author: VICTOR C. HOWARD, Judge.

text:
    Thomas J. MARSH, Appellant, v. Sabina K. MARSH, Respondent.
    No. WD 64309.
    Missouri Court of Appeals, Western District.
    May 24, 2005.

      Curtis E. Woods, David S. Ladwig, Kansas City, MO, for appellant.
    Barton S. Blond, Kansas City, MO, for respondent.
    Before SPINDEN, P.J., and HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Thomas Marsh (“Father”) and Sabina Marsh (“Mother”) share joint legal and physical custody of their daughter, A.M., born September 16, 1996. Father moved for modification of custody, seeking sole legal and physical custody of A.M. Father also moved for reimbursement from Mother for the monthly health insurance premiums he paid because Mother failed to insure AM. as required by the judgment of dissolution. Mother moved for appointment of a guardian ad litem (“GAL”) because of Father’s allegations of abuse. Mother also filed a counter-motion for attorney’s fees and costs and GAL fees.

Father raises six points in his appeal from the trial court’s judgment entered upon the motions. Because this court concludes that a discussion of five of Father’s points of error would have no precedential value, we deny those claims of error and affirm the judgment as to those five points pursuant to Rule 84.16(b). A memorandum of the reasons for our decision as to those issues has been provided to the parties.

In this opinion, this court will address only Father’s fifth point, which challenges the trial court’s modification of child support. For the reasons set forth below, we reverse as void the portions of the judgment modifying the original dissolution judgment by increasing Father’s child support obligation and by ordering that Father is responsible for AM.’s health and dental insurance.

Standard of Review

Our standard for reviewing the trial court’s judgment is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), so unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or the judgment resulted from an erroneous declaration or misapplication of the law, we must affirm. Meyer v. Block, 123 S.W.3d 316, 320-21 (Mo.App. W.D.2003).

Background

After Father and Mother divorced in December of 2000, their relationship continued to sour. Their conversations were often uncivil, and they sent “nasty” emails back and forth. Father kept copies of the emails from Mother. He also kept recordings of their telephone conversations and messages left by Mother.

In early October 2001, after A.M. allegedly told Father that Mother had abused hér, Father obtained an ex parte Order of Protection against Mother. Two weeks later, when the court denied Father’s request for a full order of protection for A.M. because of the custody order in the judgment of dissolution, Father filed his motion to modify custody, in which he made six allegations of changed circumstances warranting custody modification under section 452.410.1 RSMo 2000, including an allegation that Mother had abused A.M.

In response, Mother filed a motion for appointment of a GAL because of Father’s abuse allegation. The only other motion filed by Mother was a counter-motion for her attorney’s fees and costs and GAL fees.

In March of 2002, the court ordered the parties to attend mediation. The next month, the court appointed a GAL. After mediation, extensive discovery, a change of judge, and numerous continuances, the trial court began hearing evidence on Father’s motion to modify custody on November 20, 2003. The court again heard evidence on January 22 and 23, 2004, and on March 18, 2004. An extensive discussion of the evidence and arguments presented to the trial court is unnecessary for our determination of the issue in this opinion. We view the evidence in a light most favorable to the court’s judgment. As is often the case with child custody disputes, most issues hinged on issues of credibility, which were for the trial court to determine.

On May 26, 2004, the trial court entered judgment upon the motions. At issue in this opinion is the trial court’s modification of child support. Father’s original child support obligation in the judgment of dissolution was $450 per month. In its judgment, the trial court held in part that beginning June 1, 2004, Father’s child support obligation would increase to $566 per month. Additionally, the original dissolution judgment provided that Mother was responsible for. A.M.’s health benefits. The trial court modified this provision to provide that Father is solely responsible for A.M.’s health and dental insurance.

Modification of Child Support

In his fifth point on appeal, Father challenges this increase of his child support obligation. We agree with Father that the trial court exceeded its jurisdiction in so modifying the child support and healthcare provisions in the original judgment of dissolution. The only pleadings before the trial court were Father’s motion for modification of custody and Mother’s counter-motion for attorney’s fees and GAL fees. Mother argues that child support was “clearly” in issue because Father also sought modification of support in his motion to modify custody. But Father only sought modification of child support in the event that the trial court granted him sole legal and physical custody of A.M. Neither party otherwise pled or requested child support modification.

In Dolan v. Dolan, 540 S.W.2d 220 (Mo.App.1976), the wife filed a motion to compel the husband to pay the monthly alimony payments of $600 directly to the clerk of the court. Id. at 220. After the circuit court entered an order compelling the husband to pay alimony to the clerk of the court, it held a hearing on the clerk of the court’s request for clarification of the record concerning the amount of alimony the husband was ordered to pay and a date. Id. at 220-21. The court subsequently ordered the husband to deposit monthly alimony payments of $400 with the clerk of the court. Id. at 221. On appeal, the wife argued that the court exceeded its jurisdiction in reducing the amount of alimony the husband owed because, “ ‘no motion or pleading was before it stating a claim or making a prayer for any such reduction.’ ” Id. The appellate court agreed and explained as follows:

In Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11[, 13] (Mo.App.1966), we followed the oft-cited opinion of Lamm, J., [in] State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25[1][, 29] (1909), and ruled: [“]Courts do not set themselves in motion but remain passive until the issues are framed by the parties; that what the court decides within those issues is res judicata, but anything beyond is coram non judice and void. So, at the hearing now under consideration the ambit of the court’s authority was limited to the area of controversy which the parties had adopted and the court itself had preseribed.[”]
This cardinal principle has been applied in other divorce actions, voiding judgments to the extent they grant relief beyond the pleadings. See Hughes v. Wagner, 303 S.W.2d 181[1, 2] (Mo.App.1957), and Dickey v. Dickey, 132 S.W.2d 1026[4-8] (Mo.App.1939).

See also Grezeskowiak v. Grezeskowiak, 997 S.W.2d 100, 102-03 (Mo.App. E.D.1999) (explaining that the trial court’s modification of the dissolution decree by ordering Husband to share equally in the parties’ child’s uninsured health costs “was an erroneous application of the law,” because, “Wife neither filed a motion to modify the dissolution decree nor pleaded ‘changed circumstances so substantial and continuing as to make the terms unreasonable.’ Sec. 452.370, RSMo. Cum.Supp.1999”).

Here, no motion or pleading was before the court claiming or praying for an increase of Father’s child support obligation or for new orders regarding health benefits for A.M. Nor did the parties try the issue by consent under Rule 55.33(b). To allow these child support modifications to stand would directly contradict the “cardinal principle” enunciated in Dolan. Trial courts do not have free rein to delve at will into issues not properly pled or tried by the consent of the parties.

Thus, Father’s fifth point on appeal is granted. The trial court’s modifications of the original judgment of dissolution to increase Father’s child support obligation and to provide that Father is solely responsible for payment of A.M.’s health and dental insurance are reversed as void.

SPINDEN, P.J., and NEWTON, J„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose A. VASQUEZ, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64290.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Irene C. Earns, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   Order

PER CURIAM.

Jose Vasquez appeals the denial of his Rule 24.035 motion for post-conviction relief. In that motion, Vasquez sought to vacate a conviction following a guilty plea for the class C felony of receiving stolen property, § 570.080, RSMo 2000, for which he had been sentenced to serve six years in the Missouri Department of Corrections. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    Brian A. WARD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64258.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Ruth Sanders, Kansas City, MO, for appellant.
    Deborah Daniels, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Brian A. Ward appeals the denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. Because a published opinion would have no precedential value, a memorándum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: ROBERT G. ULRICH, Judge.

text:
    Selta TRAVIS, Respondent, v. Jerry TRAVIS, Appellant.
    No. WD 64083.
    Missouri Court of Appeals, Western District.
    May 24, 2005.

      Bradley P. Grill, Kansas City, MO, for Appellant.
    John E. Chick, Jr., Kansas City, MO, for Respondent.
    Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

The marriage of Selta May Travis and Jerry Dale Travis was dissolved by judgment on March 16, 2004. Mr. Travis asserts three points on appeal. He claims as point one that the court erred by requiring him to pay an equalization payment to Mrs. Travis in the division of the marital property and in allocating the entire marital debt to him. He claims as his second point that the court erred in not stating the value of a portion of a retirement plan determined to be marital property, in dividing that plan between the parties, and in classifying certain personal property items as both marital and non-marital property. Finally, as his third point, Mr. Travis claims the court erred in requiring him to pay a portion of Mrs. Travis’ attorney fees.

The judgment is reversed and the case is remanded for further proceedings.

Facts

Jerry and Selta Travis were married on April 1, 1995, in Edgerton, Missouri, and their marriage was registered in Platte County. The parties separated on or about March 3, 2003. On March 10, 2003, Mrs. Travis filed her Petition for Dissolution of Marriage. Mr. Travis filed an Answer and Cross-Petition on April 30, 2003.

Trial was conducted on January 26, 2004. Both parties appeared in person and by counsel. The trial court took all issues and evidence presented under advisement and entered judgment on March 16, 2004. The court found that Mrs. Travis was able to support herself through appropriate employment, and neither party was awarded periodic maintenance. The court identified the parties separate property and awarded it respectively and divided and awarded the marital assets in accordance with Chapter 452 RSMo. The court identified the marital debt to be $82,123.53, incurred by the parties through February 28, 2003, and ordered Mr. Travis to pay it. The court found that the portion of Mr. Travis’ World Span Retirement fund accumulated from the date of the marriage, all of his 401K account, and all of his Federal Express Pension plan were acquired during the marriage and were marital property. The court ordered that the retirement plans be divided equally between the parties as of the date of the court’s judgment. The court found that Mr. Travis had purchased the house used by the parties as them marital residence prior to the marriage and awarded it to him as his non-marital property. The Court ordered Mr. Travis to pay to Mrs. Travis $25,000 at 9% per annum as a property equalization payment and granted Mrs. Travis a lien on the property to the sum of the equalization. Finally, the court found Mr. Travis capable of contributing to Mrs. Travis’ attorney’s fees and ordered him to pay to her $5,000 toward her incurred attorney fees. This appeal followed.

Standard of .Review

When reviewing a marital dissolution, the decision of the trial court will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court determines the credibility of witnesses, and reviewing authority will view the evidence and permissible inferences in the light that is most favorable to the decree. Kinder v. Kinder, 922 S.W.2d 398, 400 (Mo.App.1996); Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The trial court exercises broad discretion in identifying and dividing marital property. Pruitt v. Pruitt, 94 S.W.3d 429, 433-34 (Mo.App. E.D.2003). Appellate authority will reverse the division of marital property if the division is so unduly weighted in favor of one party that .it constitutes an abuse of discretion. Rawlings v. Rawlings, 36 S.W.3d 795, 797 (Mo.App. W.D.2001). Division of marital property need not be equal, but it must be fair and equitable considering the circumstances of the case. Id. at 798. Section 452.330, RSMo 2000 governs the disposition of marital property in a dissolution proceeding.

Points on Appeal

Mr. Travis asserts several claims of error in three points. His first point pertains to the trial court’s allocation of property and debt. He contends that in dividing the marital property, the trial court improperly ordered him to pay $25,000 as an equalization payment to his former wife. Mr. Travis alleges that the trial court further erred by allocating to him the entirety of the marital debt, totaling $82,123.53. In his second point, Mr. Travis argues that the judgment is faulty because it failed to designate a value of a portion of one of his retirement plans, yet divides it between the parties as marital property, and it errantly classifies certain personal items awarded to the parties as both marital and non-marital. In his third and final point, Mr. Travis claims that the trial court improperly ordered him to pay $5,000 to Mrs. Travis for her legal fees.

Discussion

In determining the appropriate division of marital property, the trial court must consider all relevant factors. § 452.330.1, RSMo 2000. Five factors stated in the statute are:

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

Id. As a general proposition, the court’s division of marital property should be substantially equal unless one of the statutory factors renders such a division unjust. Riddell v. Riddell, 145 S.W.3d 495, 497 (Mo.App. W.D.2004). Marital debts should be similarly divided. Id. A trial court’s duty in a dissolution proceeding includes dividing “the marital property and marital debts in such proportions as the court deems just.” 452.330.1 RSMo. Division of the marital property need not be equal, “but [division of the marital assets] must be fair and equitable given the circumstances of the case.” Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App. W.D.2004). An appellate court’s review presumes that the trial court’s property division is correct, and the party challenging the division bears the burden of overcoming the presumption. Id. (citing Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002)).

Neither Mr. Travis nor Mrs. Travis requested that the trial court make findings of fact and conclusions of law. When neither party requests findings of fact and conclusions of law in accordance with Rule 73.01(c), fact issues upon which no specific findings are made are considered as having been found in accordance with the result reached. Rule 73.01(c); Childers v. Childers, 26 S.W.3d 851, 856 (Mo.App. W.D.2000). Although a court is ordinarily not required to assign property values, meaningful review of the division of marital property requires evidence from which a fair and accurate valuation can be made. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo.App.2003). Insufficient evidence of valuation constitutes grounds to remand the case with instructions for the trial court to take additional evidence and to make supported findings. See e.g. Endebrock v. Endebrock, 916 S.W.2d 456, 459 (Mo.App. E.D.1996).

Analysis of the trial court’s judgment reveals insufficient evidence for this court to properly determine the equity of the underlying award. Consequently, the judgment is reversed for reconsideration in accordance with the remainder of this opinion.

Equalization Payment

Mr. Travis asserts as his first point that the trial court improperly ordered him to pay $25,000 to his former wife as an equalization payment as a part of the division of the marital property and allocated to him the entirety of the marital debt, totaling approximately $82,123.53. He claims that the debt was incurred to pay the parties’ marital expenses and to purchase property in which Mrs. Travis acquired an interest. He asserts that Mrs. Travis is gainfully employed and capable of paying some of the debt.

Testimony regarding the value of property was virtually non-existent. The court determined the value of the marital and non-marital personal and real property items in accordance with various exhibits filed with the court, and the judgment awarded the parties the numerous items of marital and non-marital property referenced. The court declared the marital home, acquired by Mr. Travis prior to the marriage, to be non-marital property owned by Mr. Travis and awarded it to him. Although a value for each of the items of listed property is included in exhibits, the value of the items was totaled in neither the exhibits the court relied on nor the judgment, and, thus, none is provided on appeal. The personal property listed and categorized within the several exhibits is extensive, comprehensive, and diverse and includes such items as clothing, “jewelry and personal effects,” dishes, various furniture, motor vehicles, pots and pans, etc. Comparative values of the property awarded to each party were not provided at trial, and Mr. Travis does not complain about the actual distribution of the personal property. Review of the personal property items does not suggest significant variance in value between the items awarded to each party, and Mr. Travis does not assert a difference. Although the value of the distributed personal property as marital property might normally be a factor in determining whether the equalization payment is legally supportable, other evidence supports the court’s equalization award.

Mr. Travis’ complains that the portion of the judgment requiring him to pay the $25,000 equalization payment and the total existing marital debt are unjust and unsupported by the evidence. Significant in deciding to make the equalization award was the court’s apparent determination from the evidence that Mr. Travis secreted marital income in Bank of America accounts opened in Sedgwick, Kansas, while he was employed as a railroad employee. The bank records presented are of a checking and a savings account, both held by Mr. Travis in his name only. The 29-page record of the accounts shows that several thousand dollars were deposited into the accounts and several thousand dollars were withdrawn between March 19, 2008, and December 31, 2003. The records reflect monthly activity, and they show a maximum balance for the accounts at the conclusion of one month of over $12,000. Over $40,000 was deposited and withdrawn from the account during the accounting period. Mr. Travis did not testify how the funds were spent, and a summation of the activity of the . accounts, including the amounts deposited and withdrawn, was not otherwise presented at trial to further explain the accounts.

Other evidence also supports the equalization award. During the course of the marriage, Mrs. Travis liquidated two non-marital 401(k) plans totaling about $11,000 and spent the money to improve the marital home, awarded to Mr. Travis as his non-marital property. Fourteen thousand dollars of the fifty thousand dollar loan obtained during the marriage from the Bank of Weston and controlled by Mr. Travis was used to purchase a vehicle to replace Mrs. Travis’ vehicle, owned by Mrs. Travis prior to the marriage that Mr. Travis damaged after the parties were married. Mr. Travis titled the replacement vehicle in his name only. Eleven thousand dollars of the loan is unaccountable by Mr. Travis. The unaccounted for funds controlled by Mr. Travis, reimbursement for Mrs. Travis’ non-marital vehicle, the replacement vehicle titled in Mr. Travis’ name by him, and Mrs. Travis’ separate retirement funds contributed to maintain or improve the marital home, awarded to Mr. Travis as his non-marital property, justify the courts equalization award.

Allocation of Debt

Mr. Travis also complains of the portion of the court’s judgment that compels Mr. Travis to pay all the marital debt of the parties through February 28, 2003. The judgment articulates that the marital debt consists of debt owed by the parties to: Bank of Weston $15, 972, Community America Credit Union $15,000.00, Community America Credit Union $10,555.16, MBNA Quantum MasterCard $38,413.32, Sprint PCS $110.00, Sam’s Club $17.95, Sprint Home Phone $55.10, Capital One accounts totaling $3,000, and “Dick’s” account totaling $1,000. The total debt articulated is $84,123.53.

Marital debt is debt acquired subsequent to commencement of the marriage unless an exception applies. Rawlings, 36 S.W.3d at 798. Debt acquired in contemplation of marriage may also qualify as marital debt. Cross v. Cross, 30 S.W.3d 233, 236 (Mo.App. E.D.2000). The trial court is vested with broad discretion in dividing marital debt, and appellate authority will not disturb its division absent a clear showing of abuse of discretion. Rawlings, 36 S.W.3d at 798. An abuse of discretion occurs when a trial court’s ruling is “clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicates a lack of careful consideration. There is no abuse of discretion if reasonable persons could differ about the propriety of the trial court’s decision.” Cross, 30 S.W.3d at 236. One spouse may be assigned the primary duty to pay off the debt and hold the other spouse harmless for the debt. Rawlings, 36 S.W.3d at 798. “The fact that one spouse did not control or actively participate in the decision to incur a debt does not preclude its allocation to that spouse where it is determined to be marital debt.” Id. (quoting Wright v. Wright, 1 S.W.3d 52, 60 (Mo.App.1999)). Appellate authority defers to the trial court’s division of marital debts even if the evidence could support a different conclusion. Abbott v. Perez, 140 S.W.3d 283, 295 (Mo.App. E.D.2004).

Why the trial court allocated the $82,123.53 debt is unclear. The only evidence that can support the court’s allocation of debt is the same evidence that supports the court’s equalization award. Although the $25,000 equalization award may not totally compensate Mrs. Travis for the $33,000 hidden or squandered by Mr. Travis, the marital debt totals $83,123.53, far in excess of the $8,000 difference between the equalization award and the total amount of approximately $33,000 hidden or squandered. Just as no findings were made regarding the statutory factors in the property division, none were made regarding the division of the marital debt. Neither was an explanation provided for directing Mr. Travis to pay the substantial debt of approximately $75,000 ($83,123.53 minus the $8,000 difference between the equalization award and the amount secreted or squandered by Mr. Travis). The record does not disclose justification for allocating the entire marital debt to Husband. Without such a justification, this court is unable to determine the equity of the award.

Items designated both non-marital and marital; personal property awarded to both Husband and Wife

The judgment awards some items of personal property to both parties and provides that some property is both marital and non-marital. Several items of personal property, including an ice box, a microwave, a “bunk bed frame and mattress,” and a “green plaid divan and chair” were all designated as marital property, but the judgment awards the items to both parties. Mrs. Travis was awarded the “wine” in the judgment, but each party was allocated half of the wine collection in a later portion of the judgment. A 2000 Chevy truck, purchased during the marriage and titled to both parties, is designated Mr. Travis’ non-marital property. The judgment classifies other specific items of personal property as both non-marital and marital.

The deficiencies of the judgment preclude meaningful review of the court’s property division. Appellate review court cannot definitely rule “on issues that are subject to ambiguities and inconsistencies in the trial court’s judgment.” Baldwin, 109 S.W.3d at 249.

Qualified Domestic Relations Order

In his second point on appeal, along with noting deficiencies in the judgment discussed above, Mr. Travis alleges that the trial court erred by failing to designate a value for his Worldspan retirement account. The court’s judgment reads in relevant part:

d) The court finds that the portion of the Respondent’s World Span Retirement is marital, that being the portion acquired from the date of marriage the Petitioner Respondent and that all the Respondent’s Federal Express 401K plan and Federal Express Pension plan are marital. The marital portion of Respondent’s World Span Retirement and the entire Federal Express 401K plan and Federal Express Pension plan shall be divided between the parties on an equal basis as the date of the Decree, by virtue of Qualified Domestic Relation Orders and the Court obtain jurisdiction for purposes of implementing said Qualified Domestic Relation Orders.

Mr. Travis alleges that this portion of the judgment fails to include a finding of the value of the Worldspan account, which is necessary to implement the order. The judgment indicates that the marital portion of the Worldspan pension, a 401 (k) account, is to be divided equally among the parties. While no specific finding was made of the present value of the account, evidence does exist in the record from which this could be determined. While this lack of valuation may impact the trial court’s ability to assess the total fairness of the property award, it is not error to allocate such deferred compensation in terms of a percentage relationship. See Redlinger v. Redlinger, 111 S.W.3d 413 (Mo.App. E.D.2003). Because the judgment is being remanded for further consideration, the trial court should be permitted to consider the value of retirement account and to award its values, as it deems appropriate when attempting to equitably divide the property in its entirety.

Legal Fees

In his third and final point, Mr. Travis contends that the trial court abused its discretion in ordering him to pay $5,000 to Mrs. Travis as a portion of his legal fees.' The trial court is an expert regarding legal fees. Mitchell v. Mitchell, 711 S.W.2d 572, 580 (Mo.App. E.D.1986). A reviewing court reverses an award of legal fees- only if the trial court has abused its discretion in awarding them. Engeman v. Engeman, 123 S.W.3d 227, 240 (Mo.App. W.D.2003). Mr. Travis contends that in light of the overarching inequity of the trial court’s judgment, the legal fees are unreasonable enough to constitute an abuse of this discretion. Due to the inability to judge the equity of the judgment itself, this court is unable to discern whether the court’s award abused its discretion. 'Whether the award of attorney fees constitutes an abuse of the trial court’s discretion is not determined. Because the judgment is reversed and the case remanded, the portion of the judgment awarding $5,000 as attorney fees to Mrs. Travis is also reversed. Upon reconsideration of the judgment, the trial court should once again exercise its considerable discretion and again assess legal fees as the court deems appropriate and as provided by law.

The judgment is reversed, and the case is remanded for entry of a new judgment consistent with this opinion.

HARDWICK, P.J. and NEWTON, J. concur.


text:
    STATE of Missouri, Respondent, v. Jeremy Joseph WELLS, Appellant.
    No. WD 64046.
    Missouri Court of Appeals, Western District.
    May 24, 2005.

      Richard E. McFadin, Gallatin, MO, for Appellant.
    Julia R. Filley, Gallatin, MO, for Respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Jeremy Wells appeals from his conviction for leaving the scene of an accident in violation of Section 577.060, RSMO 2000. Upon review, we find substantial evidence in the record to support the conviction and, therefore, affirm the judgment. The parties have been provided with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 30.25(b).


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Douglas J. BRUMM, Defendant-Appellant.
    No. 26093.
    Missouri Court of Appeals, Southern District, Division Two.
    May 24, 2005.

      N. Scott Rosenblum, Mark W. Lyons, Clayton, MO, for appellant.
    Darrell L. Moore, Prosecuting Atty. of Greene County, Reggie L. Breshears, Asst. Prosecuting Atty., Springfield, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

Douglas Brumm (“Defendant”) was charged by amended felony information with committing the class B felony of assault of a law enforcement officer in the second degree, in violation of § 565.082. After a bench trial, Defendant was found guilty of the lesser-included offense of assault of a law enforcement officer in the third degree, which is a class A misdemeanor. See § 565.083; MAI-CR 3d 319.39. Defendant was sentenced to 180 days incarceration. Execution of the sentence was suspended, however, and Defendant was placed on two years probation and ordered to serve seven days of shock probation in the Greene County jail.

Defendant has appealed from the judgment and sentence on the ground that his conviction of third degree assault of a law enforcement officer violates the double jeopardy clause of the Fifth Amendment to the United States Constitution. Defendant claims his plea of guilty in another case to a misdemeanor charge of careless and imprudent driving barred his subsequent prosecution on the felony assault charge. We affirm.

I. Facts and Procedural History

Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewed in a light most favorable to the trial court’s judgment, the following facts were adduced at trial.

At around 1:30 a.m. on November 10, 2000, bicycle patrol officer Margaret Krull (“Officer Krull”) was standing beside her police patrol bike in front of the Git-N-Go store located at 609 E. Elm in Springfield, Missouri. The parking lot was brightly lit. Officer Krull was wearing a police bicycle uniform. It was “very clear” that she was a police officer because she was wearing a gun belt, a Springfield Police officer patch on her left lapel and each shoulder, a jacket with the word “POLICE” in big white fiorescent letters on it, and a helmet with the word “POLICE” on it. All of the patches and emblems were designed to be visible at night.

Officer Krull was with two other bicycle patrol officers: Darin Leonard (“Officer Leonard”); and David Vogt (“Officer Vogt”). Both of them were wearing the same type of uniform as Officer Krull. Officer Leonard was outside the store with Officer Krull. Officer Vogt was inside the store talking to the manager.

While Officers Krull and Leonard were standing in the store’s parking lot just to the east of the front double doors, they heard the squeal of tires and saw a white Dodge Dakota pickup truck pull into the Git-N-Go parking lot from Elm Street. The truck pulled in front of the double doors and stopped abruptly. Defendant was driving the pickup and had two other white males as passengers. Officer Krull made eye contact with Defendant. After the two stared at each other for a moment, Defendant started to back out of the space where he had just parked. As Defendant did so, the left front fender of his vehicle struck a white Jeep Cherokee that was parked beside Defendant’s truck. Defendant stopped his vehicle for a moment and watched the driver of the Jeep get out of his vehicle. Defendant then resumed backing up, traveled three or four truck lengths and stopped.

Officer Vogt came out of the store, and all three officers ran toward Defendant’s truck. They were trying to get Defendant out of his vehicle. Officer Krull positioned herself about three or four feet in front of the Dakota at the corner of the vehicle’s passenger side. She was standing in front of the vehicle’s right headlight where she was clearly visible to Defendant. Officer Krull held up her hand with the palm up in a “stop” gesture and yelled at Defendant to stop his engine and get out of the truck. Officer Vogt moved to the driver’s door, and Officer Leonard moved to the passenger side door so that the three officers were surrounding the vehicle. As Officer Krull was looking at Defendant, he accelerated forward. Officer Krull jumped backwards, and the truck hit her hand. The impact knocked her off balance, but she was able to stay on her feet. If she had not jumped aside, she would have been run over by the truck.

After Officer Krull regained her balance, she obtained the license number of the Dakota as Defendant was leaving the lot and heading north on Kimbrough. Officer Krull called dispatch and reported the incident as a “possible DWI.”

Officer Chad Hampton (“Officer Hampton”) was on patrol that morning and observed Defendant’s Dakota traveling southbound on John Q. Hammons Parkway. This street ends in a “T” intersection where it meets Grand Street. The truck failed to stop for a flashing red light at Grand Street and proceeded on southward. The vehicle jumped the curb, ran through a fence, knocked over several trees and entered a parking lot belonging to Southwest Missouri State University (“SMSU”). Officer Hampton watched Defendant exit his truck and try to dislodge a tree that was stuck under the vehicle. When Defendant was unable to do so, he got back in his truck and started driving directly at Officer Hampton, even though there were other routes Defendant could have taken to leave the parking lot. Officer Hampton had to draw his firearm in order to get Defendant to stop his truck. Officer Hampton then removed Defendant from the truck at gunpoint and placed him in custody.

After Defendant left the Git-N-Go, Officer Krull also had pursued the Dakota. She arrived at the SMSU parking lot, which was located at 915 E. Normal near* the intersection of Grand and Normal streets, after Defendant had been arrested by Officer Hampton. The truck had traveled approximately one mile from the Git-N-Go. When Officer Krull arrived at the SMSU parking lot, she observed that the Dakota had knocked over a tree and destroyed part of the fence before crashing into a parking median in the lot and blowing out a tire. Defendant was being held in the parking lot near his vehicle, and Officer Krull recognized him as the same person who was driving when the Dakota left the Git-N-Go parking lot. By checking the permit number on an SMSU parking tag hanging from the rear-view mirror, Officer Krull confirmed that the truck was registered to Defendant. Defendant was arrested for driving while intoxicated.

In December 2000, a felony complaint was filed against Defendant, and a warrant was issued for his arrest in case number 300CF11297 (“Case 11297”). He was charged with assault of a law enforcement officer in the second degree. In January 2001, a preliminary hearing was held, and Defendant was bound over for arraignment. Defendant waived his right to a jury trial on this charge. His trial commenced on September 18, 2002 before the Honorable Henry Westbrooke, Jr. (“Judge Westbrooke”). The prosecutor made an opening statement, and Officer Krull was sworn as a witness. After she had been asked a few questions, defense counsel moved to dismiss the case on the grounds of double jeopardy. Defendant’s motion was based on the following allegations.

At some point not disclosed by the record, misdemeanor charges had been filed against Defendant in the Circuit Court of Greene County, Missouri, in case number 301CM0170 (“Case 0170”). The amended misdemeanor information in Case 0170 contained two counts. Count I alleged that Defendant committed the misdemean- or offense of driving while intoxicated, in violation of § 577.010, “in that on or about the 10th day of November, 2000, at or near John Q. Hammons and Grand, in the County of Greene, State of Missouri, defendant operated a motor vehicle while under the influence of alcohol.” Count II alleged that Defendant committed the misdemeanor offense of careless and imprudent driving (“C & I”), in violation of § 304.012, “in that on or about the 10th day of November, 2000, in the County of Greene, State of Missouri, the defendant operated a motor vehicle on a public road or highway at or near 609 East Elm, in a careless and imprudent manner by jumping a curb, going through a parking lot and striking a tree, and thereby endangered the property of another or the life and limb of any person and was at that time involved in an accident.” In April 2002, Defendant entered a plea of guilty to the above charges in Case 0170. Sentence was imposed on August 29, 2002.

After summarizing these allegations for the court, defense counsel asked Judge Westbrooke to take judicial notice of the file in Casé 0170. Counsel also argued that, when Defendant pled guilty to the C & I charge in Count II, his guilty plea and the sentence later imposed were based on the events involving Officer Krull that took place at the Git-N-Go at 609 E. Elm. Counsel asserted the transcript of the guilty plea and the sentencing hearing would show this to be true, but he was having trouble getting a transcript of these tape-recorded hearings prepared by the Office of State Courts Administrator.

In response, the prosecutor denied defense counsel’s assertions were correct and pointed out that Defendant’s plea of guilty to the careless and imprudent driving in Count II related to the events that took place in the SMSU parking lot. The prosecutor explained that the reference in the amended misdemeanor information to “609 East Elm” as the location where these events took place was a typographical error:

As to Count 2, it’s interesting, I guess you could — apparently Mr. Brumm has pled to something which is not really accurate, but because clearly this incident deals with the second incident in the parking lot and not with our case.... I mean, clearly you have a different case here, you have a different victim.... If there was a victim in the second case, it’s Southwest Missouri State University, perhaps the City of Springfield that lost the tree, whatever it is. But you have different victims, you have different elements that you have to prove. We’re talking about an intentional assault with different facts at 609 East Elm. This [C & I] charge is actually an inaccurate charge in the sense that it’s too vague and it’s a different location altogether. It’s on the SMS campus.

After listening to oral argument, Judge Westbrooke stopped the trial, continued the case and took the motion to dismiss under advisement. On September 30, 2002, Judge Westbrooke entered the following order:

By Order of this Court, the State Court Administrator’s Office is to prepare the Plea of Guilty and Sentencing of the defendant Douglas J. Brumm in case number 301 CM 0170. This Court needs these two items transcribed in order to make a decision in the above style case number. Three copies shall be prepared and forwarded to the Court.

On April 7, 2003, the judge made a docket entry which states, in pertinent part, as follows: “The court has had an opportunity to review the transcripts of the plea and sentencing in the associate division of this court on the DWI and C & I charges. Deft’s motion to dismiss is denied.”

On April 18, 2003, Judge Westbrooke recused himself, and the case was reassigned to another circuit judge. The trial resumed on December 3, 2003 and resulted in the judgment and sentence from which Defendant now appeals.

II. Analysis

In Defendant’s sole point relied on, he claims the trial court erred in denying his motion to dismiss Case 11297 based on double jeopardy because Defendant had already been punished for the identical conduct when he pled guilty to the misdemeanor C & I charge. Defendant argues that he was twice convicted and punished for endangering the safety of the same person: Officer Krull. We review the trial court’s denial of Defendant’s motion to dismiss based on double jeopardy de novo. State v. Griffin, 28 S.W.3d 480, 481 (Mo.App.2000); State v. White, 931 S.W.2d 825, 828 (Mo.App.1996).

The double jeopardy clause of the Fifth Amendment to the United States Constitution states, in relevant part, that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The double jeopardy clause applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994). The double jeopardy clause provides “two distinct protections for criminal defendants: (a) protection from successive prosecutions for the same offense after either an acquittal or a conviction and (b) protection from multiple punishments for the same offense.” State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). It is the latter protection which is at issue here because Defendant claims he is being given multiple punishments for the same offense. Therefore, the relevant inquiry is whether the punishment imposed on Defendant because of his conviction for third degree assault on a law enforcement officer for nearly running over Officer Krull duplicates the punishment imposed on Defendant when he pled guilty to the C & I charge in Case 0170. If not, the trial court correctly denied the motion to dismiss because “multiple convictions are permissible if the defendant has in law and in fact committed separate crimes.” State v. Snider, 869 S.W.2d 188, 195 (Mo.App.1993).

The premise of Defendant’s double jeopardy argument is that: (1) he pled guilty to endangering the safety of Officer Krull when he entered his plea on the C & I charge; and (2) the sentence imposed in Case 0170 was based, at least in part, upon that conduct. We find no support for this argument in the record on appeal.

We note that the trial court granted Defendant’s request to take judicial notice of the court file in Case 0170. Judge Westbrooke also ordered that transcripts be prepared of the hearings concerning Defendant’s guilty plea and sentencing on the C & I charge. The judge did not rule on Defendant’s motion to dismiss until these transcripts were received and reviewed. As used in Defendant’s assault trial, these transcripts from the misdemeanor case are in the nature of exhibits because the documents contain evidentiary material that was received and reviewed by the trial court at the request of both parties. Defendant has failed to file these exhibits with this Court. It is the duty of an appellant to ensure “the record on appeal includes all the evidence and proceedings necessary for determination of the questions presented.” State v. Sumowski, 794 S.W.2d 643, 646 (Mo. banc 1990); see Rule 30.04(a); State v. Tobias, 873 S.W.2d 650, 654 (Mo.App.1994). Since these exhibits were not filed with this Court, we will infer that they would be favorable to the trial court’s ruling and unfavorable to Defendant’s argument. State v. Mitchell, 2 S.W.3d 123, 128 n. 2 (Mo.App.1999); State v. Creech, 983 S.W.2d 169, 171 (Mo.App.1998).

Without the transcripts of the guilty plea and sentencing to review, the only other document in the record on appeal which sets out the factual basis for Defendant’s C & I charge is the amended misdemeanor information in Case 0170. The information alleged, in pertinent part, that Defendant drove in a careless and imprudent manner “by jumping a curb, going through a parking lot and striking a tree, and thereby endangered the property of another or the life and limb of any person and was at that time involved in an accident.” The testimony at Defendant’s assault- trial unequivocally established that, after Defendant nearly ran over Officer Krull, he attempted to elude police. While being pursued, he ran a flashing red light at the intersection of John Q. Hammons Parkway and Grand Street, jumped a curb, ran through a fence, knocked down several trees, entered the SMSU parking lot at 915 E. Normal and wrecked his truck. These events occurred over a mile away from where the assault against Officer Krull had occurred. There was ample proof that: (1) Defendant did endanger the property, of another (SMSU and/or the City of Springfield) by destroying property at 915 E. Normal; and (2) Defendant did endanger the life or limb of another (Officer Hampton) by trying to run over the officer with Defendant’s truck.

The only allegation in the C & I charge that in any way related' to the incident at Git-N-Go was the reference to Defendant operating his truck “on a public road or highway at or near 609 East Elm.... ” The prosecutor, however, explained that the address reference in the C & I charge was a typographical error. Nothing in the record on appeal contradicts the prosecutor’s explanation.

Based on the record before us, the sentences imposed against Defendant in Case 0170, involving the misdemeanor C & I charge, and Case 11297, involving the third degree assault of a law enforcement officer charge, did not punish Defendant twice for the same offense of endangering the safety of Officer Krull. Therefore, the trial court properly denied the motion to dismiss. Defendant’s point is denied, and the judgment is affirmed.

SHRUM and BARNEY, JJ., concur.

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

      . Defendant is represented on appeal by a different attorney than the ones who represented him at trial.


author: JAMES K. PREWITT, Judge. ALMON H. MAUS, Senior Judge,

text:
    William H. WINCHESTER III, Petitioner-Appellant, v. Tanya E. WINCHESTER, Respondent-Respondent.
    No. 26352.
    Missouri Court of Appeals, Southern District, Division One.
    May 25, 2005.

      R. Scott Killen, John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, MO, for appellant.

      Michelle S. House-Connaghan, Gina Ca-salone, Green, Cordonnier & House, L.L.P., St. Louis, MO, for respondent.
   JAMES K. PREWITT, Judge.

William H. Winchester III (“Appellant”) appeals an order of the Circuit Court of Scott County reducing a prior award of maintenance to Tanya E. Winchester (“Respondent”) from $1500 per month to $900 per month. Appellant was also ordered to pay $3,250 for Respondent’s attorney fees.

Appellant and Respondent were married December 29,1968. One child was born to the marriage, however that child, Leslie, is now emancipated. In January of 1995, the marriage was dissolved, and Respondent was awarded $1500 per month in modifiable maintenance.

At the time of the dissolution, Respondent had no earned income and had not worked outside the home since 1973. She had a Bachelor of Science in education. Appellant was a practicing attorney.

Respondent relocated to Columbia, Missouri, in 1997, where she took a position as a part-time teacher. She was offered and accepted a full-time contract in 1998, with an annual salary of $35,088.00. Respondent had also inherited $110,000 after her mother’s death in 2001. This inheritance was placed in a money market account which now values $100,476.39. With benefits and dividend income included, Respondent’s annual income totaled $38,195.00. Her expenses totaled $3,196.62 per month. This figure does not include assisting the couple’s daughter, Leslie, with tuition to the Logan College of Chiropractic. Respondent claims a deficit in the amount of $832.20 per month.

Appellant learned of Respondent’s teaching contract and inheritance and filed a Motion to Modify Maintenance on July 15, 2003, requesting modification of the prior award. The Motion asks the court to find the prior award of $1500 monthly for maintenance unreasonable in light of substantial and continuing changes and requested that modification be made retroactive to July 15, 2003. Appellant declined to disclose his income at the time of filing. Instead, he stipulated that he was able to pay maintenance set forth at the 1995 level.

The trial court held that Appellant had met his burden in proving a substantial and continuous change in Respondent’s condition and ordered that the maintenance award be reduced from $1500 per month to $900 per month.

For his first point, Appellant states:

THE TRIAL COURT ERRED BY AWARDING CONTINUED MAINTENANCE TO RESPONDENT BECAUSE THE TRIAL COURT’S RULING IS AGAINST THE WEIGHT OF THE EVIDENCE AND MISAPPLIES THE LAW IN THAT THE EVIDENCE ESTABLISHED THAT RESPONDENT’S EMPLOYMENT INCOME AND INVESTMENT INCOME, EXCLUSIVE OF MAINTENANCE, HAVE ATTAINED A LEVEL AT WHICH RESPONDENT IS SELF-SUFFICIENT AND THEREFORE, AN AWARD OF MAINTENANCE IS NO LONGER WARRANTED.

Upon review of a motion to modify an award of maintenance, this court is limited to a determination of whether the trial court’s decision is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Weston v. Weston, 882 S.W.2d 337, 338-39 (Mo.App.1994). An appellate court will defer to the trial court on its decision to modify a maintenance award, even if the evidence could support a different conclusion. Gerecke v. Gerecke, 954 S.W.2d 665, 667 (Mo.App.1997).

Section 452.370.1, RSMo 2000 provides that an award of maintenance “may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” Changed circumstances sufficient to support modification of maintenance must be proven by detailed evidence. Laffey v. Laffey, 72 S.W.3d 143, 147 (Mo.App.2002). The party moving for modification of maintenance bears the burden of proving substantial and continuing change. Id. “[T]he concept of ‘change’ necessarily entails a departure from a known prior state or condition.” Fulp v. Fulp, 808 S.W.2d 421, 423 (Mo.App.1991). Further, ' “the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties[.]” § 452.370.1, RSMo 2000.

Appellant’s financial status is not in dispute. Appellant has stated that he is able to pay maintenance stipulated at the 1995 level. As earlier noted, Appellant introduced evidence to the trial court, including detailed legal documents from the dissolution decision to the current date, showing substantial and continuing change in Respondent’s income.

“[A]n increase in income does not automatically justify or require a modification of maintenance.” Sprouse v. Sprouse, 969 S.W.2d 836, 839 (Mo.App.1998) (internal quotations omitted). “The court must also consider whether there has been an increase in expenses, and other factors, in making its ultimate decision as to whether the spouse still needs financial assistance to meet her reasonable needs.” Id.

The trial court found that the record reflected a deficiency between Respondent’s monthly income and expenses. Considering Respondent’s salary and interest and dividends earned in 2003, her gross monthly income is $3182.92. Appellant did not dispute that Respondent’s reasonable monthly expenses amount to $3196.62. When such expenses are deducted from Respondent’s monthly income, the result is a deficiency in the amount of $13.70 per month. Respondent contended that, in addition, expenses should also reflect deductions for payroll and income tax deductions ($482.09), mandatory retirement fund contributions ($331.49) and professional dues ($14.92). The inclusion of these amounts as monthly expenses would result in a deficit of $832.20 per month. The trial court agreed with this calculation and modified the maintenance award to require Appellant pay to Respondent $900 per month.

Expenses related to Respondent’s teaching position were properly considered. The trial court found that “despite [Respondent’s] efforts to contribute to her own support[,]” there remains a deficit of $900 per month. Respondent remains dependent upon maintenance to meet her monthly expenses. Giving deference to the trial court, point one is denied.

For his second point, Appellant states:

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REDUCTION/ELIMINATION OF MAINTENANCE RETROACTIVE TO AUGUST 1, 2003 BECAUSE IT WAS AN ABUSE OF DISCRETION TO IGNORE THE WEIGHT OF THE EVIDENCE ESTABLISHING A SUBSTANTIAL CHANGE ON AUGUST 1, 2003 — THE DATE RESPONDENT SIGNED HER 2003-2004 TEACHING CONTRACT — IN THAT THE EVIDENCE DEMONSTRATED THAT THE SIGNING OF RESPONDENT’S 2003-2004 CONTRACT ELEVATED HER INCOME TO THE POINT WHERE SHE WAS SELF SUFFICIENT.

The retroactivity of a modification of maintenance and the date that modification occurs is within the sound discretion of the trial court. Gerecke v. Gerecke, 954 S.W.2d 665, 672 (Mo.App.1997). To prove an abuse of that discretion, Appellant must show that the ruling was clearly against the logic of the circumstances and arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Our examination of the record fails to reveal any such abuse.

There was little disparity between the annual and monthly income for the period the trial court had to consider. In view of the trial court’s consideration of Respondent’s separate incomes as well as her monthly incomes, there was no substantial disparity between any dates that the court had to select. In Dimmitt v. Dimmitt, 849 S.W.2d 218, 220 (Mo.App.1993), a similar argument was made by the appellant. On appeal, no abuse of discretion was found. Point II is denied.

Appellant’s remaining point states:

THE TRIAL COURT ERRED WHEN IT AWARDED RESPONDENT $8,250 AS ATTORNEY FEES BECAUSE IT WAS AN ABUSE OF DISCRETION TO AWARD RESPONDENT ATTORNEY’S FEES IN THAT: (1) RESPONDENT WAS ABLE TO PAY HER ATTORNEY’S FEES WITHOUT IMPAIRING OR IMPEDING HER ABILITY TO ACHIEVE AND MAINTAIN SELF-SUFFICIENCY; (2) THE MERITS OF THE CASE FAVORED APPELLANT AND A SIGNIFICANT PORTION OF TIME BILLED IN THE CASE INVOLVED A CLAIM WITHOUT MERIT; AND, (3) THE ACTIONS OF THE PARTIES REVEAL THAT RESPONDENT HIRED AN ATTORNEY AT RATES THAT ARE HIGHER THAN CUSTOMARY IN THE AREA, RESPONDENT PAID A $5,000 RETAINER, AND APPELLANT HAD, IN EFFECT, ALREADY PAID RESPONDENT’S ATTORNEYS FEES.

The awarding of attorney fees in a modification proceeding is within the sound discretion of the trial court. Scott v. Scott, 144 S.W.3d 921, 922 (Mo.App.2004). We presume an award of attorney fees to be correct and will reverse the trial court’s award “only when it is manifestly unreasonable.” Id. at 923. The trial judge is considered an expert on the question of attorney fees and “is presumed to know the character of services rendered regarding duration, zeal and ability, and to know the value of them according to custom, place, and circumstance.” McClain v. Papka, 108 S.W.3d 48, 54 (Mo.App.2003). To demonstrate an abuse of discretion, “the complaining party must show that the award was clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of deliberation.” Clark v. Clark, 101 S.W.3d 323, 330 (Mo.App.2003).

The trial court must consider all relevant factors in awarding attorney fees in a modification including the financial resources of both parties, the merits of the case, and the actions of the parties during the pendency of the action. Scott, 144 S.W.3d at 923. Section 452.355, RSMo 2000.

The Appellant’s financial circumstances are not at issue. Appellant argues that Respondent’s income and expenses since the dissolution require her to pay her attorney fees. The trial court noted a substantial change in Respondent’s income but still found a disparity between her income and expenses.

Since the trial court reduced but did not terminate maintenance, the court found some merit in the contentions of each party. Appellant further contends that an examination of the legal fees submitted by the Respondent’s attorney revealed a billing for research to determine whether or not a legal basis existed to warrant the filing of a “motion to determine sums due and owing,” attributable to matters related to the couple’s daughter’s graduate school expenses. Appellant refers to such expenses as “frivolous.” The Respondent does not dispute this suggestion, but counters that the trial court must have considered this matter as frivolous, since the $3,250 awarded to the Respondent was only half of the legal fees.

Finally, Appellant argues that Respondent’s selection of counsel was inappropriate in consideration of the amount billed. Appellant argues that Respondent sought to replace counsel local to the region with an attorney from St. Louis. Appellant argues that the $275 hourly rate charged to Respondent was excessive for a region (Southeast Missouri) that has an adequate legal community.

We know that there are many competent lawyers in that area. However, Appellant fails to acknowledge the reality of Respondent’s situation. Appellant is an Associate Circuit Judge in Southeast Missouri, which may cause some attorneys to be reluctant to represent Respondent. We find no abuse of discretion in the award of attorneys fees. Point III is denied.

The judgment is affirmed.

RAHMEYER, Judge, concurs.

MAUS, Senior Judge, concurs in separate opinion.

ALMON H. MAUS, Senior Judge,

concurring.

I concur in the principal opinion upon the basis expressed therein. I would also affirm the Judgment of the trial court upon the following basis.

Section 452.335, RSMo 2000 provides that a trial court, in awarding maintenance at the time of a dissolution, shall consider all relevant factors, including the comparative earning capacity of each spouse, the standard of living established during the marriage, the duration of the marriage and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Section 452.370, RSMo 2000, which governs the modification of maintenance in subsequent proceedings, includes the following limitation:

[T]he provisions of any judgment respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.... [T]he Court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties ....

(emphasis added).

Common sense requires the court, in determining the amount of maintenance, should balance the ability of a spouse to pay against the needs of the other spouse. That is the mandate of the statutes. Laffey v. Laffey, 72 S.W.3d 143 (Mo.App. W.D.2002); In re Marriage of Baker, 986 S.W.2d 950 (Mo.App. S.D.1999). If the Appellant had the wealth of Bill Gates, he should not be heard to complain about the maintenance originally awarded the Respondent.

It is obvious that a trial court cannot adequately balance the ability to pay against need unless each party discloses his or her assets and income. By not doing so, the Appellant prevented the Respondent from adequately considering if she should seek an increase in maintenance. To approve the Appellant’s position is to permit him to create a new category of privileged information. It prevented the court from considering “all financial resources of both parties” as mandated by Section 452.370, RSMo 2000.

Had the Respondent appealed, I would, because the Appellant prevented the court from considering all the assets of both parties as required by the statute, reverse the judgment reducing maintenance. She did not. So, I concur in affirming the judgment continuing maintenance in a reduced amount.


author: KENNETH W. SHRUM, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeffrey Paul SMITH, Defendant-Appellant.
    No. 26442.
    Missouri Court of Appeals, Southern District, Division Two.
    May 27, 2005.

      Irene Earns, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Office of the Attorney General, Columbia, for respondent.
   KENNETH W. SHRUM, Judge.

After a bench trial, Jeffrey Paul Smith (“Defendant”) was found guilty of robbery in the first degree (§ 569.020) and armed criminal action (§ 571.015). On appeal, Defendant alleges there was insufficient evidence adduced at trial to support his convictions. We disagree. We affirm.

STANDARD OF REVIEW

Because Defendant challenges the sufficiency of the evidence, we must accept as true all evidence favorable to the State, including all favorable inferences that may be drawn from the evidence while disregarding all evidence and inferences to the contrary. State v. Withrow, 8 S.W.3d 75, 77 (Mo.banc 1999). We limit our review of a challenge to the sufficiency of the evidence supporting a criminal conviction to a determination whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Charlton, 114 S.W.3d 378, 384[9] (Mo.App.2003).

All favorable inferences used to support the verdict must be logical, reasonable, and drawn from established fact. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App.2003). “In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense.” State v. Dixon, 70 S.W.3d 540, 544[5] (Mo.App.2002).

FACTS

On November 10, 2002, Paul Nation (“Victim”), who was eighty-seven years old, was robbed. Earlier that day, Defendant drove Rachel Haynes to Victim’s home so that she could borrow money from Victim. Haynes obtained some money, and Defendant then drove her back to their apartment complex.

Later that evening, Defendant and Haynes returned to Victim’s home. Upon arrival, both he and Haynes walked to Victim’s door and made contact with Victim. Haynes then asked to use Victim’s phone, and he agreed. In a statement made to the police, Defendant claimed that he remained at the doorway when Haynes went into the kitchen with Victim to use his phone. He stated that “Haynes suddenly produced a tire tool style metal object and began striking [Victim] over the head with it.” Victim testified, however, that he was struck by a male. Victim claimed that “the guy was sitting at my kitchen table and up and pulled ... some kind of a car stick or something and hit me over the head with it.” The evidence showed that Defendant was the only male at the house besides Victim.

Victim also testified that before the “guy” hit him in the head, his (Victim’s) wallet was in his pocket. As a result of the assault, Victim was “kind of knocked out.” Afterward, however, his “wallet was laying on the table with a five dollar bill on it, and everything else was gone.” Continuing, Victim told the judge: “I don’t know why he [the assailant] left [$5.00 in his wallet]. Make me think he hadn’t robbed me, I guess.” (Emphasis supplied.)

The investigating officer (“Brown”) learned that Defendant owned the Ford Explorer vehicle used by Defendant and Haynes to get to Victim’s house. Because of Victim’s and Defendant’s assertions that a tire tool was the assault weapon and based on Defendant’s statement that Haynes suddenly produced a tire tool inside Victim’s house, Brown decided to check Defendant’s vehicle to see if it contained a tire tool. His search failed to uncover a tire tool in Defendant’s Explorer. Brown testified there “was a storage area for the tools in the rear storage compartment in ... the vehicle. And there are factory ... placed clips that hold the tire iron in place. And there was no tire iron in those clips. And there was no tire iron ... in the vehicle that I found.” Brown also explained that to remove the tire iron from its storage area inside the Explorer, a person would have to climb over the vehicle’s seats and then “remove the plastic cover for the storage area.” When Brown asked Defendant about the missing tire tool, Defendant answered, “he had no idea[;] [h]e didn’t know about it[;] didn’t know where it was.”

After the assault, Defendant and Haynes left the scene of the crime, either separately or together in Defendant’s vehicle. Sometime after the crime occurred, but later that evening, Defendant was arrested for the robbery. After a bench trial, the judge found Defendant guilty of first-degree robbery and armed criminal action. This appeal followed.

APPLICABLE STATUTORY PROVISIONS

A person commits the crime of robbery in the first degree when, inter alia, he or she forcibly steals property, and in the course thereof, the person or another participant in the crime (a) causes serious physical injury to any person or (b) uses a deadly weapon or a dangerous instrument in committing the crime. § 569.020.1(1-4). In the factual context of this case, the term “forcibly steals” is defined as using or threatening the immediate use of physical force upon another person for the purpose of preventing resistance to the taking of property of another person. § 569.010(1). Armed criminal action is committed when any person commits any felony “by with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.” § 571.015.1.

DISCUSSION AND DECISION

In his only point on appeal, Defendant alleges the trial court committed reversible error “in overruling [his] motion of judgment of acquittal.” He argues that the evidence was insufficient to show “that it was [Defendant] who struck [Victim] and took money from his wallet, or that he was guilty of those offenses as an accomplice.” This sufficiency of the evidence claim is premised on Defendant’s argument that the trial court relied on “inadmissible hearsay testimony [from a police officer] informing [him] that Rachel Haynes accused [Defendant of the crime].”

The “inadmissible hearsay” alluded to in Defendant’s point involves certain testimony of the investigating officer (Brown). He testified that on November 10, 2002, he was sent to investigate a reported robbery at Victim’s house. Upon arriving, he saw blood flowing from lacerations on Victim’s scalp. Victim was conscious, however, allowing Brown to speak with him briefly. When Brown attempted to testify as to what Victim told him, defense counsel objected that such statements constituted hearsay. The court sustained this objection.

The prosecutor then asked Brown if Victim named who he believed assaulted him, and again, defense counsel objected on hearsay grounds. The court likewise sustained this objection. Thereon, Brown testified that Victim was taken to a hospital for treatment. Before following Victim to the hospital to talk with him further, he found Victim’s wallet on the kitchen floor.

Without objection, Brown next testified to the following, which forms the basis of Defendant’s hearsay claim. After speaking with Victim at the hospital, Brown “went to a secondary location to locate the first suspect in the crime.” This “first suspect” was Rachel Haynes. After talking with Haynes, Brown developed another suspect, namely Defendant. After contacting Defendant at his home, he arrested Defendant and informed him of his constitutional rights per the Miranda warnings. After Defendant waived his rights, Brown questioned him about his involvement in the robbery of Victim.

From the foregoing, Defendant argues reversible error resulted when the State was allowed to introduce inadmissible “inferential hearsay.” See State v. Valentine, 587 S.W.2d 859 (Mo.banc 1979). As we understand it, Defendant would have us characterize as “inferential hearsay” Brown’s testimony that his interview with Victim at the hospital led him to his first suspect (Haynes) and that his discussion with her led him to his second “suspect,” Defendant. With that as his premise, Defendant relies on Valentine to urge reversal, arguing that without this so-called inadmissible “inferential hearsay,” the State failed to make a submissible case. We disagree for multiple reasons.

First, Defendant failed to object to that part of Brown’s testimony which he claims was impermissible “inferential hearsay.” Specifically, Brown’s testimony that his interview with Victim led him to Haynes which in turn led him to Defendant came in without objection. “Inadmissible hearsay that goes in the record without objection may be considered by the fact-finder in determining the facts.” State v. Crawford, 68 S.W.3d 406, 408[8] (Mo.banc 2002).

Second, if defense counsel had timely objected to what Defendant now characterizes as inferential hearsay, no error would have resulted from overruling the objection. This follows because the alleged inferential hearsay testimony fails to meet the Valentine criteria, i.e., Brown’s testimony “by clear inference, showed that [Haynes] had implicated the defendant in the offense” against Victim. See note 2. The essence of the Valentine decision was that there was no other way for the police to (so quickly) suspect the defendant other than through the co-conspirator’s statements. That is not the situation here.

In this case, Brown unequivocally testified that his probable cause to arrest Defendant came from sources in addition to the information he learned from Haynes. Specifically, Brown testified that his decision to arrest Defendant was “[b]ased on the totality of the circumstances, what I observed when I first arrived [at Victim’s home], the injuries to the victim ... his statement ... the statements of Ms. Haynes.” From this, other reasonable inferences could be drawn besides the possibility that Haynes implicated Defendant in the offense against Victim. Thus, it is just as reasonable to infer that Haynes admitted both she and Defendant were at Victim’s house, but that they only used his telephone and borrowed money from him. It is also reasonable to infer, from this and Victim’s statement and appearance, that once Haynes placed Defendant and her at Victim’s house, Brown opted to arrest both Haynes and Defendant in an effort to learn which one (or both) committed the crime.

When different inferences can be drawn from the evidence, the Valentine inferential hearsay rule does not attend. State v. Lee, 841 S.W.2d 648, 652-53 (Mo. banc 1992); State v. Sykes, 611 S.W.2d 278, 281-82 (Mo.App.1980). That is the situation revealed by this record; consequently, Defendant’s claim that inadmissible hearsay is the only way the State made a submissible ease lacks merit.

Third, assuming arguendo, that the alleged inferential hearsay should have been omitted if objected to, reversal would follow only if admission of such evidence prejudiced Defendant. “On direct appeal, this Court will review the trial court’s determination not for mere error, but for prejudice and will reverse the conviction only if the error is so prejudicial as to deprive the defendant of a fair trial.” State v. Dismang, 151 S.W.3d 155, 161 [4] (Mo.App.2004). Because this is a court-tried case, we presume the trial judge disregarded any improperly admitted evidence in reaching the verdict. State v. Clay, 909 S.W.2d 711, 716 (Mo.App.1995); State v. Rank, 849 S.W.2d 230, 232-33 (Mo.App.1993). Consequently, “[wjhere a judge, rather than a jury, is the trier of fact, the reviewing court presumes that inadmissible evidence is not prejudicial.” State v. McMillin, 783 S.W.2d 82, 96 (Mo. banc 1990).

Accordingly, the question becomes: Was there ample evidence from which the trial judge could have found each element of the crimes beyond a reasonable doubt without considering what Defendant characterizes as inferential hearsay? We answer, “yes.” The trial judge reasonably could have inferred that the only persons present at the time of the robbery were Victim, Haynes, and Defendant. Based on Victim’s testimony that the “guy” sitting at his table was the one who hit him with the tire iron, the court also reasonably could have inferred that it was Defendant who struck Victim, not Haynes as Defendant asserted. Additionally, Victim testified repeatedly that it was “he” (the “guy”) who took all his money and papers, except five dollars. On that point, Victim’s testimony was consistent.

Although Victim had trouble hearing questions at the time of trial and obviously had memory problems, he was clear on one crucial issue, namely, that a “guy hit me on the head and took my money.” (Emphasis supplied.) Victim’s certainty on this point, coupled with other evidence and reasonable inferences that could be drawn therefrom (as outlined above), was sufficient to support a conviction of Defendant for first-degree robbery and armed criminal action. As such, Defendant cannot show prejudice from any alleged error in the admission of evidence. Such error, if any, was immaterial to the merits of the action; consequently, the judgment must be affirmed. Rule 84.13(b). Point denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J„ concur.

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

      . The inferential hearsay rule is one of limited application. It is generally involved in cases wherein there are co-conspirators or co-actors in a crime. Valentine, 587 S.W.2d at 860-61. Thus, when a witness — such as an investigating officer — attempts to testify that after talking with the co-actor, he or she applied for a warrant against the co-actor and no other testimony inculpates this person, the "warrant application" testimony should be excluded (upon timely objection) as impermissible hearsay. Id. In explaining this, the Valentine court quoted from State v. Edwards, 435 S.W.2d 1, 6 (Mo.1968), as follows:
      " '[TJestimony which, by clear inference, showed that an alleged accomplice had implicated the defendant in the offense involved, was just as much hearsay and objectionable as the implicating statement itself would have been.... [T]he extrajudicial statement of a third person [that] was attempted to be used as evidence of the guilt of the accused, [is] a clear-cut hearsay violation.’ ”

        Valentine, 587 S.W.2d at 861.

      . When offering the challenged testimony, the prosecutor told the trial court that it was not being offered for the truth. In fact, the concern of defense counsel at trial was the content of the statements, not any alleged inferential hearsay risk. On this record, the general rule is applicable, i.e., the testimony was merely offered to show the officer’s subsequent conduct which is admissible. State v. Edwards, 116 S.W.3d 511, 532-33 (Mo.banc), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004).