author: JOSEPH M. ELLIS, Judge.

text:
    In the Matter of Mildred Ruth DUVALL, Respondent, Missouri Department of Health and Senior Services, Respondent, Glenda L. Winkler, Public Administrator of Randolph County, Missouri, Respondent, v. D. Lynn Duvall and Norman Staley, Appellants.
    No. WD 64464.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Application for Transfer Denied Dec. 22, 2005.

      Daniel R. Dunham, Columbia, MO, for appellants.
    Yvette Hipsldnd, St. Louis, Patricia Watkins, James M. McCoy, Co-Counsels, Jefferson City, MO, for respondents Department of Health and Human Services.
    Phillip C. Brown, Moberly, Dale L. Linneman, Co-Counsel, Keyetesville, MO, for respondent Duvall.
    Glenda L. Winkler, Moberly, MO, pro se.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

This is an appeal from an August 4, 2004 final judgment and order of the Probate Division of the Circuit Court of Randolph County granting a petition declaring Mildred Ruth Duvall (“Ruth”) totally incapacitated and legally disabled and appointing the Public Administrator of Randolph County as the guardian of her person and the conservator of her estate. We affirm.

On October 9, 2002, the Department of Health and Senior Services received a hotline call regarding Ruth with allegations that she was being financially exploited by a nephew. The Department initiated an investigation and Cindy Smith (“Smith”), a Department employee, was assigned by the Director of the Department to conduct it. By the conclusion of her investigation, Smith reported numerous concerns about Ruth’s care and welfare, not the least of which was that Ruth would be discharged from her skilled care facility because of accumulated unpaid charges for her care, and consequently would suffer serious physical harm. Among other things, Smith was also concerned: (1) that Ruth would lose her eligibility for Medicaid, which paid for much of her care, because of various property transfers arranged by Ruth’s deceased husband’s nephew, D. Lynn Duvall; (2) that Ruth was being financially exploited and her estate subjected to waste; (3) that Ruth would suffer possible physical harm because she was not receiving the prescription drug Exelon as recommended by her doctor; and (4) that Ruth’s assets were not being used to pay for her needs and expenses.

As a result of the investigation, on July 11, 2003, Smith filed a Petition for Appointment of Guardian and/or Conservator, seeking appointment of the Randolph County Public Administrator as Ruth’s guardian and conservator. On August 28, 2003, the probate court appointed Attorney Phillip Brown (“Attorney Brown”) to represent Ruth in the proceedings on the petition.

On October 20, 2003, the court ordered that Ruth undergo a physical and mental examination and authorized Dr. Syid Rash-id to conduct it. On October 22, 2003, Dr. Rashid performed the examination, and, in an affidavit filed on October 24, 2003, opined that, to a reasonable degree of medical certainty, Ruth suffered from dementia and was unable to receive and evaluate information or communicate decisions to such an extent that she lacked the capacity to meet essential requirements for food, clothing, shelter, safety, and other care such that serious physical injury, illness, or disease was likely to occur. Dr. Rashid’s affidavit also stated that Ruth lacked the capacity or ability to manage her financial resources, could understand neither her rights nor the nature or consequences of the proceedings, would not be able to effectively participate in a hearing, and that her mental and physical condition would continue to deteriorate in the future. In particular, Dr. Rashid opined that Ruth was incapable of understanding and making an informed decision concerning her rights to be represented by an attorney of her choice as opposed to a court-appointed attorney, to a jury trial, to present evidence on her behalf or to remain silent, to cross-examine the witnesses against her, to have the hearing open or closed at her election, or to be present at a hearing.

On November 7, 2003, interested persons D. Lynn Duvall (“Lynn”) and Norman Staley, collectively referred to as “Appellants,” filed objections to the petition, followed by a flurry of other pretrial motions, including a Motion to Dismiss and alternative Motion to Strike (November 7, 2003), Supplemental Objections to Petition and Second Motion to Dismiss (January 16, 2004), and a Third Motion to Dismiss (June 29, 2004, overruled on July 6, 2004). On December 12, 2003, Appellants also filed their own Petition for Appointment of Guardian and Conservator with the probate court, which they subsequently voluntarily dismissed without prejudice on January 21, 2004, after service on Ruth by the Randolph County Sheriffs office on January 6, 2004.

On July 9, 2004, Attorney Brown filed a Waiver with the probate court in which he waived Ruth’s rights to a jury trial and to attend any hearings inasmuch as he concurred with Dr. Rashid’s assessment that, due to her physical and mental condition, Ruth would be unable to understand and assist with the proceedings in any meaningful way. Thereafter, on July 23, 2004, the court conducted an evidentiary hearing, during which Attorney Brown explained to the court that although he had met with her several times, Ruth “could not communicate with [him] in any manner, including identifying Lynn Duvall or where she was at.” At the conclusion of the hearing, the probate court issued its Judgment of Incapacity and Disability and Order Appointing Guardian and Conservator, finding Ruth to be totally incapacitated and legally disabled. The court also found that Smith and Attorney Brown had established “good cause shown” under section 475.050 not to appoint Lynn as the guardian of Ruth’s person and the conservator of her estate, so the court appointed the Public Administrator of Randolph County instead, as requested in the petition. Finally, the probate court ordered that costs and $5,459 in attorney’s fees were to be paid from the conservatorship estate. This timely appeal followed. Any additional facts necessary to disposition of the appeal will be supplied as needed later in this opinion.

At the outset, we note that on May 2, 2005, before this case was submitted, Appellants notified this court that Ruth died at Loma Linda Health Care in Moberly on April 26, 2005, attaching a certified copy of her death certificate to their “Suggestion of Death of Mildred Ruth Duvall and Motion for Review, Remand and Mandate to Vacate and Dismiss Proceedings for Lack of Jurisdiction.” The same day, opposing counsel filed a “Motion to Dismiss Appeal as,Moot.” We took both motions with the case.

“A threshold question in any appellate review of a controversy is the mootness of the controversy.” State ex inf. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo.banc 2001) (internal quotation marks omitted). Appellants bring six points on appeal. Four of them (Points I, II, III, and V) purport to advance claims that the probate court lacked jurisdiction to enter the judgment and order, while the other two (Points IV and VI) raise substantive challenges to the court’s actions. Although they request a full review of all six points on appeal, in their motion, Appellants further suggest that, at a minimum, this court should review those points raising jurisdictional issues and subsequently issue an order of vacatur to the extent we were to hold the probate court’s final judgment and order to be void for lack of jurisdiction. In contrast, Smith’s motion requests that we dismiss the appeal in its entirety, citing authority from foreign jurisdictions holding that in general, when a ward or protectee dies during the pendency of an appeal, reversal or affirmance of the probate court’s judgment of incapacity or disability becomes merely advisory and the appeal presents only moot questions.

We agree with Appellants that Ruth’s death during the pendency of this appeal does not render moot the purported jurisdictional issues raised in Points I, II, III, and V of their brief, because if any of them were found to have merit, the probate court’s judgment and order would both be void ab initio and vacatur would be appropriate. See, e.g., State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669, 673 (banc 1946) (noting that where a court renders judgment without jurisdiction of the parties or the subject matter, the judgment is null and void ab initio and a motion to vacate is a proper remedy).

Points IV and VI are a different story, however. In Point IV, Appellants claim that Ruth received substandard representation throughout the guardianship and conservatorship proceedings from her court-appointed counsel, Attorney Brown. They also argue that the probate court erred in appointing Brown to represent Ruth since he had a conflict of interest. In Point VI, Appellants contend the probate court erred in appointing the Public Administrator of Randolph County as the guardian of Ruth’s person and the conservator of her estate because the court should have appointed one of them as guardian and conservator instead.

With regard to Point IV, since any statutory or constitutional right Ruth may have had to effective assistance of counsel during the guardianship and con-servatorship proceedings died with her, any decision by this court on that claim would not have any practical effect upon any now-existing controversy. Moreover, Ruth’s death made any decision by this court as to the quality of representation she received during those proceedings, or whether Attorney Brown should have been appointed as her attorney, wholly unnecessary. Likewise, as to Point VI, it is now also unnecessary for us to decide whether the probate court erred in failing to appoint either of the Appellants as the guardian of Ruth’s person and the conservator of her estate. Indeed, as we “do not decide questions of law disconnected from the granting of actual relief,” State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998), any such determination on the merits of Point VI would be merely hypothetical or advisory. Accordingly, both Points IV and VI are moot. See Reed, 41 S.W.3d at 473.

Appellants nevertheless argue that Points IV and VI are not moot because they “affect whether the costs of the underlying proceeding, including court appointed attorney fees, are valid claims against the [conservatorship] estate, and the necessity and authority of the purported conservator to wind up the conservator-ship estate and make a final settlement under statutes applicable to conservators upon the death of their protectees.” However, none of those things are at issue in this appeal inasmuch as it would be meaningless to appoint another conservator at this point and neither Point IV nor Point VI assign as error the probate court’s decision to order payment of costs and attorney’s fees from the conservatorship estate.

In the alternative, Appellants also argue that Points IV and VI should be decided due to their public interest and importance and the likelihood those issues will recur while consistently evading appellate review. Although appellate courts have “discretion to review a moot case when the case presents an unsettled legal issue of public interest and importance of a recurring nature that will escape review unless the court exercises its discretionary jurisdiction,” this exception to the mootness doctrine is narrow. Chastain, 968 S.W.2d at 237. “If an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of appellate review, then the ‘public interest’ exception does not apply.” Id. As we “do not believe that subsequent cases presenting some or all of the same issues [raised in Points IV and VI] will necessarily evade this court’s scrutiny,” id. at 239, we decline to exercise our discretion to review them. Accordingly, both motions are granted in part and denied in pai’t. See, e.g., Smith v. State ex rel. Rambo, 30 S.W.3d 925, 929-30 & n. 8 (Mo.App. S.D.2000) (concluding that three points were moot but addressing the one remaining viable issue); Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 560 (Mo. App. E.D.2001) (declining to adjudicate the issues that had become moot but deciding the remainder of the case).

“Review of the appointment of a guardian or conservator is governed by Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the comí is affirmed unless: (1) no substantial evidence supports it; (2) it is against the weight of the evidence; or (3) it erroneously declares or applies the law.” In re Beyersdorfer, 59 S.W.3d 523, 525 (Mo. banc 2001). This court will set aside the judgment of the probate court on the ground that it is against the weight of the evidence “only when we have a fern belief that the judgment is wrong.” In re Turnbough, 34 S.W.3d 225, 227 (Mo.App. E.D. 2000). We give due regard to the probate court’s opportunity to judge the credibility of witnesses and to disbelieve the testimony of any witness, even when it is uncon-tradicted, because it is in a better position than this court “to resolve their sincerity, character, and other trial intangibles that may not be shown by the record.” In re Moreau, 18 S.W.3d 447, 449 (Mo.App. S.D. 2000). Moreover, we observe that none of the parties requested that the probate court make specific findings of fact or conclusions of law, and only those required by statute were issued. “All other factual issues are, therefore, deemed to have been found in accordance with the result reached, and the judgment must be affirmed under any reasonable theory supported by the evidence.” In re Brown, 710 S.W.2d 402, 403 (Mo.App. E.D.1986).

In Point I, Appellants contend that the probate court lacked subject matter jurisdiction to enter its final judgment of incapacity and disability and order appointing a guardian and conservator because the petitioner lacked statutory standing or authority to initiate the proceeding. We disagree.

Section 475.060 provides that “[a]ny person may file a petition for the appointment of himself or some other qualified person as guardian of a minor or guardian of an incapacitated person.” Likewise, section 475.061.1 states that “[a]ny person may file a petition in the probate division of the circuit court of the county of proper venue for the appointment of himself or some other qualified person as conservator of the estate of a minor or disabled person.” Section 475.061.2 permits a petition for the appointment of a conservator to be combined with a petition for the appointment of a guardian.

The “Petition for Appointment of Guardian and/or Conservator” filed by Smith begins as follows: “COMES NOW Petitioner Cindy Smith, SSW, Randolph County Department of Health and Senior Services, Division of Senior Services, and states: ...” The petition is signed by Smith, and prays that various forms of relief be granted to “Petitioner.” As clearly shown on the face of the petition, the “Petitioner” in this matter is Smith. The probate court ruled that since Smith is a natural person, she was authorized to file her combined Petition for Appointment of Guardian and/or Conservator in this matter pursuant to sections 475.060, 475.061.1, and 475.061.2.

Appellants claim this ruling was erroneous, arguing that although “Cindy Smith could have filed a petition under Chapter 475 in her individual capacity as a ‘person,’ ” she “did not do so.” Pointing to Paragraph 8 of the petition, which states: “The Division of Senior Services is authorized to bring this request pursuant to Section 660.285 RSMo.2000,” Appellants contend that in filing the petition, Smith was acting in her official capacity as a designee of the Director of the Missouri Department of Health and Senior Services, not in her capacity as a natural person.

Although this is a somewhat creative approach to the issue, we find it unpersuasive because it ignores section 475.085.1, which clearly indicates that “a public employee acting in his official capacity” is a “person” entitled to file a petition under Chapter 475:

The costs of proceedings as to incapacity or disability of any person shall be paid from his estate if he is found incapacitated or disabled or, if his estate is insufficient, costs shall be paid by the county; but if the person is found not to be incapacitated or disabled the costs shall be paid by the person filing the petition, unless he is a public employee acting in his official capacity, in which case the costs shall be paid by the county.

§ 475.085.1 (emphasis added).

Appellants further argue that even if Smith was a “person” under sections 475.060 and 475.061.1, she still lacked authority to file the petition because section 660.285.1 trumps those statutes and there was insufficient evidence that the investigation conducted by Smith resulted in a determination that Ruth’s situation presented a “likelihood of serious physical harm” as that phrase is defined in sections 660.250(10)(a)-(d). In support of this argument, Appellants cite State ex rel. Foltz v. Ahr, 666 S.W.2d 777 (Mo.App. W.D.1983). In Foltz, this court held that, where several statutes under consideration concern the same subject matter, they are in pan materia and must be construed together even if found in different chapters. Id. at 780. “If possible, effect must be given to each clause and where one statute deals with a subject in general terms and another in specific terms, the two should be harmonized when reasonable, but to the extent of any discord, the definite statute prevails.” Id.

Foltz is of no assistance to Appellants, as there is no irreconcilable discord between section 660.285.1 and sections 475.060 and 475.061.1. All section 660.285.1says is that the Director or his or her designee may initiate proceedings under Chapter 475 if the Director or his or her designee “determines after an investigation that an eligible adult is unable to give consent to receive protective services and presents a likelihood of serious physical harm[J” It does not say that those are the only circumstances under which the Director or a designee thereof may initiate Chapter 475 proceedings, or that the Director or designee is not a “person” under sections 475.060 and 475.061.1 unless the investigation-related conditions of section 660.285.1are also met. Thus, we cannot agree with Appellants that section 660.285.1deprives a natural person who files a petition seeking the appointment of a guardian or conservator of the authority to file the petition under sections 475.060 and 475.061.1 merely because he or she may have filed the petition as a designee of the Director and the investigation did not result in an explicit determination that a particular eligible adult’s situation presented a likelihood of serious physical harm. To adopt Appellants’ position would be to hold that the phrase “any person” in sections 475.060 and 475.061.1 actually means “any person except one who is acting as a designee of the Director of the Missouri Department of Health and Senior Services where the investigation-related provisions of section 660.285.1 have not been met.” We decline to undertake this exercise in judicial interpolation, as it is not required by the language of section 660.285.1 and it is entirely reasonable to harmonize the statutes by holding, as we have, that the phrase “any person” as used in sections 475.060 and 475.061.1 means exactly that— every natural person or corporation, without limitation or restriction. Point denied.

In Point II, Appellants argue that the probate court lacked subject matter jurisdiction to enter its final judgment of incapacity and disability and order appointing a guardian and conservator because the petition was fatally defective in that it (1) was not verified as required by section 472.080.1; and (2) did not aver Ruth’s age; her parents’ names, ages and addresses and whether they are living or dead; and the reasons why the appointments were sought, as required by sections 475.060 and 475.061.1. We disagree.

Section 472.080, which has been in effect in its current form since January 1, 1981, and is made applicable to guardianships and conservatorships by section 475.020, provides:

1. Except as otherwise specifically provided in this code or by supreme court rule, every document filed with the court under this code, including but not limited to applications, petitions, claims and demands for notice, shall be signed by or on behalf of the petitioner or claimant, and shall contain a statement that it is made under oath or affirmation and that its representations are true and correct to the best knowledge and belief of the person signing same, subject to the penalties of making a false affidavit or declaration.
2. No defect of form or substance in any document invalidates any proceedings after judgment on the document.

The record shows that although she signed it, the petition filed by Smith was not verified as required by section 472.080.1. It also shows that Appellants brought this issue to the probate court’s attention by way of pretrial objections to the petition and a motion to dismiss. Although Appellants claim that Smith’s failure to file a verified petition deprived the probate court of subject matter jurisdiction to adjudicate it, they cite no authority whatsoever for this proposition, nor have we been able to find any.

The reason for this dearth of relevant authority is found in section 472.080.2, which states that “[n]o defect of form or substance in any document invalidates any proceedings after judgment on the document.” Application of this provision is best demonstrated by a review of existing case law.

In Estate of Basler v. Delassus, 690 5.W.2d 791 (Mo. banc 1985), which involved a claim against a decedent’s estate, our Supreme Court applied section 472.080.2, RSMo 1978. Id. at 795 n.4. The claim was not verified. Id. at 793. The administrator ad litem and the claimant negotiated a compromise settlement, to which two devisees objected. Id. Nonetheless, the probate court approved the settlement. Id. The objecting devisees appealed, and one of their attacks on the settlement was that the claim from which it arose was not verified. Id. at 795. The Missouri Supreme Court declared this objection to be “no serious obstacle” to affirming the probate court’s judgment approving the compromise settlement. Id. The Court explained: “The absence of verification is effectively cured by the judgment following the hearing, approving the compromise.” Id.

To support that holding, the Court cited two authorities. First, it cited section 472.080.2, RSMo 1978, which read: “No defect of form or substance in any petition, nor the absence of a petition, invalidates any proceedings after judgment on the application.” Id. n. A The Court also cited In re Estate of Anderson, 544 S.W.2d 35 (Mo.App. W.D.1976). Id. In Anderson, which was a discovery of assets proceeding,- the appealing defendants complained that the “case went to trial without a verified petition.” 544 S.W.2d at 37, 42. Relying on section 472.080.2, RSMo Supp. 1973, this court held, inter alia, that “any defect in the verification has been cured by judgment.” Id. at 42.

In Estate of Wilson, 938 S.W.2d 607 (Mo.App. S.D.1997), the Southern District followed the Missouri Supreme Court’s lead in Basler. Like Basler, Wilson involved an unverified claim against a decedent’s estate. Id. at 609. Prior to trial, the guardian ad litem for Wilson’s minor heirs filed a motion requesting that the probate court dismiss the claim, arguing that because the petition was unsigned and unverified, the court had no jurisdiction to consider it. Id. The probate court nevertheless denied the motion to dismiss. Id. Thereafter, the claimants and Wilson’s personal representative entered into a stipulation compromising the claim. Id. After an evidentiary hearing, the probate court entered an order approving the compromise. Id. at 610. The minor heirs appealed, contending that the probate court erred in approving the compromise claim against the estate because the claim was neither signed or verified in that these were statutory prerequisites for the court to have jurisdiction. Id.

The Southern District disagreed, noting that “[wjhile there may be some measure of logic in Appellants’ argument, it fails to acknowledge subsection 2 of 472.080, RSMo 1994, a part of the probate code.” Id. at 611. After discussing the Missouri Supreme Court’s holding in Basler, which it found to be the last controlling decision of the Court on the jurisdictional claim raised by the appellants, the Southern District held that it “must honor Basler’s holding that by reason of § 472.080.2, RSMo 1978, the absence of verification of a claim against a deceased’s estate was cured after judgment.” Id. at 611-12. The Southern District concluded:

Basler, coupled with the version of § 472.080 in RSMo 1994 ... persuades us that we would err if we held, at this stage of the dispute (after the trial court has heard evidence and entered an order approving the compromise of [the] claim), that the trial court lacked jurisdiction to enter the order because of the flaws in the claim....

Id. at 612. It therefore proceeded to deny the minor heirs’ point relied on as lacking merit. Id. Thus, the court in Wilson held even though a pretrial objection to the form of the claim had been made, any defect as to verification was cured once evidence was heard and a judgment was entered.

In their reply brief, Appellants acknowledge the holdings in Basle?', Anderson, and Wilson but invite us not to apply them here since they did not specifically involve guardianship or conservatorship proceedings. We decline that invitation, noting that Basler was a decision of our Supreme Court. Furthermore, Wilson clearly involved the same sort of pretrial jurisdictional objections raised by Appellants in this case, and all three cases are logically sound interpretations of the plain language of section 472.080.2. Accordingly, we conclude that pursuant to section 472.080.2, the verification provision of section 472.080.1 is not jurisdictional and any such technical defects may be cured by judgment.

Appellants also argue that the petition was fatally defective in that it did not aver Ruth’s age; her parents’ names and addresses and whether they are living or dead; and the reasons why the appointments were sought, as required by sections 475.060 and/or 475.061.1.

As relevant here, sections 475.060(1), (4), and (10) provide that a petition seeking the appointment of a guardian for an incapacitated person “shall state” the “age” of the incapacitated person; the “name and address of the parents of ... the incapacitated person and whether they are living or dead”; and the “reasons why the appointment of a guardian is sought.” Also, section 475.061.1 states that a petition seeking the appointment of a conservator of the estate of a disabled person “shall contain the same allegations as are set forth in subdivisions (1) ... and (10) of section 475.060 with respect to the appointment of a guardian for an incapacitated person[J” Meanwhile, section 475.061.2 provides that, in a combined petition, the “allegations need not be repeated.” Unlike the verification provision of section 472.080.1, these pleading requirements have been held to be subject-matter jurisdictional in nature. See In re Dugan, 309 S.W.2d 145, 148-49 (Mo.App. S.D.1957); In re Werner, 737 S.W.2d 761, 763-65 (Mo.App. W.D.1987); In re Flair, 44 S.W.3d 444, 449, 452-53 (Mo.App. W.D.2001).

Turning first to Appellants’ claim that the petition did not plead Ruth’s “age” as required by sections 475.060(1) and 475.061.1, the record shows that Paragraph 1 specifically averred that Ruth’s date of birth was “6/19/12,” from which her age could easily be calculated by the probate court and the parties. Although evidence was presented at trial that Ruth’s actual date of birth was actually one year later (June 19, 1913), Appellants’ argument that the statutes “require an averment of her correct age” is entirely specious and unsupported by any authority. See generally State ex rel. Mo. Dep’t of Soc. Servs. v. Roper, 174 S.W.3d 563, 566-68 (Mo.App. W.D.2005).

Appellants also claim that the petition was defective since it did not list the “name and address” of Ruth’s parents, as well as whether “they are living or dead,” as required by section 475.060(4). Aside from the glaringly obvious fact that, if alive, Ruth’s parents would both have to have been well over 100 years old, this is of no legal consequence because Smith’s petition was aided by Appellants’ own subsequently filed counter-petition for guardianship and conservatorship. The Missouri Supreme Court addressed a similar issue in Johnson v. Estate of Girvin, 414 S.W.2d 245 (Mo. banc 1967), which was a probate proceeding against a decedent’s estate for recovery of the value of labor and materials furnished by a contractor to the decedent prior to his death. Id. at 247. The defendant (the estate’s executrix) argued that the contractor’s petition was so deficient that the probate court lacked subject matter jurisdiction to entertain it. Id. at 248. Our Supreme Court observed that “[w]hen the claim was first filed, at a time when all details should have been fresh in the minds of the various witnesses, the estate made no objection to the form of the claim or challenge to the jurisdiction of the court, but instead met the' attack head on, with a general denial together with a counterclaim which showed full knowledge of the” nature of the dispute. Id. at 249. The Court then pointed out that despite this, “defendant is asking us to rule the claim is so defective it was a nullity and the court obtained no jurisdiction.” Id.

The Court refused to do so, holding that “the statement of a claim in probate court may be aided by an answer or counterclaim, and we think that rule is applicable here.” Id. (internal citation omitted). The Court went on to explain:

When the claim, answer and counterclaim are considered together it is clear the claim involves the construction of the incinerator and related items. Even at common law, where the rules of pleading were rigid, an omission to state a material fact would be obviated if the pleading of the opposite party supplied the lack, under the rule known as ‘express aider.’ The rule has continued to be used in this state. Here the claim stated a definite amount and disclosed it was ‘on account of labor and materials furnished.’ Although the claim did not specify when or where the work was done or for what purpose or at whose request, the answer and counterclaim show the executrix was under no misapprehension as to what transactions were involved and under these circumstances we are not willing to hold the statement was so deficient as not to give the court any jurisdiction.

Id. at 249-50 (internal citations omitted).

Likewise, here, Appellants filed their own Petition for Appointment of Guardian and Conservator on December 12, 2003. That petition contained the very allegations about which Appellants now complain (i.e., Ruth’s correct age and date of birth and a statement that her parents were both deceased). As in Johnson, there is no doubt that Appellants (as well as the probate court) were under no misapprehension as to which interested individuals were alive and involved and what relief was being sought. Following Johnson, we hold that under these circumstances the petition was not so deficient as to deprive the probate court of subject matter jurisdiction to entertain it.

Finally, Appellants argue that the petition was fatally defective in that it did not aver the reasons why the appointment of a guardian and conservator was being sought, as required by sections 475.060(10) and 475.061.1. This contention is refuted by the record, which shows that Paragraph 1 of the petition alleged that Ruth was unable, by reason of dementia, “to receive and evaluate information to communicate decisions to such and [sic] extent that [she] lacks the capacity to meet her essential requirements for food, clothing, shelter, safety, or other care such that serious physical injury, illness, or disease is likely to occur.” Smith further pled, in Paragraphs 2 and 3 of the petition, that due to her condition as averred in Paragraph 1, Ruth “lacks the ability to manage her financial resources” on her own and “is unable to meet her essential daily needs of living.” These allegations were more than sufficient to meet the pleading requirements of sections 475.060(10) and 475.061.1 as to the reasons the appointment of a guardian and conservator was being sought. Point denied.

In Point III, Appellants contend that the probate court erred in exercising in personam jurisdiction over Ruth because the Notice of Hearing the probate court issued to Ruth was improperly served in that it was left with “her social services person” rather than Ruth herself, who was incoherent at the time of service. We disagree.

The probate court ruled, inter alia, that Appellants did not have standing to challenge its assumption of personal jurisdiction over Ruth due to insufficient service of process on her because that issue could only be raised by Ruth, whose attorney had expressly waived any possible defects in service. The general rule, which applies here, “is that the issue of defective service of process may be raised only by the one on whom the attempted service was made and one defendant, in the absence of prejudice to his own interests, is not entitled to urge defects in service on a co-defendant.” Superior Outdoor Adver. Co. v. State Highway Comm’n, 641 S.W.2d 480, 483 (Mo.App. S.D.1982). As Appellants never even alleged (much less demonstrated) such prejudice and they were not even co-respondents in this action but merely interested persons, the probate court’s ruling that they lacked standing to challenge service of process on Ruth was entirely correct. Point denied.

In Point V, Appellants contend that the probate court erred in adjudicating the petition because venue did not lie in Randolph County in that Ruth was actually domiciled in Monroe County at the time the petition was filed. They argue that Ruth effectively changed her domicile to Monroe County on June 28, 2002. A brief recitation of additional facts is necessary for a proper understanding of this contention.

Ruth was born on June 19, 1913. She married Clyde Duvall (“Clyde”) on September 1, 1940. They had no children. Ruth and Clyde built a home at 589 Fulton Avenue in Moberly (Randolph County), Missouri, where they lived together for 40 years. Clyde died on August 30, 1994, and Ruth continued living at her 539 Fulton Avenue home, where she remained until serious and progressive health problems led to her admission to a series of nursing homes.

Lynn, who is a self-employed life insurance and real estate salesman, was Clyde’s nephew and Ruth’s nephew-in-law. Lynn and his wife, Connie, reside on a 10-acre lot located at 11168 Highway 24, Madison, Missouri, in Monroe County. Before entering the nursing homes in which she would spend the rest of her life, Ruth would sometimes visit or spend a few days at their residence if no one was available to spend the night with her in her own home. However, she always thought of the Fulton Avenue house in Randolph County as her permanent home.

Ruth, and presumably her husband also, had named Lynn as her attorney in fact pursuant to a General Durable Power of Attorney as early as 1993. In June 2002, while Ruth (who was nearly ninety years old) was in a nursing home and her health and mental capacity had deteriorated to such an extent it is doubtful she had sufficient mental capacity to knowingly execute legal documents or even to express her wishes due to severe expressive aphasia, Lynn undertook to have a Revocable Trust Agreement, as well as a deed and other documents, prepared on her behalf. On or about June 28, 2002, Ruth signed a Revocable Trust Agreement purporting to establish the M. Ruth Duvall Trust, with her as settlor, and Lynn as the trustee. Ruth also signed a quitclaim deed transferring her interest in her Fulton Avenue home to Lynn. This home was valued at $57,000, and Ruth had owned it free and clear of any liens. Also on June 28, 2002, Lynn and Connie executed a quitclaim deed granting the Trust a 98% interest in their home at 11168 Highway 24 in Monroe County. The market value of this home was $350,000. The Trust, therefore, became the owner of a 98% interest in Lynn and Connie’s $350,000 Monroe County residence. In essence, the 98% interest in the Monroe County house was exchanged for Ruth’s Randolph County home, her car, and all personal property she owned at the time — even though, under the terms of the Trust, Ruth had to be adjudged competent in order to make any claim on or against this interest.

Thus, the crux of Appellants’ argument in Point V is that once Ruth deeded away her Randolph County home to Lynn and assumed, via the trust, a 98% interest in his Monroe County home, she changed her domicile from Randolph County to Monroe County. “Venue refers to the situs in which a court of competent jurisdiction may adjudicate an action.” State ex rel. Elson v. Koehr, 856 S.W.2d 57, 59 (Mo. banc 1993). Venue in Missouri is determined solely by statute, and the propriety of venue is generally determined as the case stands when first brought. State ex rel. Palmer v. Goeke, 8 S.W.3d 193, 195 & n. 1 (Mo.App. E.D.1999). “Because improper venue is a fundamental defect, a court that acts when venue is improper acts in excess of its jurisdiction.” State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002).

Section 475.035 governs venue in actions for the appointment of a guardian or conservator. In particular, section 475.035.1(1) provides that such actions may properly be brought “[i]n the county in this state where the minor or alleged incapacitated or disabled person is domiciled[.]” Where there is a dispute over the domicile of a person alleged to be incapacitated or disabled, the location of his or her domicile is “a question of fact ... which it [is] the duty of the probate court to determine.” State ex rel. Holthaus v. Holtcamp, 218 Mo.App. 440, 277 S.W. 607, 608 (E.D.1925) (interpreting statutory predecessor to section 475.035); see also Hamilton v. Henderson, 232 Mo.App. 1234, 117 S.W.2d 379, 382 (W.D.1938). Thus, where its adjudicative authority turns upon such a factual issue, “the probate court has the right to determine its jurisdiction from the facts before it[.]” Holthaus, 277 S.W. at 608.

The petition alleged that Ruth was domiciled in Randolph County, and the probate court exercised jurisdiction pursuant to section 475.035.1(1), finding that Ruth “is domiciled in Randolph County, Missouri.”

In order to effectuate a change of domicile it is necessary that there shall be actual personal presence in the new place and also the present intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode. The fact of physical presence and the intention must concur, and if they do so, even for a moment, the change of domicile takes place.

In re Estate of Toler, 325 S.W.2d 755, 759 (Mo.1959); see also In re Estate of Potashnick, 841 S.W.2d 714, 720 (Mo.App. E.D. 1992). “The question of intent is to be gathered largely from the acts and utterances of the person whose domicile is under question, and the declarations of the person made before, at, and after the time the domicile is in dispute may be considered.” Toler, 325 S.W.2d at 760 (internal citation omitted).

The evidence presented at trial on the issue of Ruth’s domicile makes it abundantly clear that Ruth never changed her domicile to Monroe County. To begin with, as noted supra, the full extent of Ruth’s presence in Monroe County consisted only of visiting and spending a few days at Lynn’s home if no one was available to spend the night with her in her home. In fact, as far as we can tell from the transcript, there was no evidence that Ruth ever even set foot in what Appellants claim was her “new domicile” after the events of June 28, 2002. Instead, she spent the rest of her life in nursing homes, whose bills Lynn had repeatedly ignored and refused to pay for months on end. Moreover, Ruth never expressed a present intent to remain in Lynn’s Monroe County home indefinitely, or to make that location her permanent residence. To the contrary, the probate court was presented with substantial evidence that by June 28, 2002, the date of the transactions whereby Ruth’s Trust acquired a 98% interest in Lynn’s home in Monroe County, Ruth’s condition had worsened to the point where she could no longer express her wishes, had difficulty in understanding, and would not have understood the effect of deeding houses, trading land, establishing a trust, or engaging in other complex financial transactions. Furthermore, there was evidence that when asked by Smith in October 2002, Ruth did not know that her home at 539 Fulton Avenue in Moberly, Randolph County, had been sold (when, in fact, Lynn had sold it to his son Stephen on August 28) 2002), but thought that she still owned it and that Lynn was talcing care of it for her. On the basis of this evidence, the probate court could properly have concluded that Ruth could not and did not form any intent to make Lynn’s Monroe County house her new domicile.

Accordingly, the probate court correctly determined that Ruth was domiciled in Randolph County when the petition was filed on July 11, 2003, and that venue was appropriate there. Point denied.

As the probate court had both personal and subject matter jurisdiction to enter its final judgment and order declaring Mildred Ruth Duvall to be totally incapacitated and disabled and appointing the Public Administrator of Randolph County as the guardian of her person and the conservator of her estate, the judgment is affirmed.

All concur.

      . At the time the probate court’s judgment and order was entered and the notice of ap- • peal was filed, the Public Administrator of Randolph County was Martha L. Creed. Her term of office expired on December 31, 2004. The following day, Ms. Creed's successor in that office, Glenda L. Winkler, was issued appropriate letters and was appointed to serve as the successor guardian of Ruth’s person and the successor conservator of her estate. Pursuant to Rule 52.13(d), Ms. Wink-ler was substituted as a Respondent in this matter by operation of law.

      . The probate court overruled these motions on April 6, 2004. Appellants then sought a writ of prohibition in this court, which was denied on May 27, 2004. A subsequent writ application to the Missouri Supreme Court was denied on June 23, 2004.

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

      . Chapter 475 does not contain a legislative definition of the word "person.” However, section 472.010(24) states that as used in the probate code, the word " ‘[p]erson’ includes natural persons and corporations!.]" Meanwhile, section 475.020 expressly makes the provisions of Chapter 472 applicable to guardianships and conservatorships "unless therein restricted to decedents’ estates" or "where no rule is set forth for guardianships and conservatorships in sections 475.010 to 475.370[.]” Thus, the word "person,” as used in section 475.060 and section 475.061.1, includes natural persons. Since sections 475.060 and 475.061.1 refer to "any person,” all natural persons, without limitation or restriction, are authorized to file a petition in the probate division of the circuit court of the county of proper venue for the appointment of a guardian of a minor or an incapacitated person and/or conservator of the estate of a minor or disabled person. See Wormington v. City of Monett, 356 Mo. 875, 204 S.W.2d 264, 267 (banc 1947) (observing that unless modified by context, the word "any” is “all comprehensive” and "is the equivalent of 'every' and ‘all’ ”); North v. Hawkinson, 324 S.W.2d 733, 744 (Mo.1959) (noting that the word "any” has been described as one of "the most comprehensive words in the English language” and admits of "no apparent exceptions.”)

      . Section 660.285.1, RSMo Supp.2002, states: "If the director determines after an investigation that an eligible adult is unable to give ' consent to receive protective services and presents a likelihood of serious physical harm, the director may initiate proceedings pursuant to ... chapter 475, RSMo, if appropriate.” Section 660.250(4) states that as used in section 660.285.1, RSMo Supp.2002, "director" means the "director of the department of health and senior services or his or her designees.”

      . The Court's opinion does not make it clear whether the objecting devisees raised the issue of lack of verification before or after trial and judgment.

      . That version is the same as the version in RSMo 2000 (quoted supra) except that the phrase "petition, nor the absence of a petition” in the 1978 version has been replaced by the single word "document” in the 2000 version, and the word "application” has been replaced by with the word "document.”

      . The 1994 version of section 472.080.2 is identical to that in RSMo 2000, which is at issue in this appeal.

      . The record shows that this is essentially what happened in the case sub judice.

      . Appellants argue that Johnson is inappo-site because they voluntarily dismissed their counter-petition without prejudice on January 21, 2004. Johnson makes it clear, however, that the rule of express aider comes into play as soon as an answer or counterclaim is filed with the probate court.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    In The Matter of Courtney SCHNIEDERS, Casey Schnieders, and Cailey Schnieders, Plaintiffs. Judith Bailey and Melissa Pagelai, Respondents, v. Michael Schnieders, Appellant.
    No. WD 64899.
    Missouri Court of Appeals, Western District.
    Oct. 4, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 22, 2005.
    Mark A. Richardson, Jefferson City, MO, for Appellant.
    Sara C. Michael, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., EDWIN H. SMITH, C.J. and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Michael Schnieders appeals the circuit court’s judgment denying his motion to terminate the guardianship and conser-vatorship of his children. Mr. Schnieders claims that the circuit court erred and misapplied the law in using a best-interest analysis to deny his motion. Because there was no error, we affirm.

Mr. Schnieders is the natural father of three minor children, twins Courtney and Casey, and younger sister Cailey. Their mother died of a terminal illness in 2002. When she was not in the hospital during the year preceding her death, she and the children were living with the children’s maternal grandmother, Ms. Judith Bailey. The girls continued to live with their grandmother, and Mr. Schnieders consented to Ms. Bailey being appointed the children’s guardian by the Cole County Circuit Court so that she could have the legal authority to make decisions on their behalf while he put his life back in order. He requested custody of the children from Ms. Bailey in December 2003, but she refused. In May 2004 he filed a “Revocation of Parent’s Consent to Guardianship and Motion to Terminate Guardianship, Remove Conservator, and Name Natural Father Successor Conservator.”

The circuit court denied Mr. Schnied-ers’s motion, finding that while Mr. Schnieders was not an unfit parent, it would be in the children’s best interest to remain with their grandmother. The circuit court referred to several factors in determining best interest, including Mr. Schnieders’s admitted daily alcohol consumption, the older girls’ wishes, the girls’ ability to remain at their present school, and Mr. Schnieders’s failure to present sufficient evidence that changing the guardianship would serve the children’s best interest.

In a bench-tried case, this court will overturn the circuit court’s ruling if there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App. W.D.1997). Because Mr. Schnieders alleges that the circuit court erred in applying the law, we review the issue de novo, where no discretion is given to the circuit court’s decision because it involves a matter of statutory interpretation. Blakely v. Blakely, 83 S.W.3d 537, 540 (Mo. banc 2002).

Section 475.030.4 allows the State to grant letters of guardianship of the person of a minor in three cases: when the parents are no longer living, when the parent or parents have their parental rights terminated, or when the parent or parents are “unwilling, unable or adjudged unfit to assume the duties of guardianship.” In this case, Mr. Schnieders consented to the guardianship at a time when he was apparently unwilling or unable to assume his parental duties. His daughters, then age nine and three, had been living with their grandmother throughout their mother’s year-long illness. Mr. Schnieders thought it best, when their mother died, that the girls remain with Ms. Bailey until he was ready to take them back full time.

Before section 475.083 was amended in 2001, the probate court was not directed to consider a minor’s best interest in deciding whether to terminate a guardianship. We interpreted this section in a case decided in 1999 and declared that once a court determines that a parent is no longer unfit, the court’s inquiry must stop, because the law presumes that a minor child’s best interest is served by having custody in a parent. In the Interest of L.C.F., 987 S.W.2d 830, 834-35 (Mo.App. W.D.1999). In that case, we distinguished the child-custody statutes that do require a best-interest analysis.

Section 475.083 provides for the termination of a guardianship or conserva-torship in seven defined circumstances, including “[u]pon an order of court terminating the guardianship or conserva-torship.” § 475.083.1(7). Previously, a court could have ordered such termination “(1) If the conservatorship estate is exhausted; (2) If the guardianship or conservatorship is no longer necessary for any other reason.” § 475.083.2(l)-(2). As amended in 2001, the statute now provides for a court order terminating the guardianship “(2) If the conservator-ship is no longer necessary for any other reason; (3) If the court finds that a parent is fit, suitable and able to assume the duties of guardianship and it is in the best interest of the minor that the guardianship be terminated.” § 475.083.2(3) (emphasis added). Thus, while L.C.F. correctly stated the law in 1999, it no longer applies to our current understanding of the legislation.

The circuit court’s findings state in pertinent part, “The court does not find that the natural father, Michael Schnieders, is unfit,” and then the court went on to discuss the children’s best interest. This was proper under amended section 475.083, and the circuit court did not err as a matter of law. Because Mr. Schnieders does not challenge the sufficiency of the evidence supporting the circuit court’s best-interest findings, we will not review that evidence in affirming the court’s ruling.

In his original motion to revoke guardianship, Mr. Schnieders also filed a motion to remove the conservator, Melissa Pagelai, who manages the funds left to the children by their mother. The circuit court did not make any specific findings regarding the conservatorship, and Mr. Schnieders only mentions the issue in his point relied on and in the last sentence of his appellate brief without presenting an argument. Additionally, Mr. Schnieders testified on cross-examination that he would not have any objection to Ms. Page-lai continuing to serve as the conservator of the children’s funds. Since Mr. Schnieders only makes a brief reference to the issue without argument or citation to legal authority, however, this issue is deemed abandoned. State v. Timmons, 956 S.W.2d 277, 283 (Mo.App. W.D.1997); see also Brough v. Ort Tool & Die Corp., 149 S.W.3d 493, 498 (Mo.App. W.D.2004).

The circuit court properly applied the law when it-denied Mr. Schnieders’s motion to revoke consent and terminate the guardianship and conservatorship of his three daughters. Accordingly, we affirm the circuit court’s judgment.

VICTOR C. HOWARD, P.J. and EDWIN H. SMITH, C.J., concur.

      . All statutory references are to RSMo (2000) and the Cumulative Supp. (2004), unless otherwise indicated.


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    STATE of Missouri ex rel. Misty LOWRY, Appellant, v. Richard K. CARTER, Respondent Pro Se.
    No. WD 64759.
    Missouri Court of Appeals, Western District.
    Oct. 4, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 22, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Michael Kinder, Office of Attorney General, Jefferson City, for appellant.
    Richard K. Carter, Kansas City, pro se.
   RONALD R. HOLLIGER, Presiding Judge.

The Department of Social Services, Family Support Division, appeals a trial court judgment setting aside a 1993 default paternity judgment against Richard Carter. The trial court set aside the paternity judgment on the basis that it was obtained through extrinsic fraud. On appeal, the Division argues that Carter’s motion to set aside the judgment failed to state a claim for relief, that the trial court’s order setting aside the default judgment was precluded by Carter’s post-judgment neglect and inattention- to the case, and that the evidence presented was insufficient to support a finding of extrinsic fraud. We find that Carter’s motion sufficiently alleged grounds to constitute an equitable claim to set aside the judgment based on extrinsic fraud. However, there was insufficient evidence in the record to support a finding of extrinsic fraud and, therefore, we reverse.

Facts

In the early nineteen nineties Misty Lowry and Richard Carter were involved in a romantic relationship during the course of which Lowry became pregnant. Unknown to Carter, the relationship was not sexually exclusive and during the time of conception Lowry had a sexual encounter at least once with a man named Tyrone Collins. The child was born on July 3, 1992.

On January 20, 1993, Lowry signed an Affidavit In Support of Default Judgment swearing that at the time of conception her sexual relationship with Carter was exclusive. Lowry also signed Combined Petitions for Declaration of Paternity Under The Missouri Uniform Parentage Act For An Order Of Support And For Recovery Of Necessary Support Provided, filed on February 3, 1993, which alleged that Carter was the father of the child. Carter did not answer the petitions and was therefore in default. Carter also failed to appear at an April 29,1993, hearing before the Jackson County Circuit Court to determine paternity and support. The court entered a judgment finding Carter to be the father of the child and ordered him to pay $146 per month in child support.

On February 26, 2004, Carter filed a Second Amended Motion to Set Aside Judgment of Declaration of Paternity, Child Support and Necessary Support. He asked the court to order: reimbursement of any child support he paid; his name expunged from the child’s birth certificate; all parties to submit to blood testing; and that the alleged father, Tyrone Collins, be joined as a third-party respondent. The trial court held a hearing on the motion. Collins, although joined as a party, was not served and did not appear at the hearing.

At the 2004 hearing, Carter testified that he was afraid to appear at the 1993 paternity hearing because of an outstanding felony warrant for his arrest in an unrelated case. Carter also testified that Lowry told the child that Carter was his father, and that Carter did not believe that he needed to be at the hearing because he thought there was no question as to paternity.

Carter first questioned whether he was the child’s father in 1994 when Lowry showed him a picture of the child with Tyrone Collins. Evidence was introduced that at some time Lowry told friends that she knew Carter was not the father, while maintaining the opposite to Carter and his family. Lowry admitted at the 2004 hearing that she lied to .the court when she filled out the affidavit claiming that she and Carter had an exclusive .sexual relationship.

On October 1, 2004, the circuit court entered a judgment setting aside the 1993 Judgment of Paternity and Child Support finding that Lowry committed extrinsic fraud in the procurement of that judgment. The court ordered Carter’s child support terminated as of October 1, 2004, and that his name be removed from the child’s birth certificate. The court also found that Carter was not entitled to reimbursement of any past support payments because he failed to act within a reasonable time after suspecting that he might not be the father. The Division filed a timely appeal to which Carter has not responded.

Discussion

In Point one, the Division argues that the trial court erred in setting aside the default paternity judgment because Carter’s Motion to Set Aside failed to state a claim for relief. Specifically, the Division asserts that the content of Carter’s motion was insufficient to invoke the trial court’s equity jurisdiction because he did not plead facts amounting to extrinsic fraud.

Extrinsic fraud is defined as “fraud that induced a party to default or to consent to judgment against him.” State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137, 144 (Mo.App.2001). The Division contends that Carter must plead that he defaulted because of Lowry’s misrepresentations in order to successfully request equitable relief from a default judgment on the basis of extrinsic fraud. The Division asserts that Carter did not plead in his motion that he defaulted because of Lowry’s misrepresentations and, as such, Carter has failed to state a claim for relief.

Although extrinsic fraud was not specifically invoked in Carter’s motion, the trial court treated it as an independent action in equity on that basis. Rule 74.06(d) allows the trial court to entertain such an action and set aside a final judgment more that one year after it was entered if a party committed fraud upon the court, generally referred to as extrinsic fraud. Hill, 53 S.W.3d at 144. Even if filed as a motion in the same case, as it was here, the trial court is free to treat the motion as an independent action in equity if its substance is “sufficient to invoke the equitable powers of the court.” Id. Such motions are to be read liberally. Cozart v. Mazda Distribs. (Gulf), Inc., 861 S.W.2d 347, 352 (Mo.App.1993).

Reading the content of Carter’s motion liberally we find no merit to the Division’s assertion that the motion was not sufficient to invoke the equitable powers of the court. Carter’s motion states that the paternity judgment “was procured ... through means of fraud and material misrepresentation of fact, in that [Lowry] intentionally mislead [the Court and Carter] into believing that [Carter] was the natural and biological father of [Richard K. Carter, Jr.].” Additionally, language near the end of Carter’s motion belies the Division’s contention that Carter did not assert that the paternity judgment, or at least the requirements of the paternity judgment, resulted because of Lowry’s misrepresentations. The second to last paragraph of Carter’s motion states: “[ajs a result of Petitioner’s false allegations [Carter] has unjustly paid approximately $8,758.44 to [Lowry].” Point denied.

We next consider the Division’s Point three because it is dispositive of the case. The Division argues that there is insufficient evidence in the record to support a judgment that extrinsic fraud actually took place. The Division contends that Carter failed to show that Lowry’s misrepresentation actually induced him to default with regard to the paternity judgment. In support of its argument, the Division points to evidence indicating that the reason Carter defaulted was not a result of Lowry’s misrepresentation, but because there were unrelated warrants out for his arrest and he was afraid to show up in court.

“Missouri courts have had some difficulty in defining extrinsic fraud, but the most recent cases have adopted the definition proffered in Restatement (Second) of Judgments Section 70 cmt. c (1982): ‘fraud that induced a party to default or to consent to judgment against him.’ ” Sanders v. Ins. Co. of N. Am., 904 S.W.2d 397, 401 (Mo.App.1995). Intrinsic fraud, on the other hand, is the “knowing use of perjured testimony or otherwise fabricated evidence.” Id. Intrinsic fraud must be raised within one year of final judgment. Rule 74.06(b)(2).

In this case, the trial court found that Carter had “proven extrinsic fraud by Misty Lowry, in procurement of the judgment of paternity entered against him on April 29, 1993.” There is no dispute that Lowry knew that her statement in the affidavit relied on by the trial court in entering the paternity judgment was false. However, allegations that a party knowingly fabricated evidence to procure a judgment cannot rise to the level of extrinsic fraud. Cody v. Old Republic Title Co., 156 S.W.3d 782, 784 (Mo.App.2004). In order to show extrinsic fraud, Carter must go a step further and produce evidence that he was somehow induced to default by Lowry’s misrepresentations.

Evidence was introduced that one of the reasons Carter did not show up for the default proceeding was because he believed his sexual relationship with Lowry was exclusive and had no reason to question his biological fatherhood. That in no way suggests that Carter was induced to default or to consent to judgment by Low-ry. He did not testify that Lowry told him that the relationship was exclusive or that no one else could be the father. Lowry’s was a misrepresentation, if at all, by omission. Evidence was also introduced that Lowry told Carter that the child was his and allowed Carter to interact with the child as a father while maintaining to others that she knew that he was not the real father. While this brings Carter closer to the elements of extrinsic fraud, there is no indication in the record that Lowry told Carter that he was the father prior to the entry of the default paternity judgment. Absent evidence from the record that Lowry induced Carter to default, we cannot say that the trial court correctly concluded that extrinsic fraud took place. Therefore, we reverse because there was insufficient evidence for the trial court to reach a finding of extrinsic fraud.

The judgment is reversed.

ROBERT G. ULRICH, and JOSEPH M. ELLIS, Judges, concur.

      . No blood testing was done apparently because Carter refused or saw as unnecessary any definitive paternity testing.

      . This court has previously found that a misrepresentation about paternity relied on by another party could rise to the level of extrinsic fraud. See State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137, 144-45 (Mo.App.2001).


author: PATRICIA L. COHEN, Judge. CLIFFORD H. AHRENS,

text:
    STATE of Missouri, Respondent, v. Danny NELSON, Appellant.
    No. ED 84544.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 4, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 10, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Amy M. Bartholow, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Danny Nelson (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of St. Louis County upon his conviction by a jury of first degree child molestation. Defendant contends that the trial court erred in overruling his trial attorney’s objections to the improper introduction of evidence of the prior statutory sodomy of a different victim. We reverse and remand.

Statement of the Facts and Proceedings Below

Thirteen year-old J.B. and her family lived across the street from Defendant and his family. The families were close friends. On February 13, 2003, J.B. took her new Chihuahua puppy over to Defendant’s house to show it to Defendant. While J.B. and the puppy were visiting Defendant, Defendant touched J.B.’s leg and, at a certain point, placed his hand under J.B.’s sweater and rubbed her back. After a while, Defendant used the puppy’s paws to lift J.B.’s shirt about one-half inch above her belly button and tickle her stomach with the dog’s paws. Defendant also touched J.B.’s stomach with his hand.

After touching J.B.’s stomach with his hand, Defendant touched the fabric of J.B.’s right bra cup. Thereafter, Defendant rubbed J.B.’s lower stomach and placed his “first knuckle” in J.B.’s pants. Defendant also hugged J.B., touched her bottom and kissed her forehead.

After talking to a friend and her stepmother, J.B. reported the incident to the police. Officer Steve Still took J.B.’s report and, in response, interviewed Defendant. Defendant admitted to touching J.B.’s rear end, hugging her and touching her “a little bit below her belt line.” Defendant did not admit to touching J.B.’s breast or bra.

The State charged Defendant with child molestation in the first degree. More spe-eifieally, the State alleged in the complaint that Defendant had sexual contact with J.B. “by touching her breast, over her bra, with his hand.” Defendant pleaded not guilty.

Prior to trial, the State moved to introduce evidence of Defendant’s commission of a prior crime, specifically a 1999 conviction for statutory sodomy involving a sixteen-year-old victim known as A.R. The State argued that this evidence, including A.R.’s in-court testimony, the investigating police officer’s in-court testimony, and Defendant’s written and nearly hour long videotaped confession were necessary to prove Defendant’s intent to molest J.B. by touching her breast.

On the morning of trial, Defendant’s attorney objected to the use of the prior conviction. In response, the State again asserted that this evidence was necessary because intent was an issue in the case and the prior conviction could show the absence of a mistake or accident. At that time, the trial court granted the State’s request to introduce the evidence.

At trial, the State called J.B., Officer Still, A.R. (the victim in the 1999 sodomy incident), a victim’s advocate and the police officer from the 1999 case to testify. In her testimony, J.B. alleged that, on the date in question, Defendant touched her back, stomach and the cup of her bra. Officer Still testified that his report indicated that J.B. alleged that Defendant touched her on her stomach, her back and her buttocks but that J.B. did not allege that Defendant touched her bra or her breast. When questioned further, Officer Still indicated that he had extensive experience interviewing children and, if J.B. had made such an allegation, it would be contained in the report. In addition, Officer Still testified that he did not question Defendant regarding the allegation that he touched J.B.’s breast because that allegation is not contained in his report.

Over defense counsel’s renewed objection, A.R. testified that when she was sixteen years-old, Defendant, who was a very close family friend, molested and sodomized her. Specifically, A.R. testified that she was lying on a couch in Defendant’s basement pretending to be asleep when Defendant began to rub her back and touch her breasts. A.R. testified that she heard Defendant unzip his pants and touch himself. Defendant then rubbed AR.’s legs, separated them and kissed her inner thigh. Ultimately, Defendant placed his hands inside AR.’s shorts and inserted his finger in her vagina.

The State next called the officer who questioned Defendant in response to AR.’s allegations. The officer testified that Defendant made a written confession. The written confession, which the State offered and the trial court admitted stated, as follows:

[I] [sjtarted rubbing [AR.’s] back then moved her hand to my crouch [sic]. Then opened my pants [and] had [AR.] touch me. At this time I asked [A.R.] if she was ok with this and she said nothing then I moved [AR.’s] leg and put my hand inside her pants. After a couple minutes of this [A.R.] said stop [and] I stopped. At no time did [A.R.] ever give any indication of not wanting to do any of this. [A.R.] then jumped up and told my son what happened.

The officer likewise testified that Defendant made a detailed videotaped confession which the State played, in its nearly one-hour entirety, for the jury in the present case. In the videotaped confession, Defendant described how he approached A.R. as she lay on his couch, positioned himself next to her, rubbed A.R.’s back, stomach and chest, touched A.R.’s legs, unzipped his. pants, placed A.R.’s hand on his “crotch,” spread A.R.’s legs, rubbed both outside and inside A.R.’s underwear and ultimately inserted his fingers into her vagina. On the videotape, Defendant was asked to and did repeatedly describe the events involving A.R.

At the close of evidence, the trial court submitted the case to the jury using a verdict director containing the following language:

First, that on February 18, 2003 in the County of St. Louis, State of Missouri, the defendant touched the breast of J.B. through the clothing.

After deliberations, the jury found Defendant guilty of molesting J.B. and sentenced Defendant to eight years in the Missouri Department of Corrections. This appeal followed.

Standard of Review

We will reverse a trial court’s decision to admit or exclude evidence only upon finding an abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). The trial court has the discretion to admit evidence of prior crimes because it can best determine whether the relevance of such evidence is outweighed by its prejudice. State v. Helm, 892 S.W.2d 743, 744 (Mo.App. E.D.1994). However, when a trial court abuses its discretion, we will not hesitate to overturn its ruling. Id.

Discussion

In his sole point on appeal, Defendant asserts that the trial court abused its discretion in overruling his objections to the introduction of evidence detailing his prior statutory sodomy conviction involving a different victim because the admitted evidence was improper propensity evidence and its prejudicial effect grossly outweighed any probative value. In response, the State argues that the evidence was admissible because it was relevant to prove Defendant’s intent and absence of mistake or accident in the present case.

Generally, “trial courts should be wary of evidence of other crimes due to the highly prejudicial character of such evidence.” Helm, 892 S.W.2d at 745 (citation omitted). As the Supreme Court held in State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998) “showing the defendant’s propensity to commit a given crime is not a proper purpose for admitting evidence, because such evidence ‘may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.’ ” (citation omitted). Accordingly, “evidence of other crimes should be utilized only when there is strict necessity.” Helm, 892 S.W.2d at 745 (citation omitted).

Proof that a defendant committed a separate and distinct crime is not admissible unless that proof has a legitimate tendency to establish the defendant’s guilt of the charged offense. State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992). If the evidence of the prior crime is both legally and logically relevant such evidence may be admissible. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Evidence is legally relevant if its probative value outweighs its prejudicial effect. Id. Likewise, evidence is logically relevant if it has a legitimate tendency to directly establish the accused’s guilt. Id.

Evidence has a legitimate tendency to prove that the accused committed the crime charged when it “tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; [or] (5) the identity of the person charged with the commission of the crime on trial.” Sladek, 835 S.W.2d at 311. We presume that evidence of prior crimes is prejudicial if it is inadmissible under any of these exceptions. State v. Lancaster, 954 S.W.2d 27, 29 (Mo.App. E.D.1997).

We first consider whether in-court testimony of A.R. and the investigating police officer as well as Defendant’s written and videotaped confessions detailing how he sodomized A.R. in 1999 had some legitimate tendency to establish that Defendant was guilty of touching J.B.’s breast on February 13, 2003. We have reviewed the in-court testimony and Defendant’s videotaped and written confessions and all present compelling testimony that Defendant sodomized A.R. three and one-half years before the incident involving J.B. Essentially, the in-court testimony and Defendant’s videotaped and written confessions admitting his wrongdoing with A.R. prove, at most, that Defendant had a propensity to engage in sexual conduct with adolescent girls who were family friends.

The State contends that Defendant’s case fits an exception to the general prohibition against the use of propensity evidence. Namely, the State alleges that intent and absence of mistake or accident were issues in the case because J.B.’s account of what she experienced at the hands of Defendant is susceptible to an innocent explanation. In short, the State argues that evidence of Defendant sodomizing A.R. years before was introduced to show that Defendant acted with criminal intent and his actions were not an inadvertent mistake or accident.

Contrary to the State’s position, “the prosecution should not automatically assume that whenever knowledge or intent is an element of the crime, evidence of other crimes bearing on intent is automatically admissible.” State v. Dudley, 912 S.W.2d 525, 529 (Mo.App. W.D.1995). Moreover, as the Dudley court held, “there is no reason to introduce prejudicial evidence where there is no actual controversy as to the defendant’s knowledge or intent.” Id. at 529-30.

Here, Defendant’s intent (i.e., whether his conduct was an accident or mistake) to commit the act was not an issue in controversy. First, there was direct evidence that Defendant committed the charged act and that alone “ordinarily gives rise to the inference of the necessary mens rea.” State v. Conley, 873 S.W.2d 233, 237 (Mo. banc 1994). Second, Defendant’s position was not that he accidentally touched or innocently brushed J.B.’s breast or bra. Rather, Defendant denied all contact with J.B.’s breast or bra. To that end, Defendant put on no evidence and instead relied on a cross-examination of Officer Still, which established that J.B. had not complained that Defendant touched her breast or bra. In closing argument, Defendant’s counsel argued repeatedly that Defendant never touched J.B.’s breast or bra. At no time did Defendant offer any evidence which attempted to explain his conduct as innocent or mistaken. Accordingly, A.R.’s testimony describing the prior crime, the nearly one-hour videotape describing the prior crime, the written confession describing the prior crime and police officer testimony regarding investigation of the prior crime were not relevant to an issue in controversy in this case. See Dudley, 912 S.W.2d. at 529 (use of prior crime to establish intent error when defendant offers no evidence suggesting “innocent possession”); Conley, 873 S.W.2d at 237 (no other evidence is required to establish intent. “unless the state has some reason to believe that the defendant will make intent or mistake or accident an issue-” (emphasis added)).

Even assuming, arguendo, that the evidence of the prior crime involving A.R. was probative of intent (i.e., that it was logically relevant), admission of the evidence required a showing of legal relevance (i.e., that its probative value outweighed prejudice), as well. The trial court has discretion to balance the probative value of evidence against its potential prejudicial effect on the jury. Bernard, 849 S.W.2d at 13. However, in reaching this determination, the trial court must carefully consider that “the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors.” State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996) quoting State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1955).

As stated above, we have reviewed A.R.’s testimony as well as the videotaped and written confessions detailing how Defendant molested and sodomized A.R. It is obvious that this evidence was highly prejudicial. The evidence of the prior crime proffered by the State outweighed anything presented in support of the crime on trial. See State v. Barriner, 34 S.W.3d 139, 150-51 (Mo. banc 2000) (volume and graphic nature of propensity evidence as well as similarity of charged offense to improperly admitted evidence weighs in favor of reversal). The State literally tried the earlier crime to the jury in this case. Moreover, the evidence in this case was not overwhelming. The State’s two main witnesses to the 2003 events, J.B. and Officer Still, contradicted each other. Officer Still testified that J.B. had- not complained about Defendant touching her breast or bra and that he had not asked Defendant about such an allegation. It is quite obvious that the State used the seriousness and level of graphic detail characterizing the earlier conviction to bolster the relative weakness of this case. Whatever limited probative value might be argued was clearly outweighed by the evident prejudice. Accordingly, we reverse and remand.

Conclusion

The judgment of the trial court is reversed and this cause is remanded for a new trial.

MARY K. HOFF, P.J., Concurs.

CLIFFORD H. AHRENS, J., Dissents.

CLIFFORD H. AHRENS,

Judge, dissenting.

I respectfully dissent. I believe that the evidence of defendant’s prior conviction was relevant and admissible to prove defendant’s intent and absence of mistake or accident in the present case.

The majority correctly notes that evidence of a prior conviction is not automatically admissible when knowledge or intent is an element of the crime. State v. Dudley, 912 S.W.2d 525, 529 (Mo.App.1995). For intent, mistake or accident to serve as the basis for admission of evidence of an uncharged crime, those must be legitimate issues in the case. State v. Conley, 873 S.W.2d 233, 237 (Mo. banc 1994).

The majority concludes that defendant’s intent to commit the act was not an issue in controversy in the present case. I disagree. The majority relies upon Conley for the proposition that where there is direct evidence, as there was in the present case, that defendant committed the charged act, it will give rise to an inference of the necessary intent, and no other evidence is required to establish that element of the crime. 873 S.W.2d at 237. However, the court in Conley continued to find that where the state has some reason to believe the defendant will make intent, mistake or accident an issue, other evidence may be required. Id.

In the present case, defendant’s written statement was admitted, without objection, at trial. Defendant stated that while he was playing with the dog with J.B., he “unknowingly and unintentionally” touched her on the “rear end” while hugging her, and his hand “slipped a little bit below her belt line” while they were playing. He apologized for any misunderstanding.

Defendant argues that his position was not that he accidentally touched J.B.’s breast, the conduct for which he was on trial, but that he did not have any contact with her breast. Based upon defendant’s statement, the State could reasonably believe that he would make intent an issue in the case. Defendant stated that he unknowingly and unintentionally had physical contact with J.B.’s “rear end.” He acknowledged that while they were playing his hand also “slipped a little bit below her belt line.” Defendant apologized for “any misunderstanding” that arose from the incident. His statement regarding his physical contact with J.B. was made in the context of accidental contact while playing with the dog with J.B. It is a reasonable inference from this statement that if the jury found he had contact with J.B.’s breast, it was accidental. Therefore, defendant’s intent was at issue in the case, and the admission of his prior conviction for statutory sodomy was relevant and admissible to prove his intent in the present case.

The majority notes that even assuming evidence of defendant’s prior conviction was relevant, the evident prejudice outweighed any probative value. While I recognize the prejudicial nature of the evidence presented of defendant’s prior conviction, I also believe this evidence was relevant to prove defendant’s intent in the present case. The trial court is in a superior position to weigh any prejudicial effect of the evidence against its probative value. State v. Kaiser, 139 S.W.3d 545, 558 (Mo.App.2004). The ruling of the trial court in this respect must be so clearly against the logic of the circumstances and so arbitrary or unreasonable as to shock our sense of justice and indicated a lack of careful consideration. Id. I do not believe the trial court’s decision to admit the evidence of defendant’s prior conviction constituted such an abuse of discretion.

I would affirm the judgment of the trial court.

      . The State charged Defendant with violating Section 566.067 RSMo (2000) which provides, in relevant part, that "[a] person commits the crime of child molestation in the first degree if he subjects another person who is less than twelve years of age to sexual contact.” Sexual contact is defined in Section 566.010 as "touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person.”


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Monika J. DAWSON, Appellant.
    No. ED 85039.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 4, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 10, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      •Richard Sindel, Clayton, MO, for appellant.
    Jeffrey T. Coleman, Prosecuting Attorney, Hillsboro, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Monika J. Dawson (“Defendant”), appeals from the judgment of the Circuit Court of Jefferson County finding her guilty, after a bench trial, of one count of sexual misconduct in the second degree, section 566.093, RSMo 2000. Defendant was sentenced to fifteen days in the custody of the Jefferson County Sheriffs Department, but the court suspended the execution of that sentence and placed Defendant on probation for two years under the court’s supervision. We affirm.

On March 13, 2002 at approximately 10:00 p.m., Detectives Thomas Harster and Mike Pruneau (collectively “Detectives Harster and Pruneau”), working undercover, visited Award Video, which is located in Fenton, Missouri, as part of an investigation of sexual activities taking place there. Award Video is an establishment where sexually explicit material is sold and where a theater is used by patrons to watch sexually explicit material. Upon entry of Award Video, Detectives Harster and Pru-neau observed numerous videotapes of a sexually explicit nature. Detectives Har-ster and Pruneau then purchased tickets to enter the theater for $8.00 per person. There were signs on the doors to the theater stating that no sexual conduct was permitted in the facility. Sexually explicit videotapes were playing in the theater. As Detective Harster entered the theater, he immediately observed Defendant engaging in oral sex and hand manipulation with four males in the theater. Subsequently, other police officers entered and arrested Defendant and others for, among other things, sexual misconduct.

On December 27, 2002, Defendant was charged by information with the misdemeanor of sexual misconduct in the second degree. The information alleged that Defendant had sexual contact in the presence of a third person or persons on or about March 13, 2002, and that such conduct occurred under circumstances in which Defendant knew that such conduct was likely to cause affront or alarm. On August 6, 2008, the prosecution filed an amended information, which alleged that Defendant had “sexual contact with Brian Dawson in the presence of Detective Harster.... ”

On June 2, 2004, after a bench trial, Defendant was found guilty of sexual misconduct in the second degree and later sentenced to fifteen days in the custody of the Jefferson County Sheriffs Department. The execution of the sentence was suspended and Defendant was placed on probation for two years under the court’s supervision. This appeal followed.

Our standard of review in a court-tried case is the same as in a jury-tried case. State v. Lasley, 130 S.W.3d 15, 16 (Mo. App. E.D.2004). We will accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard any contrary inferences and evidence. Id. We will limit our review to a determination of whether there is sufficient evidence from which a reasonable trier of fact might have found a defendant guilty beyond a reasonable doubt. Id.

In her sole point on appeal, Defendant argues the trial court erred in failing to grant Defendant’s motion to dismiss at the close of the prosecution’s evidence or, in the alternative, Defendant’s motion for judgment of acquittal. Defendant asserts that the prosecution failed to prove beyond a reasonable doubt that Defendant knew that her conduct was likely to cause affront or alarm or that her conduct did cause affront or alarm to Detective Har-ster.

Section 566.093.1(2) states “[a] person commits the crime of sexual misconduct in the second degree if he [h]as sexual contact in the presence of a third person or persons under circumstances in which he knows that such conduct is likely to cause affront or alarm.” Section 566.093.1(2). Section 566.010(3) defines “sexual contact” as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3). “Affront” is defined as “a deliberately offensive act or utterance; an offense to one’s self-respect.” State v. Moore, 90 S.W.3d 64, 67 n. 6 (Mo.banc 2002), quoting Webster’s Third New International Dictionary 36 (1993). “Alarm” is defined as “apprehension of an unfavorable outcome, of failure, or dangerous consequences; an occasion of excitement or apprehension.” Moore, 90 S.W.3d at 67 n. 6, quoting Webster’s Third New International Dictionary at 48.

In this case, there is no question that Defendant was engaging in sexual contact in the presence of a third party. The question is whether Defendant knew such conduct was likely to cause affront or alarm.

Defendant made a statement to the police that she “felt a little nervous and overwhelmed with all of those guys around me with their penis [sic] out.” Thus, Defendant herself expressed affront or alarm at the behavior occurring in the theater. Moreover, there were signs at the entrance to the theater that stated sexual activity was not permitted. The presence of the signs put Defendant on notice that someone entering the theater for the first time would be affronted or alarmed to observe any sexual contact other than sexual contact shown on the theater screen. Therefore, we find that there was substantial evidence to conclude that Defendant knew that her conduct was likely to cause affront or alarm. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER, III, J. and KENNETH ROMINES, J., concur.

      . All statutoiy references are to RSMo 2000', unless otherwise indicated.