces te-cum in the Circuit Court; and (2) the Department applied an unconstitutional burden of proof.

The subpoena requested, among other things, Dr. Sosnoffs notes about Edna Weber and various nurses notes. St. Sophia refused to comply with the subpoena. Ms. Tate’s counsel then asked the hearing officer to enforce the subpoena in the Circuit Court. The hearing officer directed Ms. Tate’s counsel to enforce the subpoena in the Circuit Court, to which Ms. Tate’s counsel agreed. Ms. Tate’s counsel neither objected to the hearing officer’s direction nor did he seek enforcement of the subpoena in the Circuit Court. On appeal, Ms. Tate claims the hearing officer erroneously applied RSMo Section 536.077, which states “[t]he agency shall enforce subpoenas by applying to a judge of the circuit court ...” Ms. Tate’s counsel claims he should not have had to enforce the subpoena, rather the Department should have pursuant to Section 536.077. Ms. Tate claims the hearing officer’s failure to enforce the subpoena impinged upon her constitutional and statutory rights to present evidence.

Constitutional issues not raised at the first opportunity are deemed waived. Lemay Bldg. Corp. v. Director of Revenue, 889 S.W.2d 835, 837 (Mo. banc 1994). When a party is challenging the application of a statute before an administrative agency on constitutional grounds, that party must raise the constitutional issue and preserve it for appeal before the agency. Duncan v. Missouri Bd. for Architects, Professional Engineers and Land Surveyors, 744 S.W.2d 524, 531 (Mo.App. E.D.1988). The purpose of the rule is to bring to the attention of the tribunal the constitutional objection to the tribunal’s proposed application of the statute and allow the tribunal to correct itself. Id. “Moreover, ‘[i]t is imperative to an efficient and fair administration of justice that a litigant may not withhold his objections, await the outcome, and then complain that he was denied his rights if he does not approve the resulting decision.’” Brotherhood of Locomotive Engineers Intern. Union v. Union Pacific R. Co., 134 F.3d 1325, 1331 (8th Cir.1998) (quoting Brotherhood of R.R. Trainmen v. Chicago, Milwaukee, St. Paul & Pac. R.R., 380 F.2d 605, 608-09 (D.C.Cir.1967)).

On appeal, Ms. Tate is now challenging the hearing officer’s application of Section 536.077 on constitutional grounds. During the hearing, the hearing officer informed Ms. Tate’s counsel that he would have to seek enforcement of the subpoena in the Circuit Court. Ms. Tate’s counsel neither objected to the hearing officer’s direction nor did he make any mention of the constitutional issues he now raises. In fact, Ms. Tate’s counsel agreed with the hearing officer that the record should be kept open while counsel went to the Circuit Court to seek enforcement of the subpoena. A party cannot complain on appeal about an alleged error in which that party joined or acquiesced at trial. In re Marriage of Glueck, 913 S.W.2d 951, 956 (Mo.App. E.D.1996). Ms. Tate’s counsel did not bring any error to the attention of the tribunal, thus he did not afford the tribunal the opportunity to correct any application of the statute in question. Therefore, we find that Appellant has failed to preserve her constitutional claim regarding the enforcement of the subpoena issue. Point denied.

Ms. Tate also claims the agency applied the wrong standard of proof — an error which Ms. Tate claims injured her constitutional rights. Ms. Tate failed to preserve this point as well. Her counsel made no objection at the administrative hearing level. Assuming that Ms. Tate had preserved these claims, they do not have merit. Initially, appellant has confused the terms burden of proof, standard of proof, and standard of review in her briefs to this court. They are three separate legal principles. The burden of proof is the duty that the Department carries to prove its assertion that Ms. Tate abused Ms. Weber. The standard of proof in this case, as in most civil cases, is proof by a preponderance of the evidence. The standard of review, as applied by both the Circuit Court and the Court of Appeals, is whether there is competent and substantial evidence to support the agency’s decision. The Department states in its Decision and Order:

As the party endeavoring to change the status quo, the Agency shoulders the burden of establishing that the Claimant has engaged in abuse against a nursing home resident. The Agency has met its burden.

Ms. Tate argues that this passage indicates that the Department applied a “substantial and competent” standard of proof, a standard which she argues is lower than the required “preponderance of the evidence” standard. While the order is noticeably silent as to what standard of proof was employed, there is nothing in the record to suggest that Department applied anything less than a preponderance of the evidence standard. Indeed, the evidence presented at the hearing more than satisfies such a burden. Point denied.

The decision of the Department of Social Services, Division of Aging is affirmed with direction to the Department to enter Appellant’s name on the Employee Disqualification List in accordance with Section 660.315.

GARY M. GAERTNER, P.J., concurs.

PAUL J. SIMON, J., concurs.

      . All references are to Missouri Revised Statutes 1994, unless otherwise noted.


author: SHERRI B. SULLIVAN, Judge.

text:
    Betty Anne BECK, Plaintiff/Respondent, v. Lillian L. SHRUM, Defendant/Appellant.
    No. ED 76140.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.

      James W. Whitney Jr., Law Firm of Menees, Whitney & Burnet, Clayton, for Respondent.
    Robert A. Wulff, Law Office of Ame-lung, Wulff <& Willenbroek, St. Louis, for Appellant.
   SHERRI B. SULLIVAN, Judge.

Lillian L. Shrum (“Defendant”) appeals from a judgment and order granting a Motion to Enforce Settlement in favor of Betty Anne Beck (“Plaintiff”). The issue on appeal.is whether Defendant’s $7,500 offer had been rejected by a counteroffer. We affirm.

The underlying cause of action in this case is for personal injury arising out of an automobile accident involving Defendant and Plaintiff. Prior to trial, Ms. Susan Horowitz (“Horowitz”) represented Defendant. On the day set for trial, the trial court granted Horowitz’s Motion to Withdraw, and Ms. Crystal Smith (“Smith”) entered her appearance for Defendant. Mr. James Whitney, Jr. (“Whitney”) remained Plaintiffs counsel at all times.

At the hearing on the Motion to Enforce Settlement, Whitney and Smith advised the trial court of the following. After the petition and answer were filed, a pre-trial settlement conference was held. At this conference, Plaintiff wanted $50,000. Defendant’s insurance company offered to settle the case for $7,500. At some point after the settlement conference, Whitney told Horowitz that “if I could get $15,000 I could maybe talk [Plaintiff] into settling, although [Plaintiff] had never given [Whitney] any indication of another figure for which [Plaintiff] would settle.” After talking with Defendant’s insurance company, Horowitz indicated that “they couldn’t, but the $7,500 was still available.” Horowitz did not appear at the hearing because she was on maternity leave.

Whitney knew that Smith was reassigned to the case six days before the hearing. Four days before the hearing, Smith was present at Whitney’s office for another matter. At that time, Whitney said to Smith “if I could get a little more money, I could settle it....” Smith indicated that she would talk to the appropriate people, and Whitney replied “how about 10 thousand, some more money will settle it.” After this conversation, Whitney spoke with Plaintiff, and she agreed to accept the $7,500 if she could not get more money.

While going through security at the courthouse with Smith on the day of the hearing, Whitney accepted the $7,500 offer of settlement. Smith replied “I don’t know how that you can do that, because you made a demand of 10.” After calling Defendant’s insurance company, Smith told Whitney that the company said “there wasn’t $7,500 on the table” because the offer had been rejected when Whitney said “[i]f you can get me 10, we can make this thing go away.” In granting Plaintiffs Motion to Enforce Settlement, the trial court took “judicial notice of the custom and practice that an offer is on the table until it is withdrawn, and the attorney is advised that it is withdrawn.”

In a court-tried case, we will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Mmphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We are concerned primarily with reaching a correct result, and thus we do not need to agree with the reasoning of the trial court in order to affirm the result. McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo. banc 1996). A motion to compel settlement adds to a pending action a collateral action for specific performance of the settlement agreement. McKean v. St Louis County, 964 S.W.2d 470, 471 (Mo. App. E.D.1998). The party requesting specific performance of a settlement agreement has the burden of proving, by clear, convincing and satisfactory evidence, his or her claim for relief. Payne v. E & B Carpet Cleaning, Inc., 896 S.W.2d 650, 651 (Mo.App. E.D.1995). The trial court is afforded much discretion in deciding whether to award the equitable remedy of specific performance. McBee v. Gustaaf Vandecnocke Revocable Trust, 986 S.W.2d 170,173 (Mo. banc 1999).

On appeal, Defendant argues that the trial court erred in granting Plaintiffs Motion to Enforce Settlement because the trial court refused to apply principles of contract law in order to determine whether a valid offer existed at the time of the motion. Defendant further argues that because a counteroffer acts as a rejection-of the original offer, no enforceable offer was present when the court entered its order.

Contract law governs a settlement agreement. Tinucci v. R.V. Evans Co., 989 S.W.2d 181, 184 (Mo.App. E.D.1998). A legal, valid settlement agreement must possess all the essential elements of any other contract. Id. Although the trial court characterized the issue as “not a matter of contract law” but rather as a matter of custom and practice among attorneys in St. Louis, application of contract law mandates the same result.

The basic elements of a contract are offer, acceptance and consideration. Id. Any acceptance that includes new or variant terms from the offer amounts to a counteroffer and a rejection of the offer, which may become open again only if renewed by the offeror. Id. However, although a request for a change or modification of a proposed contract made before an acceptance thereof amounts to a rejection of it, a mere inquiry as to whether.the offeror will alter or modify its terms, made before acceptance or rejection, does not amount to a rejection. Jaybe Construction Co. v. Beco, Inc., 3 Conn.Cir.Ct. 406, 216 A.2d 208, 211 (1965) (concluding that the following statement was an inquiry: “The plaintiff stated that the bid to the state was a ‘close’ one, and if possible the plaintiff would like to have the defendant ‘shave’ its figure.... ”); Foster v. West Pub. Co., 77 Okla. 114, 186 P. 1083, 1084 (1920) (concluding that the following statement, made subsequent to certain suggestions by the speaker, was an inquiry: “This, I say, would be my idea of a square deal; but, if you are not disposed to take the same view, I suppose there is nothing for me to do.... ”)• Consequently, if the offer has not been withdrawn, it may be accepted within a reasonable time to create a binding contract.

The issue, then, is whether Whitney’s discussion with Smith at his office constituted an inquiry or a counteroffer. Both Smith and Whitney testified that Whitney used conditional language, i.e. “if,” in the discussion. The language is not a clear rejection of the original offer, but rather it inquires about a larger amount of money while still keeping the original offer under consideration. Therefore, because the $7,500 offer had not been withdrawn and because Whitney made an inquiry about $10,000, not a counteroffer, his acceptance of the $7,500 offer at the courthouse created a binding contract.

The judgment of the trial court is affirmed.

CRANE, P.J. and ROBERT G. DOWD, Jr., J., concur.


author: SMART, Judge.

text:
    STATE of Missouri, Respondent, v. Frank ANDERSON, Appellant.
    No. WD 56504.
    Missouri Court of Appeals, Western District.
    Submitted Nov. 3, 1999.
    Decided Feb. 29, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      John M. Schilmoeller, Asst. Public Defender, Kansas City, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before, JAMES M. SMART, Jr., P.J.; JOSEPH M. ELLIS, and EDWIN H. SMITH, JJ.
   SMART, Judge.

Frank Anderson was convicted, after a jury trial, of first degree robbery, pursuant to § 569.020, RSMo 1994, and armed criminal action, pursuant to § 571.015, RSMo 1994. He was sentenced to concurrent terms of ten and three years’ imprisonment. Anderson appeals the convictions.

Factual Background

At approximately 9:00 p.m., on the evening of September 4, 1997, Shaun Golden was driving his mother’s blue 1990 Chevrolet Corsica near his grandmother’s house at 3089 E. 7th Street, in Kansas City, Missouri, preparing to park the car and go in. Shortly before he got to the house, he had to steer around two men in the middle of the street. He noticed that one of the men was tall and the other considerably shorter. Golden parked, and as he was preparing to get out of the car, the two men walked up to the door. The taller man opened the door and Golden saw that he had a “chrome” gun in his hand. He pointed it at Golden’s face and told Golden to “drop the keys and run.” Golden noted that the man had on a plaid shirt, blue jeans and a Nike hat over a bandanna. Golden identified the taller man as the defendant at trial.

Golden did as he had been told; he dropped the keys and ran across the street to his grandmother’s house. As he was waiting for someone to answer the door, he looked back and saw the two men drive away in the Corsica.

At about 9:25 p.m., Kansas City Police Officer Brad Thomas noticed a blue 1990 Chevrolet Corsica being driven erratically near 2Srd Street and Paseo. He activated his siren and lights. The Corsica continued south on Paseo to 25th street, ran the stop sign, ran over the curb and drove into a bush in a failed effort to make a left turn. The two occupants jumped out of the car and ran.

Officer Thomas’s partner went after the passenger, and Thomas ran after the driver, the taller man. Thomas described the man he was chasing as wearing a blue, plaid-checkered, flannel shirt and khaki pants. Thomas eventually lost sight of the driver, but a short time later he was notified that a suspect had been arrested at 1616 East 22nd Terrace. Police found the suspect on the porch of the house at that address knocking on the door. The man arrested was the appellant, Anderson. Anderson was arrested at approximately 9:32 p.m.

Anderson was breathing hard and his heart was pounding when he was arrested, according the Thomas’ testimony. He did not have on a blue-checkered shirt, however; he had on a T-shirt and khaki pants, and no hat or bandanna. He told police that he was “coming over to visit his aunt.” When police questioned the woman who lived at the house, she did not know Anderson. Officer Thomas’s partner apprehended the other suspect, Larry Willis, who Anderson acknowledged was a friend of his. Willis is five feet two inches in height.

The next day, police showed Golden a photographic lineup of suspects, which included a photograph of Anderson. Golden was unable to positively identify a suspect, he said, because the robber had worn a hat. When the police put a piece of paper across the tops of the heads of all the photographs, Golden positively identified Anderson.

When Anderson was questioned by police about his involvement in the robbery, he first denied that he knew anything about it. Later, Anderson admitted that he and an acquaintance did steal the car from Golden, but said that the gun -was a silver squirt gun. He later told an officer that it was not him but his friend who had had the gun. Another officer later asked Anderson about some Sears Craftsman tools that had been taken out of the trunk of the stolen car. Anderson said that they were behind a convenience store and that if the officer would let him out of jail he would take the officer to the tools and give him $100.00. When the officer refused, Anderson upped the offer to $200.00. The tools were not found at the convenience store.

At trial Anderson testified that he had not been involved in stealing the car. He stated that he had been with his girlfriend, Keisha Whitley, the whole day. The reason he had been on the woman’s porch when arrested, he testified, was that he had been looking for a woman named Rita who had given him her address when he talked to her earlier that day. Anderson claimed that the reason he had confessed to the police was that he was afraid and wanted to go home and that the officer told him if he signed the confession he would let him go.

Procedural History

Prior to the trial, the state, pursuant to Rule 25.05 requested information regarding any alibi that Anderson might intend to rely on at trial. No information about an alibi was forthcoming. In his opening statement at trial, Anderson’s defense attorney stated that Anderson was not at the scene of the crime, but was “on the other side of town.” The State objected at that point, saying,

It’s my belief that Mr. Schlegel [Anderson’s trial counsel] is about ready to establish an alibi for the defendant. He has not notified the State of his intent to rely on an alibi. He has not endorsed any witnesses to support an alibi, and he’s not given the State the required notices of alibi as to where and when the defendant was as required by Supreme Court rule.

Appellant’s attorney stated that because he was relying upon the testimony of the defendant himself, “in isolation of any other testimony” he did not believe that he was required to “endorse” the defendant as his own witness. Defense counsel stated, “This is just his testimony. This is what he would say.” He later added, “All I can say is that the witness that the State has already talked to is the only witness there is.” The court sustained the State’s objection, but indicated that it would reconsider the issue when the defense was presented.

After the defendant presented two witnesses, but before he took the stand himself, the court sought to re-examine the issue of alibi. The State argued that the requirements of the discovery rule required notification of an alibi even when the defendant is the only one who is going to testify as to his whereabouts at the time of the crime, because the State is entitled to time to investigate. Defendant’s attorney argued that Missouri’s notice-of-alibi rule was unconstitutional in that it violated a defendant’s Fifth Amendment right to remain silent and his Sixth Amendment right to effective assistance of counsel because it violated the attorney-client privilege.

The court ruled that the defendant could testify that .he was not at the scene of the crime and that he did not commit the crime. The court went on to define “alibi testimony” as that which involves affirmative evidence of the specific location of the defendant at the specific time of the crime. Stating that it was relying on State v. Cox, 542 S.W.2d 40 (Mo.App.1976), thé court ruled:

I am going to preclude the defendant from testifying regarding alibi, which does not mean that he cannot testify regarding his alleged participation in the crime.... What he can not do is say that he was at a specific place at a specific time that would be a time that coincided with the time the offense took place.

Defendant testified that on the day of the crime, he was living with his girlfriend, Keisha Whitley, at 1210B Independence Avenue. When asked whether he was at the scene of the crime (3030 E. 7 a Street) at 9:00 p.m. that evening, he answered, “No, I wasn’t.” He also testified that when questioned by the police about the crime, he had to “think hard” about what they were talking about because he “knew [he] had been with [his] girlfriend all that day.”

Anderson was convicted of first degree robbery and armed criminal action. He was sentenced to concurrent terms of ten and three years’ imprisonment. At the sentencing hearing, Anderson’s trial counsel repeated his argument that it was error for the court to preclude Anderson from testifying regarding an alibi. The court rejected his argument. The court also denied Anderson’s motion for a new trial in which he asserted that prohibiting his alibi testimony denied him his Fifth, Sixth, and Fourteenth Amendment rights.

Anderson appeals to this court on the ground that he was denied his constitutional rights when the trial court refused to allow him to testify to an alibi since he had not supplied the State with the requisite information pursuant to Rule 25.05(A)(5).

Discussion

Anderson contends that the sanction in this case was an unconstitutional deprivation of his right to testify in his own defense, to present witnesses, to be free from self-incrimination, and to due process of law.

The requirement that the defendant provide the state with notice of intent to rely upon an alibi defense is not an unreasonable or unconstitutional discovery request in the context of mutual disclosure requirements. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Florida’s notice-of-alibi rule upheld against an argument that it violated the right to be free from self-incrimination); Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (Oregon’s rule struck down because it did not impose “reciprocal discovery” on both the defendant and the state). Here, there is no contention that the discovery rules disproportionately favor the state. Accordingly, the defendant’s fundamental due process rights are infringed in this case only if the court’s sanction resulted in fundamental unfairness. State v. Mansfield, 637 S.W.2d 699, 703-04 (Mo. banc 1982).

Looking at the sanction in its entire context, we note, first of all, the state failed to comply with the provision of Rule 25.05(A)(5) requiring that the state in its discovery requests, specify the place, date, and time of the crime charged. While we recognize that generally the charge itself supplies this information, and while there is no reason to believe that the lack of such specification hindered the accused in this case, it still must be noted that the rule, by its clear terms, does not trigger any duty until the state has submitted a request specifying the place, date and time of the crime charged. The request need not state the exact moment of the crime. Cox, 542 S.W.2d at 50. However the drafters of the rule thought such specification was of sufficient importance to warrant that it be a specific requirement. Accordingly, the state will be in a better position to obtain enforcement if it has included the necessary specification in the request. In this case, however, Anderson did not call to the court’s attention the state’s failure to include the specification in the discovery request, and we have no reason to believe that the court was aware of the state’s failure. Anderson thus cannot now be permitted to criticize the court’s action on that basis.

Anderson argues that the notice requirement does not or should not apply when the defense plans to present no alibi testimony other than that of the accused. There is some support for the view that an accused person who intends to offer only his own testimony in support of the defense of alibi need not submit a notice of alibi. See Ferdinand S. Tinio, Annotation, Validity and Construction of the Statute Requiring Defendant in a Criminal Case to Disclose Matter as to Alibi Defense, 45 A.L.R.3d 958 (1972). The issue arose in Cox, 542 S.W.2d at 49-50, but was not decided there, although the court noted that “the weight of authority” supports an interpretation of alibi that includes the accused’s own testimony about his location at the time of the crime. Id. at 52 n. 19.

Alibi

The term “alibi” in common parlance frequently seems to anticipate the presentation of testimony by witnesses other than the accused. However, we believe that, for discovery purposes, the trial court was technically correct in concluding that Rule 25.05(A)(5) requires disclosure of intent to rely on evidence that the defendant was at another specific location at the time of the crime, even when such evidence is to come only from the accused. When an alibi is to be offered, including one to be offered only by the accused’s own testimony, the state still has a legitimate interest in having an opportunity to investigate the alibi in advance of trial. An efficient trial is also facilitated by the state knowing whether the defense theory is going to be alibi because a defense of alibi is necessarily inconsistent with certain other possible theories, such as self-defense. Thus, we do not conclude that the trial court erred in its understanding of what constitutes the defense of alibi to the extent that the court reasonably believed defendant was going to offer evidence that he was at another specific location. Testimony by an accused that he or she was not present at the scene of the crime, without the specification of a precise location, is not an alibi, of course. It is a mere denial.

An alibi, as an item of evidence, stands separate from defendant’s bare denial that he committed the alleged offense. An alibi is additional substantive evidence, above and beyond the accused’s bare denial of guilt, relying for its weight on the credibility of other persons, or on circumstantial evidence, designed to establish that defendant could not have committed the offense in question.

State v. Williamson, 877 S.W.2d 258, 261 (Mo.App.1994). The difference between an alibi and a mere denial may be a fine line in certain cases. A statement by the accused that he was not at the scene of the crime is functionally more of a denial than an alibi, even if the accused, when asked to account for his whereabouts, states that he assumes he was at home at the time in question. In contrast, an accused who offers a ticket stub, and claims he was at a concert at the time of the crime, is offering an alibi. Id.

Fundamental Unfairness

The trial court is allowed discretion to sanction a discovery violation, and the court’s decision will be reversed on appeal only if it results in fundamental unfairness to the defendant in that it substantially prejudiced the defendant or affected the outcome of the trial. Mansfield, 637 S.W.2d at 703. However, it must be remembered that a refusal to allow testimony in a criminal case is a “drastic remedy.” Id. The court, in considering a request for sanction for failure to disclose an alibi, should consider all of the pertinent circumstances, including any prejudice to the state from the failure to make disclosure. In this case, when the state moved for sanction, it would have been appropriate for the court to inquire more specifically of the defense exactly what testimony the defendant intended to present as to his whereabouts, including the specific location, the identity of other persons present, and the nature of any corroboration to be offered. The court could then have inquired of the state what it would have done differently if it had received seasonable notice. If the court had determined that any prejudice to the state was negligible, the court would, in our view, have done well to deny the request for sanction altogether. Here, however, we fail to discern that the court’s order resulted in any fundamental unfairness to the accused. The defendant in this case, in spite of the court’s ruling, managed to present his rather modest “alibi” testimony anyway. The record indicates that any statements the defendant wished to make about his whereabouts at the time of the robbery were actually made. Accordingly, we hold that the trial court’s ruling did not violate the defendant’s right to testify in his own defense, his right to present witnesses, or to be free from self-incrimination. The judgment is affirmed.

ELLIS and EDWIN H. SMITH, JJ., concur.

      . It is difficult to see how, under even the best of circumstances, the defendant could have derived much benefit from his testimony that he spent the day with his girlfriend. The evidence showed that the crime occurred about 9:00 p.m. The robbers drove off in the victim’s vehicle. Approximately one-half hour after the victim’s car was taken, after a police chase, defendant was arrested on the porch of a house a couple of miles from the scene of the robbery and also a significant distance from the address at which defendant resided. We fail to see how defendant’s claimed "alibi” would have logically precluded the possibility that defendant committed the robbery.


author: GARY M. GAERTNER, Presiding Judge.

text:
    Arnold FLIPPIN, et al., Plaintiffs-Respondents, v. COLEMAN TRUCKING, INC., Defendant-Respondent, v. International Business & Mercantile Reassurance Company, Intervenor-Appellant.
    No. ED 75907.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 29, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.

      Ted L. Perryman, Roberts, Perryman, Bomkamp & Meives, P.C., St. Louis, for Appellanf/Intervenor.
    James P. Barton, Myerson & Barton, Kansas City, for Plaintiffs/Respondents.
   GARY M. GAERTNER, Presiding Judge.

Appellant, International Business & Mercantile Reassurance Company, (“International”), appeals the judgment of the Circuit Court of the City of St. Louis, denying its two motions to intervene as a matter of right under Rule 52.12(a). The two appeals are consolidated. We affirm.

The underlying lawsuit arises out of a motor vehicle accident, which resulted in the death of Lori Ann Flippin, (“decedent”). The accident occurred on July 22, 1995, on the exit ramp of Interstate 55 at the intersection of U.S. highway 67 in Jefferson County, Missouri. Decedent, born on September 14,1967, was travelling with her family south on Interstate 55. She exited the highway to proceed west on U.S. Highway 67. As she exited the highway, decedent observed an accident, which had occurred minutes before, on the exit ramp. She stopped her vehicle and went to offer assistance to an injured motorist. Decedent was approximately 40 feet away from the paved portion of the roadway. A few minutes later, a tractor-trailer operated by Coleman Trucking, Inc.’s driver, (“driver”), exited southbound Interstate 55 to likewise travel west on U.S. Highway 67. Driver lost control, skidded off the road, hit and decapitated decedent. Decedent was pronounced dead at the scene. Plaintiffs, Arnold J. Flippin (husband of decedent) and James F. Witt (father of decedent), (“plaintiffs”), filed a wrongful death action against defendant, Coleman Trucking, Inc., (“Coleman Trucking”), alleging that its driver was negligent in the operation of a tractor-trailer which struck, decapitated, and killed decedent.

At the time of this accident, Coleman Trucking had liability insurance with Jefferson Insurance Company, (“Jefferson”), and International. The liability limits with Jefferson and International were for $1,000,000 each. A dispute arose between the two insurance carriers and as a result of that dispute, a declaratory judgment action was filed in the United States District Court for the Eastern District of Missouri. Both International and Jefferson agreed that they had coverage, but the dispute is with regard to who is the primary carrier and who is the secondary carrier. Jefferson took the position that it is a primary carrier and that International is a co-primary carrier. International took the position that it was an excess carrier over Jefferson’s limits of $1,000,000. Neither Coleman Trucking nor plaintiffs are party to that action.

Jefferson agreed to defend Coleman Trucking in the case at bar. Prior to trial, plaintiffs entered into a settlement agreement pursuant to section 537.065, RSMo 1994, with Coleman Trucking and Jefferson. The agreement provided that Jefferson would pay plaintiffs the sum of $725,-000. In exchange, plaintiffs would release Jefferson from any further obligations to pay. Plaintiffs allege that International was not involved in the settlement agreement because International was uncooperative.

On September 14, 1998, the trial court approved the settlement agreement after a hearing. Afterwards, plaintiffs presented evidence of damages. In addition, to the above facts, plaintiffs adduced further evidence, especially with regard to the actions of Joe Coleman, (“owner”), owner of Coleman Trucking. Owner arrived at the scene of the accident after he learned about it. Owner did not identify himself to the Highway Patrol officers who were at the scene of the accident. Upon arriving at the scene, owner proceeded to the tractor-trailer, tampered with the brakes, and left the scene of the accident. Plaintiffs also claimed that owner was aware of the driver’s driving record and still allowed driver to continue driving their tractor-trailer. Plaintiffs alleged that according to Coleman Trucking’s policy, a driver who received two or three tickets in a period of three years would be terminated. Driver, in the past two years prior to the accident, had received three speeding tickets and he was still allowed to operate Coleman Trucking’s truck. After plaintiffs finished presenting their evidence, the trial court took the case under submission.

The matter remained under submission until October 19, 1998, when International filed its first application to intervene. International also filed a motion to set aside the section 537.065 agreement and a motion to rule on the pending motions. Plaintiffs filed a memorandum in opposition to the various motions filed by International. On November 20, 1998, a hearing was held on all the motions filed by International. After hearing arguments, the trial court took the matter under submission.

On January 21, 1999, the trial court entered an order denying all of International’s motions. On January 25, 1999, the trial court entered a judgment against Coleman Trucking and in favor of plaintiffs in the amount of $2,000,000. On February 8, 1999, plaintiffs filed a motion to amend or modify the judgment by asking for prejudgment interest pursuant to section 408.040.2. On February 10, 1999, International filed a second application to intervene.

On February 23, 1999, a hearing was held by the trial court. The trial court denied International’s application to intervene. On February 24, 1999, the trial court amended its previous judgment and awarded plaintiffs pre-judgment interest in the amount of $485,334.25. International appeals.

International raises one point on appeal. International argues that the trial court erred in denying its motions to intervene under Rule 52.12(a) because: 1) International has an interest in the pending litigation,- 2) the representation of International’s interest by the existing parties was inadequate, and, 3) it is or may be bound by a judgment in the action.

The applicable standard of review for a denial of motion to intervene is found in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The judgment of the trial court denying International’s motion to intervene will be reversed if it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Borgard, v. Integrated Nat. Life Ins. Co., 954 S.W.2d 532, 535 (Mo.App. E.D.1997). The burden is on the intervenor, as pleader, to show all the elements required for intervention as a matter of right under Rule 52.12. Id.

Rule 52.12 provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Rule 52.12(a)(1) is not applicable to this case because no statute authorizes International to intervene as a matter of right. However, International claims that Rule 52.12(a)(2) is applicable to it in this case. In its first motion to intervene, International accepted its obligation to pay all sums Coleman Trucking legally must pay as damages. International stated that it never declined coverage nor reserved its right. With regard to the issue of whether International has an interest in the pending litigation or not, it stated: “[s]ince [International] is potentially liable for any judgment entered by the Court, [International] will either gain or lose by the direct operation of the judgment.” Therefore, International claimed it has an interest in the pending litigation. After the trial court denied International’s first motion to intervene and entered judgment for the plaintiffs, International filed another motion to intervene. In its second application to intervene, International stated: “[t]he position of [International] is different from the position it took, prior to the Court’s judgment of January 25, 1999. Now, [International] is clearly an interested party with the right to intervene since a judgment has been rendered and nothing in section 537.065 prohibits same.” International continued: “[s]ince [International] is bound by the judgment previously entered by the Court, [International] will either gain or lose by the court’s amendment of its previous order to include pre-judgment interest.”

In Missouri, to intervene as a matter of right under Rule 52.12(a)(2), three requirements must be met: 1) would-be interve-nor must show interest in the subject matter, 2) would-be intervenor must show that disposition of the action may impede its ability to protect that interest, and 3) that its interest are not adequately represented by existing parties. Borgard, 954 S.W.2d at 535. The trial court may deny the motion to intervene if any one of these requirements is not met. Id.

-The “interest” in question “means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action ... [T]he ‘interest’ must be such an immediate and direct claim upon the very subject matter of the action that intervenor will either gain or lose by the direct operation of the judgment that ma> be rendered therein.” Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475, 479 (Mo.App. W.D.1992) (quoting State ex rel. Farmers Mut. Auto. Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 321[4] (banc 1954)). “The liability of an insurer as potential indemnitor of the judgment debtor does not constitute a direct interest in such a judgment so as to implicate intervention as of right in that action.” Whitehead, 844 S.W.2d at 479. “An insurer does not have an interest that implicates the rule until the insurer is called upon to make indemnity as to the judgment.” Id. “It is when a claim for potential indemnity becomes a demand for actual indemnity that the direct interest [right] of the insurer to intervene in the other action accrues.” Id.

In the case at bar, at the time International filed its motions to intervene, there was no call on International to indemnify the judgment against Coleman Trucking and there was no suit to enforce the obligation to make indemnity. International’s interest, as a potential indemnitor of the judgment against Coleman Trucking, does not constitute a direct interest in such a judgment as to implicate intervention as of right in that action. We conclude that International’s interest does not amount to a direct interest in the judgment, so as to implicate its right to intervene as a matter of right.

However, relying on Augspurger v. MFA Oil Co., 940 S.W.2d 934 (Mo.App. W.D.1997), International argues that it has the requisite interest to intervene as a matter of right. International argues that Augspurger requires an insurer to satisfy two contingencies in order to have the requisite interest to intervene. International claims that it satisfies the two contingencies. With regard to the first contingency, International states: “[i]n Augspurger v. MFA Oil Co., 940 S.W.2d at 937, the court held that when the plaintiff and defendant-insured enter into a section 537.065 agreement, the first contingency has been satisfied. This transforms the claim from one of potential indemnity to one of actual indemnity. Thus, International has satisfied the first contingency. The plaintiffs and Coleman Trucking entered into a section 537.065 agreement.”

We do not read Augspurger in such a way. In Augspurger, the court stated: “the transformation from potential indemnity to actual indemnity actually depends on not one but two contingencies. The first is the question of liability, which corresponds to the section 537.065 settlement agreement and to the ensuing bench trial, judgment, and demand for payment.” Augspurger, 940 S.W.2d at 937. Augspurger does not hold that entering into a section 537.065 settlement agreement only satisfies the first contingency. To satisfy the first contingency, a demand for payment on the judgment must be made. In the present case, at the time International filed its motions to intervene, the record did not support that a demand for payment was made on International. Thus, International’s reliance on Augspurger is mistaken.

Based on the foregoing, the judgment of the trial court denying International’s two motions to intervene under Rule 52.12 is affirmed.

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.

      . Interestingly, International denies coverage in a pending garnishment proceedings filed by plaintiffs in the Circuit Court of the City of St. Louis, Case No. 962-08537.

      . All statutory references are-to RSMo 1994, unless otherwise indicated.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Manu PATEL, Defendant/Appellant.
    No. ED 75533.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Application for Transfer Denied June 27, 2000.

      Nathan Z. Dershowitz, Amy Adelson, New York, NY, Martin M. Green, Joe D. Jacobson, Clayton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., & JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Defendant, Manu Patel, appeals from convictions on three counts of assault in the first degree, Section 565.050 RSMo 1994, and three counts of armed criminal action, Section 571.015 RSMo 1994. For the assaults, defendant was sentenced to consecutive terms of twenty, five and seven years, for a total of thirty-two years. For armed criminal action, defendant was sentenced to terms of five, three, and five years to be served concurrently with the thirty-two years for the assaults.

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

We affirm the judgments of the trial court in accordance with Rule 30.25(b).