author: LISA WHITE HARDWICK, Judge.

text:
    Janna C. GODFREY, Respondent, v. James P. GODFREY, Appellant.
    No. WD 63042.
    Missouri Court of Appeals, Western District.
    Jan. 4, 2005.

      David P. Chamberlain, Liberty, MO, for Appellant.
    Gail Berkowitz-Gifford, Kansas City, MO, for Respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

James Godfrey (Husband) appeals from the judgment dissolving his marriage to Janna Godfrey (Wife). He contends the trial court erred in awarding Wife temporary maintenance in the amount of $600 per month and permanent maintenance of $200 per month. Finding no error, we affirm the trial court’s judgment.

STANDARD OF REVIEW

Appellate review of a trial court’s determination of maintenance will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court incorrectly declares or applies the law. Hammer v. Hammer, 139 S.W.3d 239, 240 (Mo.App.2004). The trial court has broad discretion in awarding maintenance and its decision will not be overturned absent an abuse of discretion. Id. In determining whether there has been an abuse of discretion, we review the evidence in a light most favorable to the decree, disregarding any evidence to the contrary and deferring to the trial court’s judgment even if the evidence could lead to a different conclusion. Id.

TEMPORARY Maintenance

Husband contends the trial court erred in awarding temporary maintenance because Wife failed to prove that she was unable to support herself through appropriate employment, as required by Section 452.335. We cannot review this point as Husband has waived any right to appeal from the temporary maintenance award. The trial court entered the order for temporary maintenance on May 14, 2002. This order was a final judgment from which an appeal could have been taken. Wakili v. Wakili 918 S.W.2d 332, 338 (Mo.App.1996). Husband did not appeal the temporary maintenance award within ten days of its finality, and his attempt to do so now is untimely. Id.; Rule 81.04(a). Point denied.

PERMANENT MAINTENANCE

Husband contends the permanent maintenance award of $200 per month was unsupported by substantial evidence in that: (1) Wife failed to meet the threshold requirements of Section 452.335; and (2) Wife requested only $1.00 in maintenance. Husband argues that even if Wife could prove her entitlement to maintenance, the court only had authority to award her the nominal amount of $1.00 monthly.

Under Section 452.335.1, maintenance can be awarded to a spouse who lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. If this two-part test is met, the court must consider other relevant factors in determining the amount and duration of maintenance, including:

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

§ 452.335.2.

Wife presented substantial evidence to satisfy the threshold requirements for maintenance. Wife had' worked as a teacher and coach during the parties’ five-year marriage. In July 2001, she was diagnosed with a serious immune deficiency disease and was forced to take medical leave during the 2001-2002 school year. Wife was able to return to teaching in the fall of 2002, but could no longer coach. As a result of her illness, Wife lost 70% of her kidney function and became a candidate for a kidney transplant. Wife’s treating physician reported that her medical future is uncertain and that she is unlikely to be able to maintain full-time employment if her condition worsens.

At the time of the dissolution hearing in December 2002, Wife’s monthly net income from teaching was $1,770 and her average living expenses were $2,102 per month. Due to her chronic illness, Wife was unable to work additional hours or jobs to cover her monthly budget shortfall of $330. Wife testified that she lacked sufficient resources to pay for such items as clothing, dental care, and recreation. Wife also did not have any income-producing property that could be used to help defray her monthly expenses. The trial court properly determined that Wife was entitled to maintenance under Section 452.335.1 because the evidence was sufficient to prove she was unable to meet her reasonable needs through appropriate employment or other available resources.

Despite the $330 shortfall in her monthly budget, Wife requested only nominal maintenance of $1.00 per month as a way of keeping the issue open for future consideration. Wife minimized her needs and was cautiously optimistic that she could manage the current budgetary deficit as long as her health did not preclude her from working. The trial court considered the, evidence and expressly analyzed the relevant factors of Section 452.335.2 in determining the amount of maintenance. The court awarded Wife $200 in monthly maintenance based on its finding that she “cannot support herself, and [Husband] is well able to assist in her support.”

On appeal, Husband argues the court was not authorized to award more than $1.00 in maintenance because Wife’s nominal request was an admission that she had no need for a greater amount. Husband disregards the undisputed evidence that Wife was unable to meet her reasonable needs. The court’s authority to determine the amount of maintenance is dictated by the requirements of Section 452.335. The statute “imposes an independent duty on the court to achieve a just result based on all the factors in the record. The question is whether the court erred in attempting to carry out the statutory directives.” Hammer, 139 S.W.3d at 246.

“If there is a gap between the ‘reasonable needs’ of the spouse and the resources and potential earnings of that spouse, and the other spouse has the ability to pay maintenance, maintenance should be awarded.” Id. at 241. Based on the evidence showing that Wife’s reasonable expenses exceeded her income by $330 monthly, the court had a duty to determine a fair amount of maintenance. Husband has never disputed his ability to pay maintenance. Wife’s request for nominal maintenance was inconsistent with the evidence that she was unable to meet her reasonable needs. The $200 maintenance award was within Wife’s range of need and within Husband’s ability to pay. Under the circumstances, the court had authority under Section 452.335 to award permanent maintenance in that amount.

Conclusion

Wife’s motion to dismiss the appeal is denied. The trial court’s judgment is affirmed.

All concur.

      . Wife has filed a Motion to Dismiss the appeal, alleging Husband’s brief fails to comply with Rule 84.04(d). Because the issues on appeal are readily ascertainable, we deny the Motion and exercise our discretion to provide the parties with a determination on the merits. Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 639 (Mo.App.2001).

      . All statutory references are to Revised Statutes of Missouri (2000).

      . All rule citations are to the Missouri Rules of Civil Procedure (2004).

      . Wife suffers from Wegener’s Granulamato-sis, an immune deficiency disease in which the inflammation of blood vessels causes damage to important organs of the body by limiting blood flow and destroying normal tissue. The disease primarily affects the respiratory system (sinuses, nose, trachea, and lungs) and the kidneys.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    Brian GOUDEAU, Movant, v. STATE of Missouri, Respondent.
    No. 26204.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 7, 2005.

      Mark A. Grothoff, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Brian Goudeau (“Movant”) appeals from the motion court’s denial of his Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence brought pursuant to Rule 29.15. Movant was convicted by a jury of robbery in the first degree, a violation of section 569.020, and was sentenced to twenty years in the Missouri Department of Corrections. Movant was also charged and sentenced as a prior offender pursuant to section 558.016. Movant appealed his conviction and this Court affirmed the judgment and sentence. See State v. Goudeau, 85 S.W.3d 126 (Mo.App.2002). Following an evidentiary hearing on Movant’s Rule 29.15 motion, the motion court denied relief. Appellant now raises two points on appeal, discussed more fully below, based on his having received ineffective assistance of counsel.

Viewing the record in the light most favorable to conviction, State v. King, 865 S.W.2d 845, 846 (Mo.App.1993), it reveals that on the evening of October 18, 1999, Movant approached William Hill (“Hill”), a cashier at a Git-N-Go store in Springfield, Missouri. Movant asked Hill for “some change from the register” and when Hill told Movant he would “lose [his] job for something like that”, Movant’s tone of voice changed. According to Hill, Movant then pulled back his jacket to reveal a gun stuck in between his belt and his shirt. Hill gave Appellant all of the bills that were in the register, which was twenty-five to thirty dollars, and Movant left the store. Immediately after Movant left the Gfc-N-Go, HD1 informed his co-worker, Scott Bough (“Bough”), that the store had just been robbed. Bough then went outside the store and saw Movant running up the street.

Later in the day, Officer David Manteris (“Manteris”) investigated a report regarding a man with a gun at a park a block away from the Git-N-Go. Manteris found Movant at the scene. When interviewed by Manteris, Movant, who was wearing different clothes than the previous evening, initially denied having any knowledge of a gun. When Manteris discovered a weapon “buried in some mulch,” Movant admitted that the weapon, which turned out to be a pellet gun, belonged to him, but he denied being involved in the Git-N-Go robbery. Movant was thereafter charged as a prior offender with robbery in the first degree. As previously related, at trial he was found guilty beyond a reasonable doubt of robbery in the first degree and sentenced as a prior offender to twenty years in prison.

Appellate review of a motion court’s ruling on a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law issued in support thereof are clearly erroneous. Rule 29.15(k); see State v. Clay, 975 S.W.2d 121, 140 (Mo. banc 1998). The findings of the motion court are presumptively valid. Wilson v. State, 818 S.W.2d 883, 835 (Mo. banc 1991). Findings and conclusions are clearly erroneous only if, after review of the entire record, we are left with a definite and firm impression that a mistake has been made. State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997).

To prevail on a claim of ineffective assistance of counsel, Movant must establish by a preponderance of the evidence that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and the Movant’s claim of ineffective assistance of counsel must fail. Simmons, 955 S.W.2d at 746. To satisfy the performance prong, Movant “must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” Id. Prejudice exists where there is a reasonable probability that the outcome of the proceeding would have been different but for counsel’s ineffectiveness. Id.

In his first point on appeal, Movant posits the trial court’s “instruction to the jury that it did not intend for the jury to come back the next day ... when combined with the hammer instruction ... coerced the jury” into bringing a guilty verdict against him. He maintains that had his counsel objected to the trial court’s final directive, the outcome of his trial would have been different.

The record shows that Movant’s trial was held on March 19 and 20, 2001. Following closing arguments on the morning of March 20, 2001, the jury retired to begin its deliberations at 10:24 a.m. At 11:30 a.m., the jury submitted a request to the trial court. The jury requested the transcript of the arresting officer’s testimony and three exhibits. After consulting with counsel, the trial court allowed the jury to see the requested exhibits, but instructed the jury that they were to “rely upon [their] memory of the [officer’s] testimony” and declined to provide them with a transcript.

Thereafter, at 3:00 p.m., the foreperson of the jury submitted a note to the trial court which stated, “At what point or do I need to talk to the Judge concerning a strong division in the jury?” The trial court then informed counsel for both sides that he intended to read to the jury the “hammer instruction which is MAI-3d 312.10.” Movant’s trial counsel objected on the basis that he did not “think the jury ha[d] been out long enough” and did not know if it were “clear they’re absolutely deadlocked.” The trial court overruled the objection.

After deliberating for an additional hour, the jury submitted a third communication to the trial court at 4:25 p.m. The jury’s note stated, “At what time during this evening should we expect to come back tomorrow? We have some people that may need to call their employers.”

Without objection from Movant’s trial counsel, the trial court sent a response to the jury at 4:40 p.m. which read, ‘We do not plan for you to come back tomorrow. Please continue your deliberations. We’ll be glad to order dinner for you.”

At 5:05 p.m., the jury returned a guilty verdict.

“A verdict can only be considered coerced when it appears, under the totality of the circumstances, that the trial court was virtually mandating that a verdict .be reached, and by implication, it would hold the jury until such occurrence.” State v. Evans, 122 S.W.3d at 734.

Movant maintains the present situation is akin to that found in State v. Mason, 588 S.W.2d 731 (Mo.App.1979), and in State v. McNail, 767 S.W.2d 84 (Mo.App.1989).

In Mason, after reading the hammer instruction to the jury, the trial court asked the jury, “Do you think if you had another fifteen minutes you might reach a verdict?” Mason, 588 S.W.2d at 734. “Fifteen minutes later the jury returned with a verdict....” Id. On appeal, the appellate court found the trial court imposed a deadline on the jury’s deliberations and that the statement went “ ‘to the heart of the judge-jury relationship as it affects the fundamental right to a fair and impartial trial.’ ” Id. (quoting Burroughs v. United States, 365 F.2d 431, 434 (10th Cir.1966)). The Mason court found that although the hammer instruction “was properly given, the imposition of a fifteen minute time limit, and the trial court’s virtual directive that a verdict be reached required reversal....” Id.

In McNail, during the course of seven hours of jury deliberations on a Saturday, the jury sent two notes to the trial court indicating a deadlock. McNail, 767 S.W.2d at 86. One such note stated that two jurors voting not guilty could not compromise their opinions, and the other inquired as to how long the jury would be required to deliberate before a hung jury was declared. Id. The court gave the hammer instruction and after an hour without a verdict, the court had the sheriff inform the jury that they would be sent to a hotel for a break and they would resume deliberations on Sunday. Id. The jury returned a guilty verdict ten minutes later. Id. at 87. The appellate court held that “[t]he totality of the circumstances here bespeak coercion” and reversed the conviction. Id. at 86.

In the present matter, while Movant is certainly correct that it is improper for the court to urge the jury to strive for a verdict by a certain time, the trial court in this case neither set time limits upon the jury’s deliberations nor told the jury they were required to reach a verdict as in Mason and McNail. Rather, it is our view that the trial court’s actions did not amount to a mandate that a verdict be reached within a certain time frame or reflect any type of coercion on the part of the trial court. This is because, first, there is no indication that the jury considered the judge’s comment as a mandate to the jury that it had to render a verdict. “The trial court’s comment herein did not state in unequivocal terms that the jurors must reach a verdict in the case.” Johnson, 948 S.W.2d at 165. Second, there was nothing in the trial court’s remarks to suggest that the jury could not take all of the time it needed in reaching a verdict. See State v. Crump, 454 S.W.2d 519, 522 (Mo.1970). Also, “[t]he tone of the dialogue in the present case does not convey a sense of pressure being put on the jury.” State v. Haymon, 616 S.W.2d 805, 809 (Mo. banc 1981). Third, from our review of the entire record, the trial court’s comments were directed more toward the trial court’s own scheduling issues than toward a deadline for the jury deliberations. “[W]e note the trial court did not in any way suggest [it] would keep them there all night, tell them to hurry, or otherwise pressure the jury.” State v. Carey, 808 S.W.2d 861, 867 (Mo.App.1991). Additionally, this Court has already determined in Movant’s direct appeal that the trial court’s instruction caused no manifest injustice or miscarriage of justice and did not warrant plain error relief under Rule 30.20. See Goudeau, 85 S.W.3d at 128-30; see also Barnett v. State, 99 S.W.3d 21, 24 (Mo.App.2003). Indeed, the jury was polled following the verdict, the result of which was a finding that all the jurors voted to convict Movant. See State v. Dodd, 10 S.W.3d 546, 551-52 (Mo.App.1999).

Accordingly, under the totality of the circumstances, the trial court did not coerce the jury into returning a verdict by its remark that the court was not contemplating returning the next day, despite its having given the hammer instruction.

Additionally, we observe the motion court determined defense counsel’s actions, in failing to object to the trial court’s final directive, comported with reasonable trial strategy. “Counsel is afforded broad latitude as to questions of trial strategy.” State v. Hamilton, 892 S.W.2d 774, 784 (Mo.App.1995). “A court will not find ineffective assistance where the conduct complained of by the accused involves counsel’s use of reasonable discretion in a matter of trial strategy.” Id. Trial counsel is not judged ineffective simply because in retrospect his or her decision may seem to be an error in judgment. State v. Huggans, 868 S.W.2d 523, 526 (Mo.App.1993). We do not require that trial counsel make non-meritorious objections. Jameson v. State, 125 S.W.3d 885, 891 (Mo.App.2004). “If a failure to object to a statement is based on reasonable trial strategy, then no ineffective assistance of counsel can be shown.” Chaney v. State, 73 S.W.3d 843, 851 (Mo.App.2002). Movant bears the burden of proving his counsel’s actions were prejudicial and there is a strong presumption “that counsel’s failure to object was sound trial strategy.” Helmig v. State, 42 S.W.3d 658, 679 (Mo.App.2001). Here, Movant does not meet that burden.

At the evidentiary hearing on Movant’s motion, Movant’s trial counsel testified that while he “should have” objected to the trial court’s request that the jury “continue [its] deliberations,” he did not do so because he thought “that instruction might get an outcome favorable to [Movant].” Further, he testified that he felt the jury’s final note might have been an indication that the jury “couldn’t reach a decision or an indication that they were not guilty, based on the fact that it had been that long that they’d been deliberating.”

In our view, trial counsel’s failure to object to the trial court’s final directive to the jury was based on reasonable trial strategy and no ineffective assistance of counsel can be shown. Chaney, 73 S.W.3d at 851. Point denied.

In his second point on appeal, Movant asserts the motion court erred in denying his post-conviction relief motion because his trial counsel was ineffective for failing to • object to the State’s improper closing argument. He maintains certain statements made by the prosecutor were false and the jury considered these improper statements in reaching its verdict, thereby prejudicing Movant.

“In arguing ineffectiveness, appellant must overcome a strong presumption that counsel’s performance was sound trial strategy.” Clay, 975 S.W.2d at 135. The standard for judging ineffective assistance for failure to object is clear:

In many instances seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes. It is feared that frequent objections irritate the jury and highlight the statements complained of, resulting in more harm than good.

Id. (quoting State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996)).

“The movant must prove that a failure to object was not strategic and that the failure to object was prejudicial.” Id. As previously set out, “[e]ounsel will not be deemed ineffective for failing to make non-meritorious objections.” Id.

At trial, Movant’s defense was that Hill and Bough had misidentified him and that instead of being at the Git-N-Go on the evening of the robbery, he was at his sister-in-law's house. Accordingly, during closing argument, Movant’s trial counsel asserted:

If Mr. Hill and Mr. Bough had seen [Movant], they would have described the scars [on his face]. They would have described the discoloration. They didn’t see him. They saw somebody that looked like him. [Movant], unfortunately, ended up in that park near there. Would he have gone to that park? Would he have kept the gun, if he did the robbery? Think about that when you go back there. That doesn’t make any sense. Common sense is that if he did that robbery, it’s — he’s not going to keep the weapon. He’s not going to go back to the park some 12 hours later or near the location. He’s just not going to do it.

During the State’s rebuttal argument that followed, the prosecutor stated:

What about the physical evidence? The gun isn’t physical evidence. Where is it found? In a park, half a block from the Git-N-Go. What do we know about the robber, [Movant]? When he left the store, which way did Mr. Bough see him going? Towards the park. What condition is the gun in when it’s found by the police officers 12 hours later? Buried in the mulch. I’d submit to you that the logical inference is that [Movant] robbed the Git-N-Go, he’s leaving and he’s got to ditch the gun, so he ditches it and hides it in the tree. Now if you’re coming back for your gun 12 hours later, you’re not going to come back in the same clothes you robbed the Gib-N-Go in only half a block away. And makes sense that he was in different clothes when he came back to retrieve that gun.

We note that in closing argument, the State may “make reasonable inferences from the evidence ... as long as the arguments are based upon the evidence presented at trial.” Vicory v. State, 81 S.W.3d 725, 731 (Mo.App.2002). The State is given considerably more leeway in closing argument when the argument is retaliatory in nature. State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994). “Even if the argument would otherwise be improper, a prosecutor may retaliate to an issue raised in the closing argument of Defendant.” State v. Matchett, 69 S.W.3d 493, 500 (Mo.App.2001). “[A] conviction will be reversed for improper argument only if it is established that the comment had a decisive effect on the jury’s determination.” State v. Sullivan, 935 S.W.2d 747, 759 (Mo.App.1996). “ ‘There must be a reasonable probability that, in the absence of these comments, the verdict would have been different.’ ” Id. (quoting State v. Roberts, 838 S.W.2d 126, 132 (Mo.App.1992)). “The burden is on [Movant] to prove the decisive significance” of the State’s comments. Id.

Movant has not persuaded this Court that the statements made by the State during closing argument were decisive in influencing the jury’s verdict. The State’s remarks were: (1) a retaliatory explanation of its theory of the case; (2) reasonable inferences drawn from the evidence before the jury; and, (3) not false statements. See Vicory, 81 S.W.3d at 731.

Additionally, Movant’s counsel cannot be convicted of “ineffective assistance where the conduct complained of by the accused involves counsel’s use of reasonable discretion in a matter of trial strategy.” Hamilton, 892 S.W.2d at 784. “It is only the exceptional case where a court will hold a strategic choice unsound.” Id.

At the evidentiary hearing in this matter, Movant’s trial counsel explained that he failed to object to the State’s rebuttal argument because “an obvious objection causes the Prosecutor to” further explain the situation and “draw[s] attention to that whole issue. I mean, that could have been explained by the State, if I had objected.”

Here, Movant’s counsel was exercising reasonable trial strategy in not objecting to the State’s closing argument. Clay, 975 S.W.2d at 135. Point Two is denied.

The judgment of the motion court is affirmed.

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

      . Unless otherwise specified, all Rule references are to Missouri Court Rules (2004) and all statutory references are to RSMo 2000.

      . Both Hill and Bough were later able to identify Movant in a photo lineup and at trial.

      . The requested exhibits were, respectively, the lineup photo containing Movant's picture; the artist’s sketch that was made from the descriptions given by Hill and Bough; and, the pellet gun.

      . The trial court then advised the jury in its Instruction No. 11 that:
      You should make every reasonable effort to reach a verdict, as it is desirable that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instructions of the Court, nor should a juror agree to a verdict of guilty unless he is convinced of the defendant’s guilt beyond a reasonable doubt.
      MAI-CR3d 312.10.
      A trial court may give the hammer instruction when it " 'deems it appropriate and when the length of deliberation or communication from the jury causes the Court to believe that the jury may be deadlocked.’ ” State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.1997) (quoting MAI-CR3d 312.10, Notes on Use 2). ‘TT]he giving of a hammer instruction, standing alone, is generally viewed as non-coercive because it promotes open discussion, tolerance, and the desirability of a unanimous verdict while admonishing each juror against basing a verdict on evidence he or she does not believe.” State v. Evans, 122 S.W.3d 731, 734 (Mo.App.2003). " 'A reversal is required if it is conceivable the challenged instruction or instructions coerced the jury into returning a verdict and nothing in the record is available to find otherwise.’ ” Id. (quoting State v. Bums, 808 S.W.2d 1, 3 (Mo.App.1991)).
      We observe that the common name of the instruction as a hammer instruction "is clearly a misnomer since the term 'Hammer' connotes coercion, and the instruction has been approved by the Missouri Supreme Court as being non-coercive in its directives when used properly.” State v. Richardson, 951 S.W.2d 718, 719 n. 2 (Mo.App.1997).


author: PATRICIA BRECKENRIDGE, Judge.

text:
    BLUE RIDGE BANK AND TRUST COMPANY, Appellant, v. John A. HART, Respondent Pro Se, Precision Automotive Corp., d/b/a Superior Acura, Respondent.
    No. WD 62720.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.

      Steven H. Mustoe, Kansas City, MO, for appellant.
    John A. Hart, Kansas City, MO, pro se.
    Robert 0. Jester, Brandon D. Mizner, Co-Counsel, Kansas City, MO, for respondents Precision Automotive Corp., d/b/a Superior Acura.
    Before ELLIS, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Blue Ridge Bank and Trust Company appeals the trial court’s judgment in favor of Superior Acura on Blue Ridge Bank’s claim for conversion of a 2001 Cadillac that was originally purchased by John Hart, financed by Blue Ridge Bank, and subsequently sold to Superior Acura. On appeal, Blue Ridge Bank claims that the trial court erred in finding that Blue Ridge Bank failed to prove its claim of conversion because its hen was not perfected when Superior Acura purchased the vehicle. Blue Ridge Bank asserts that it properly perfected its security interest by fifing a notice of lien prior to Superior Acura’s purchase of the vehicle; Blue Ridge Bank was not required to file a financing statement for its lien to remain perfected because section 400.9-311(d), RSMo Cum. Supp.2003, was not applicable since the vehicle was not held for sale as inventory; Blue Ridge Bank had no statutory duty to ensure the fifing of an application for a new title; and the buyer-in-the-ordinary-course defense was inapplicable. Because this court finds that Blue Ridge Bank was required to file a financing statement for its lien on the vehicle to remain perfected, which Blue Ridge Bank conceded it did not do, the judgment of the trial court is affirmed.

Factual and Procedural Background

On September 27, 2001, Enterprise Leasing of Kansas sold a 2001 Cadillac through P & S Auto Auction. On the back of the vehicle’s certificate of title, “Better Than New LLC” was recorded as the purchaser and John Hart signed the title as its agent. The title further indicated that, on or about October 17, 2001, Better Than New LLC, through its agent, Tom Sudik, sold the vehicle to Mr. Hart.

To finance the purchase of the vehicle, Mr. Hart applied for a loan from Blue Ridge Bank on October 19, 2001. The vehicle was still at the auto auction at that time. Mr. Hart presented Blue Ridge Bank with the vehicle’s title. On his credit application, Mr. Hart indicated that he was employed, as general manager, by “BTN Auto.” On Blue Ridge Bank’s disbursement request and authorization form, Mr. Hart checked a box indicating that the primary purpose of the loan was for “Personal, Family, or Household Purposes or Personal Investment.” The income tax returns, which Mr. Hart provided to Blue Ridge Bank in support of his application, stated that his occupation was “Auto Sales” and his spouse’s occupation was “Automobile Dealer.” In addition, Mr. Hart’s tax documents reported income loss from Better Than New LLC. Mr. Hart’s credit report obtained by Blue Ridge Bank also indicated that he was the owner of Better Than New Auto.

Based on the documents provided by Mr. Hart in support of his loan application, Blue Ridge Bank agreed to loan Mr. Hart $30,700 to purchase the vehicle. To secure the loan, Mr. Hart and Blue Ridge Bank entered into a security agreement, whereby Mr. Hart granted Blue Ridge Bank a security interest in the vehicle. Blue Ridge Bank disbursed the loan proceeds in two checks: one check payable to “P and S Auto Auction” for $25,575; and one check payable to John A. Hart for the balance of the loan, $5,075, less a $50 loan closing fee. Thereafter, on October 25, 2001, Blue Ridge Bank filed a notice of lien with the Missouri Director of Revenue. Blue Ridge Bank did not file any other documents with the Director, such as a ■ financing statement. Neither Mr. Hart nor Blue Ridge Bank ever filed an application for new title.

On November 10, 2001, application was made to the Director for a duplicate title for the vehicle. The application indicated that the owner of the vehicle was Enterprise Leasing, that no liens existed on the vehicle, and that the duplicate title should be sent to Pitts Title Service in Independence. Consequently, the Director issued a duplicate title for the vehicle, which named Enterprise Leasing as the owner. The duplicate title did not indicate Blue Ridge Bank’s lien.

An assignment of the vehicle was subsequently made on the back of the duplicate title from Enterprise Leasing to Poor Boys Auto. On November 30, 2001, Mr. Hart drove the car to Superior Aeura and met with Christopher Expósito, Superior Acura’s general manager, whom Mr. Hart had known for ten years. Although Mr. Expósito was familiar with Mr. Hart, Mr. Expósito had not previously done business with him. Mr. Hart represented himself as a car dealer to Mr. Expósito and told him that he had a customer who wanted a car that Superior Acura had for sale. Mr. Hart proposed trading the Cadillac for Superior Acura’s car. Mr. Expósito observed that the Cadillac had Missouri used-car-dealer’s tags. An agreement was reached, and Mr. Hart sold the vehicle to Superior Acura for $23,500. Mr. Hart signed the duplicate title as an agent of Poor Boys Auto. Unaware of the existence of Blue Ridge Bank’s lien, Superior Acura sold the vehicle to Superior Buick Cadillac for $24,100 on December 11, 2001. Superi- or Buick Cadillac then sold the vehicle to a Kansas resident. Blue Ridge Bank had no knowledge of and received no proceeds from any of the sales.

In early 2002, Blue Ridge Bank learned of the sales of the Cadillac. Eventually, it was discovered that both the application for duplicate title and the assignment on the back of the duplicate title contained the forged signatures of individuals from Enterprise Leasing. On March 18, 2002, Blue Ridge Bank filed a three-count petition. In Count I, Blue Ridge Bank sought a judgment against Mr. Hart on its promissory note. In Count II, Blue Ridge Bank sought damages in the amount of $82,000 from Superior Acura for conversion of the car. In Count III, Blue Ridge Bank sought punitive damages from Mr. Hart for fraud.

On January 16, 2003, the trial court conducted a bench trial. Mr. Hart, who was in default for fading to answer, failed to appear at trial. Blue Ridge Bank and Superior Acura appeared and offered evidence. On January 31, 2003, the trial court entered a default judgment in favor of Blue Ridge Bank and against Mr. Hart on Counts I and III for principle and interest in the sum of $32,605.09; $14,369 in attorney’s fees and expenses; and $32,605.09 in punitive damages. The trial court granted judgment in favor of Superi- or Acura on Blue Ridge Bank’s claim in Count II for conversion.

Regarding its judgment in favor of Superior Acura, the trial court found that Blue Ridge Bank had not proved its cause of action for conversion. First, it found that Blue Ridge Bank had not perfected its lien on the vehicle. Specifically, the court found that Blue Ridge Bank failed to file a financing statement, which was required by section 400.9-311(d) because the collateral was inventory, held by a person in the business of selling vehicles. The trial court also found that, even if a financing-statement was not required, Blue Ridge Bank had not perfected its hen because it never ensured that an application for a new title was filed with the Director, as required by sections 301.600 and 301.620. Alternatively, the trial court found that even if Blue Ridge Bank’s lien on the vehicle was perfected, Superior Acura was a purchaser in the ordinary course of business and, consequently, took the vehicle free of even a perfected hen. Finally, the trial court found that Blue Ridge Bank did not have the right to possess the vehicle until after Superior Acura had already resold it. Following the trial court’s denial of Blue Ridge Bank’s motion to amend and reconsider the judgment, Blue Ridge Bank filed this appeal.

Notice of Appeal was Timely

Before reaching the merits of Blue Ridge Bank’s appeal, it is necessary to address Superior Acura’s argument, contained in its jurisdictional statement, that Blue Ridge Bank’s notice of appeal was untimely, thereby divesting this court of jurisdiction. “The filing of a timely notice of appeal is mandatory and jurisdictional.” Gollehon v. Branson, 603 S.W.2d 56, 57 (Mo.App.1980). A notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final. Rule 81.04(a). “For the purpose of ascertaining the time within which an appeal may be taken ... [a] judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed.” Rule 81.05(a).

When a party files an authorized after-trial motion, the judgment becomes final at the end of ninety days, if the trial court fails to rule on the after-trial motion. Rule 81.05(a)(2)(A). If the court rules on the motion, the judgment becomes final on “the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.” Rule 81.05(a)(2)(B). There are six after-trial motions authorized under the Supreme Court Rules:

[A] motion to dismiss without prejudice after the introduction of evidence is commenced under Rule 67.01; a motion for a directed verdict under Rule 72.01(a); a motion for judgment notwithstanding the verdict under Rule 72.01(b); a motion to amend the judgment [under then] Rule 73.01(a)(3), [now Rule 78.04]; a motion for relief from judgment or order under Rule 74.06(a) and (b), but see, Rule 74.06(c); and a motion for a new trial under Rule 78.

Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 392 n. 1 (Mo. banc 1993).

On March 3, 2003, Blue Ridge Bank filed a motion titled, “Motion to Amend and Reconsider Judgment.” In the motion, Blue Ridge Bank argued that the trial court should amend its judgment to conform to the single basis the court stated in open court at the conclusion of the trial, which was that, to perfect its lien, Blue Ridge Bank should have filed a financing statement. Blue Ridge Bank also asked the trial court to reconsider its declaration or application of the law and challenged that there was substantial evidence to support its findings. Although it cited authority for its substantive claims of error, Blue Ridge Bank did not cite any rule or statute as authority for its after-trial motion.

On appeal, Superior Acura contends that Blue Ridge Bank’s motion was not an authorized after-trial motion because the motion did not cite any specific statutory authority for invoking the trial court’s jurisdiction. Since it was not an authorized after-trial motion, Superior Acura argues that the motion was insufficient to extend the trial court’s jurisdiction beyond thirty days after the judgment was entered. Consequently, Superior Acura contends that Blue Ridge Bank’s notice of appeal was untimely.

To support its claim that a specific statutory cite in the motion was required, Superior Acura relies on State, Department of Labor and Industrial Relations v. Ron Woods Mechanical, Inc., 926 S.W.2d 537, 540 (Mo.App.1996). In Ron Woods, this court rejected a party’s claim that its motion to vacate, which “expressly invoked” Rule 75.01, could be construed as a motion to amend under then-Rule 73.01(a)(5), which is now found in Rule 78.07(c). Id. This court held that the party’s “failure to specifically rely on Rule 73.01(a)(5) in their motion is sufficient, in itself, to deny it the benefits of the rule.” Id.

Refusing to consider the allegations of a motion solely because the motion fails to cite the specific rule under which it is authorized, however, exalts form over substance. See Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000) (stating that “[a] pleading is judged by its subject matter-not its caption”); State ex rel. Goldberg v. Darnold, 604 S.W.2d 826, 830 (Mo.App.1980) (noting that “[t]he legal effect of a pleading as a statement for relief, ... is determined not by the rubric but by the substance of the recitals”), superseded by statute on other grounds as stated in Kansas Ass’n of Private Investigators v. Mulvihill, 35 S.W.3d 425, 431 (Mo.App.2000).

This practice also appears to be contrary to Missouri Supreme Court cases that espouse treating after-trial motions based upon the allegations contained in the motion, regardless of the motion’s style or form. In Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 393 (Mo. banc 1993), the Supreme Court held that a motion titled, “Motion to Reconsider the Order of the Court Granting Defendant’s Motion for Summary Judgment” was appropriately treated as a motion for new trial. In so holding, the Court noted that the motion, “despite its odd style, places before the trial court allegations of error.” Id. The Court reiterated this principle in Massman Construction Co. v. Missouri Highway and Transportation Commission, 914 S.W.2d 801, 803 (Mo. banc 1996), noting “the general tendency of courts to construe improperly titled or crudely fashioned after-trial motions liberally as motions for new trial.” To the extent that Ron Woods and other cases from this court can be read to require a party to cite the specific rule under which its substantively-sufficient after-trial motion is made or else the motion will not be considered or reviewed as an authorized after-trial motion, they appear to be in conflict with Taylor and Massman and, therefore, should no longer be followed.

Looking at the substance of Blue Ridge Bank’s motion, the motion alleged errors in the language of the judgment and, thus, qualified as a motion to amend the judgment. Rule 78.07(a)(2). The motion also alleged errors of fact and law in the trial and, therefore, qualified as a motion for new trial. Taylor, 854 S.W.2d at 392. As a motion to amend and a motion for new trial are authorized after-trial motions, Blue Ridge Bank’s filing of its motion extended the time within which the January 31, 2003 judgment became final. The trial court ruled on the motion on April 9, 2003. Blue Ridge Bank had ten days from this date to file its notice of appeal. Blue Ridge Bank filed its notice of appeal on April 14, 2003. The notice of appeal was timely, and this court has jurisdiction over the appeal.

Standard of Review

In a court-tried case, this court will affirm the trial court’s judgment unless no substantial evidence supports 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). This court reviews the evidence, along with all reasonable inferences, in the light most favorable to the trial court’s judgment and disregards all contrary evidence and inferences. Wildflower Cmty. Ass’n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App.2000). As the trier of fact, the trial court determines the credibility of witnesses and is free to believe or disbelieve all or part of the witnesses’ testimony. Ken Cucchi Constr., Inc. v. O’Keefe, 973 S.W.2d 520, 524 (Mo.App.1998).

Blue Ridge Bank’s Lien was Unperfected

In its first point on appeal, Blue Ridge Bank argues that the trial court erred in finding that it was required by section 400.9-311(d) to file a financing statement to perfect its lien on the Cadillac. It asserts that subsection (d) of section 400.9-311 is inapplicable because the Cadillac was not inventory at the time the lien was created and the debtor creating the security interest, John Hart, was not the same person as the seller to Superior Acura, Poor Boys Auto.

The Uniform Commercial Code normally requires the filing of a financing statement to perfect a security interest. Section 400.9-310(a). There are exceptions in subsection (b) of section 400.9-310, however, to this normal requirement. One of those exceptions is when the security interest is in property that is governed by a statute, regulation, or treaty, as described in section 400.9-311(a). Section 400.9-310(b)(3). The exception applies when a security interest in property is subject to a specific statute that has “requirements for [the] security interest’s obtaining priority over the rights of a lien creditor.” Section 400.9-311(a). Compliance with those requirements is the equivalent to the filing of a financing statement under the UCC. Section 400.9-311(b). In addition to the description in subsection (a) of the property fitting within the exception, the other subsections of section 400.9-311 set out the perimeters of the exception.

Subsections (b)-(d) address the duration of the perfection of a security interest in goods covered by a certificate of title that was perfected by filing a notice of lien and when it remains perfected. Under (b), the legislature provided that a security interest in property subject to a statute, regulation, or treaty, that is properly perfected, remains perfected notwithstanding a change in use or transfer of possession of the property, except, inter alia, as otherwise provided in subsection (d). Subsection (c) states that the duration and renewal of the perfection of a security interest in this type of property are governed by those statutes, regulations, or treaties. Section 400.9-311(c). Finally, subsection (d) provides that, for security interests in goods covered by a certificate of title that are inventory held for sale by the maker of the security interest, there is an exception to the rule that a security interest once perfected remains perfected despite a change in use or transfer of possession. Subsection (d) requires the filing of a financing statement if such a change occurs. The full text of subsections (b)-(d) of Section 400.9-311 read:

(b) Compliance with the requirements of a statute, regulation, or treaty described in subsection (a) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this article. Except as otherwise provided in subsection (d) and sections 400.9-313 and 400.9 — 316(d) and (e) for goods covered by a certificate of title, a security interest in property subject to a statute, regulation, or treaty described in subsection (a) may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.
(c) Except as otherwise provided in subsection (d) and section 400.9-316(d) and (e), duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation, or treaty described in subsection (a) are governed by the statute, regulation, or treaty. In other respects, the security interest is subject to this article.
(d) During any period in which collateral is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling or leasing goods of that kind, this section does not apply to a security interest in that collateral created by that person as debtor.

Within the statutes listed in subsection (a) within the exception for property that is subject to a statute, regulation, or treaty, where the normal requirement of filing a financing statement is not necessary or effective to perfect a security interest, are sections 301.600 to 301.661, pertaining to motor vehicles. See also Ford Motor Credit Co. v. Pedersen, 575 S.W.2d 916, 918 (Mo.App.1978) (“Section [400.9-311] of the Uniform Commercial Code relating to the perfection of liens by filing [a financing statement] does not apply to automobiles.”).

Three of the statutes within those named in subparagraph (2) of 400.9-311(a), sections 301.600 to 301.661, govern the method of perfecting a lien on motor vehicles. Section 301.600.2 provides that “a lien or encumbrance on a motor vehicle is perfected by the delivery to the director of revenue of a notice of lien.” Section 301.620(2) establishes that the lienholder has the responsibility to deliver to the director the notice of lien. Section 400.9-303(d) provides that, when a notice of lien is filed as directed by chapter 306, “then the hen is perfected ... even though a valid application for a certificate of title and the applicable fee was [sic] not delivered to the appropriate authority or the certificate of title was not issued by such authority,” as occurred in this case.

Relying on its compliance with sections 301.600 and 301.620(2), Blue Ridge Bank asserts that its lien was properly perfected and evidence of the sale of the vehicle without payment of the debt or permission of Blue Ridge Bank was proof of a conversion by Superior Acura. It argues that the trial court’s application of the provisions of section 400.9-311(d) to find that it was required to file a financing statement to perfect its lien was not supported by the evidence and was a misapplication of the law.

The trial court applied subsection (d) after finding that the Cadillac was inventory held for sale by Mr. Hart, Mr. Hart was in the business of selling goods such as the Cadillac, Mr. Hart created the security interest in the Cadillac, and Mr. Hart sold the Cadillac to Superior Acura. Because the trial court found that all the conditions of section 400.9 — 311(d) were met, the court held that the case was governed by the normal rule of the UCC, that a financing statement must be filed to perfect a security interest, rather than the exception that a security interest in a motor vehicle is perfected by filing a notice of lien.

Blue Ridge Bank concedes that, under section 400.9-311(d), where the creator of the lien was a motor vehicle dealer who holds a vehicle for sale as inventory, the perfection of a security interest is not accomplished through filing a notice of lien in compliance with the certificate-of-title statutes but, instead, through the filing of a financing statement. Thus, Blue Ridge Bank was required to file a financing statement to perfect its lien if (1) the vehicle was inventory held for sale by Mr. Hart; (2) Mr. Hart was in the business of selling vehicles; and (3) Mr. Hart, as the debtor, created the security interest. Blue Ridge Bank does not dispute that Mr. Hart was in the business of selling motor vehicles, and that Mr. Hart was the creator of the security interest in the 2001 Cadillac. Blue Ridge Bank disputes only that the 2001 Cadillac was held for sale by Mr. Hart, the debtor who created the security interest, and that there was substantial evidence that the vehicle was held for sale as inventory.

Blue Ridge Bank contends the 2001 Cadillac was not held for sale by Mr. Hart because Poor Boys Auto, and not Mr. Hart, actually sold the vehicle to Superior Acura. Blue Ridge Bank’s argument that Poor Boys Auto was the “person” who sold the vehicle to Superior Acura is founded on Poor Boys’ apparent ownership of the vehicle based on the duplicate title, which shows an assignment from Enterprise Leasing to Poor Boys Auto. In Missouri, however, “a certificate of title to a motor vehicle is not conclusive proof of the ownership of such vehicle but is only prima facie evidence of ownership, capable of being rebutted by other evidence.” Landshire Food Serv., Inc. v. Coghill, 709 S.W.2d 509, 512 (Mo.App.1986). In this case, Poor Boys’ ownership of the vehicle was clearly rebutted by the evidence. The signature on the duplicate title, which allegedly transferred the vehicle to Poor Boys Auto, was forged. Consequently, title to the vehicle did not pass to Poor Boys Auto and, therefore, Poor Boys Auto acquired no ownership interest in the vehicle. See id. Thus, Poor Boys Auto could not have sold the vehicle to Superior Acu-ra.

Because Poor Boys Auto acquired no ownership interest in the vehicle, only Mr. Hart could have sold the vehicle as the owner under the. original, legitimate certificate of title. Additional facts supporting the conclusion that Mr. Hart sold the Cadillac were that he had possession of the vehicle, personally negotiated the sale, and signed the title over to Superior Acura. Although Mr. Hart purported to be selling the vehicle as an agent of Poor Boys Auto, there was no evidence in the record that Poor Boys Auto was a viable entity, separate from Mr. Hart, that could legally hold title to the Cadillac. For example, there was no indicia of corporate status in the name, as required by section 351.110, RSMo 2000. This was substantial evidence to support the trial court’s finding that Mr. Hart held the vehicle for sale as required by section 400.9-311(d).

Blue Ridge Bank next argues that the record contains no evidence that the vehicle was inventory at the time it made the loan. In particular, Blue Ridge Bank argues that the only evidence concerning the status of the car at the time it made the loan was information Mr. Hart provided to Blue Ridge Bank on the loan application. On the loan application, Mr. Hart indicated that he intended to use the vehicle for his own personal use. Therefore, Blue Ridge Bank argues that even though the vehicle may have been inventory at a point in time before or after it made the loan to Mr. Hart, at the time it made the loan to Mr. Hart, the vehicle was a consumer good. Blue Ridge Bank concludes that proper perfection of its lien, at the time the loan was made, protects it even if there was a subsequent change in the use of the vehicle from personal use to inventory.

Even if Blue Ridge Bank had properly perfected its lien during a period of time in which the vehicle was a consumer good, such a lien would not remain perfected “during any period in which [the vehicle] is inventory.” See section 400.9-311(b) and (d). See also In re Babaeian Transp. Co., 206 B.R. 536, 547-48 (Bankr.C.D.Cal.1997). Generally, under subsection (b) of section 400.9-311, a security interest perfected by compliance with the certificate-of-title statute “remains perfected notwithstanding a change in the use or transfer of possession of the collateral,” “[ejxcept as otherwise provided in subsection (d),” i.e., during any period in which the collateral is inventory. (Emphasis added.) If a security interest in collateral had been properly perfected while the collateral was a consumer good and, then, subsequently, use of the collateral changed to equipment, the security interest would remain perfected. If, however, the use of the collateral changes to inventory, compliance with the certificate of title statute does not remain effective. Section 400.9-311(b) and (d). The first phrase of section 400.9-311(d) states that “[d luring any period in which collateral is inventory” the certificate of title statute is inapplicable to perfect a security interest. (Emphasis added.) The phrase “during any period” contemplates that collateral may be a consumer good (or equipment or farm products) at one point in time, during which perfection under the certificate-of-title statute is required and effective. See In re Babaeian, 206 B.R. at 547.

As noted by the Official Comments to the UCC, “[i]f the debtor takes goods of this kind out of inventory and uses them, say, as equipment, a filed financing statement would not remain effective to perfect a security interest.” Section 400.9-311 Comment 4 (2003). Correspondingly, if the debtor takes a consumer good and places it in inventory, prior compliance with a certificate-of-title statute does not remain effective to perfect a security interest in such collateral during the period of time it is held as inventory. Rather, during any period of time that the collateral is inventory, a security interest is perfected only if a financing statement is filed. See section 400.9-311(d). Perfection under the certificate-of-title statute is not effective during any period of time in which the collateral is held as inventory. Thus, even if Blue Ridge Bank had properly perfected its security interest in the vehicle during a period of time in which Mr. Hart may have held the vehicle as a consumer good, the evidence was that, when Mr. Hart sold the vehicle to Superior Acura, the collateral was inventory and, therefore, Blue Ridge Bank’s security interest would not have remained perfected.

At the time Mr. Hart held the vehicle for sale to Superior Acura, he represented himself as a car dealer, drove the Cadillac with used-car-dealer tags, and negotiated a trade of the Cadillac to acquire a vehicle desired by a customer of Mr. Hart. These facts are sufficient to support the trial court’s finding that the vehicle was inventory when it was held for sale. During that period of time, Blue Ridge Bank’s security interest would remain perfected only if it had filed a financing statement, which Blue Ridge Bank conceded it did not do. Consequently, when Mr. Hart sold the vehicle to Superior Acura, Blue Ridge Bank’s security interest was unper-fected.

Under section 400.9-317(b), “a buyer, other than a secured party, of ... goods ... takes free of a security interest ... if the buyer gives value and receives delivery of the collateral without knowledge of the security interest ... and before it is perfected.” (Emphasis added.) In this case, it is undisputed that Superior Acura purchased the 2001 Cadillac for value, i.e., $23,500, received delivery of the vehicle, and was without knowledge of Blue Ridge Bank’s security interest. Because Blue Ridge Bank’s security interest was unper-fected at the time of sale and delivery of the vehicle to Superior Acura, Superior Acura took the vehicle free of Blue Ridge' Bank’s security interest. Thus, the trial court did not err in entering judgment in favor of Superior Acura. Because this ruling is dispositive of the appeal, this court need not address Blue Ridge Bank’s other allegations of error.

The judgment of the trial court is affirmed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri Cumulative Supplement 2003, unless otherwise indicated.

      .While the legal file contains Superior Acu-ra’s answer to Blue Ridge Bank’s amended petition, it contains only Blue Ridge Bank’s original petition and does not contain the amended petition.

      . At the time of trial, Mr. Hart owed a principal balance of $30,163.84 on his loan with Blue Ridge Bank for the vehicle.

      . Mr. Hart is not a party to this appeal.

      . Rule 74.06(c) provides:
      A motion under subdivision (b) does not affect the finality of a judgment or suspend its operation. The motion shall be made within a reasonable time and for reasons (1) and (2) and (3) of subdivision (b) not more than one year after the judgment or order was entered. The motion and a notice of a time and place for hearing on the motion shall be served upon the parties to the judgment pursuant to Rule 54.

      . Because the validity of the after-trial motion impacts the timeliness of the appeal, the issue is jurisdictional and may be raised for the first time on appeal. See D.A.D. v. J.B.D., 81 S.W.3d 2, 3 (Mo.App.2002).

      . This principle has been applied in several intermediate appellate court cases. See, e.g., Glandon v. Daimler Chrysler Corp., 142 S.W.3d 174, 177 (Mo.App.2004); Ort v. DaimlerChrysler Corp., 138 S.W.3d 777, 779 (Mo.App.2004); State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 955-56 (Mo.App.1998); Miller v. Enyeart, 893 S.W.2d 901, 903 (Mo.App.1995); Brown v. Beeney, 756 S.W.2d 940, 942 (Mo.App.1988); Farmers State Bank v. Place-Wiederholt Chevrolet-Oldsmobile, Inc., 747 S.W.2d 170, 172 (Mo.App.1988).

      . See, e.g., Dangerfield v. City of Kansas City, 108 S.W.3d 769, 774 (Mo.App.2003); Am. Family Mut. Ins. Co. v. Hart, 41 S.W.3d 504, 512 (Mo.App.2000); Koppenaal v. Dir. of Revenue, 987 S.W.2d 446, 451 (Mo.App.1999); Burns v. Dir. of Revenue, 784 S.W.2d 918, 919-20 (Mo.App.1990). This court also disagrees with decisions from the other districts of this court that also appear to conflict with Massman and Taylor, including Puisis v. Puisis, 90 S.W.3d 169, 172 n. 3 (Mo.App.2002); Wooten v. Williams, 827 S.W.2d 282, 284 n. 2 (Mo.App.1992); In re Marriage of Turner, 803 S.W.2d 655, 659 (Mo.App.1991); and Higgins v. Dir. of Revenue, 778 S.W.2d 24, 27 (Mo.App.1989).

      . Section 400.9-311(a) reads, in pertinent part:
      (a) Except as otherwise provided in subsection (d), the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to:
      (1) A statute, regulation, or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt section 400.9-310(a);
      (2) Sections 301.600 to 301.661, RSMo, and section 400.2A-304[.]

      . This court recognizes that the applicable statute in In re Babaeian is unique to California. The “during any period in which collateral is inventory” language of California’s statute, however, is the same as section 400.9-311(d). Thus, this court finds the analysis in In re Babaeian persuasive on this issue. This court expresses no opinion on other issues addressed by In re Babaeian.

      . UCC comments are a permissible and persuasive aid in determining legislative intent, even though they do not constitute binding authority. Bracey v. Monsanto Co., 823 S.W.2d 946, 950 n. 6 (Mo. banc 1992) (citing Groppel Co. v. U.S. Gypsum Co., 616 S.W.2d 49, 57 n. 7 (Mo.App.1981)).

      . Blue Ridge Bank also argues that section 400.9-31 l(d)'s requirement that the filing of a financing statement is required to perfect a security interest in a vehicle that is held as inventory contradicts the plain language of section 400.9-303(d). Section 400.9-303(d) provides:
      When a notice of lien is filed in accordance with chapter 301 or 306, RSMo, then the lien is perfected and this chapter shall not govern perfection or nonperfection or the priority of the lien even though a valid application for a certificate of title and the applicable fee was not delivered to the appropriate authority or the certificate of title was not issued by such authority.
      In construing a statute, consideration must be given to other statutes "involving similar or related subject matter when such statutes shed light upon meaning of the statute being construed.” State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). "All consistent statutes relating to the same subject are in pari materia and are construed together as though constituting one act, whether adopted at different dates or separated by long or short intervals.” Id. Sections 400.9-303(d) and 400.9-311(d) are interrelated and concern the issue of how perfection of a security interest in a vehicle is obtained in Missouri. Therefore, these statutes are considered in "pari materia.” Id. "The rule of construction in such instances proceeds upon the supposition that the statutes in question are intended to be read consistently and harmoniously in their several parts and provisions.” Id. To read section 400.9-303(d) as Blue Ridge Bank urges would render it inconsistent with section 400.9-311(d). Rather, reading the two sections consistently yields the conclusion that section 400.9-303(d) relates to perfection of a security interest by filing a notice of lien when the vehicle is not held as inventory. Section 400.9-311(d) is applicable in circumstances when the vehicle is held as inventory.


author: JOSEPH M. ELLIS, Judge.

text:
    Paul Otto RENAUT, Appellant, v. Paula S. (Renaut) KULLMAN, Respondent.
    No. WD 63557.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.

      Dana L. Parks, Kansas City, MO, for appellant.
    David J. Siscel, Kirkwood, MO, for respondent.
    Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.
   JOSEPH M. ELLIS, Judge.

On December 8, 1992, the Circuit Court of Jackson County entered a decree dissolving the marriage of Paul O. Renaut (“Father”) and Paula S. (Renaut) Kullman (“Mother”). Three children were born of the marriage: Heather G. Renaut (“Heather”), born December 23, 1980; Holly R. Renaut (“Holly”), born December 15, 1983; and Ryan P. Renaut (“Ryan”), born March 14, 1985. Father was ordered to pay Mother, the childrens’ sole physical custodian, $333.00 per month per child as child support, commencing January 1, 1993. The circuit court modified the decree on February 5, 2001, and again on November 5, 2003. Father appeals the November 5, 2003 judgment, arguing that it must be reversed since there was no substantial evidence to support it. We reverse in part, affirm in part, and remand for further proceedings.

This case was submitted to the trial court on the pleadings after the parties jointly filed written stipulations of fact. Mother and the two youngest children (Holly and Ryan) all reside together in Missouri and have done so continuously since the entry of the decree of dissolution in December 1992.. The oldest child, Heather, is emancipated. With the exception of a few weeks per year when they visit Father, who resides in Pennsylvania, Holly and Ryan have resided at all times with Mother, who has retained physical care, custody, and control of them. Mother filed her “Motion to Modify Child Support Order” in the Circuit Court of St. Louis County on September 4, 2002, but the action was subsequently removed to the Circuit Court of Jackson County. Father filed his response to Mother’s Motion on May 30, 2003.

Mother’s monthly gross income is $1,954.00. The only evidence of her monthly expenses and those of Holly and Ryan was presented to the trial court in a document titled “Statement of Income and Expenses of Paula Sue Kullman.” Father’s monthly gross income is $8,075.00. The only evidence of his monthly expenses was presented to the trial court in a document titled “Petitioner’s Income'and Expense Statement.” Mother and Father submitted a jointly-prepared Form 14 which showed that the presumed child support amount (“PCSA”) based on the above incomes and two children is $1,675.00 per month. Based on their relative earnings, Father’s proportionate share of the PCSA is 81% (or $1,357.00 per month), while Mother’s proportionate share is 19% (or $318.00 per month). Compared to the Form 14 relied on by the trial court in entering the immediately prior (February 5, 2001) child support order, the parties’ joint Form 14 showed a 20% or greater increase in the PCSA for Holly and Ryan. By agreement of the parties, their Form 14 did not take into account any post-secondary educational expenses for Holly or Ryan, which Mother and Father agreed to set forth separately.

In the Spring 2002 semester, Holly began her post-secondary education by enrolling at St. Louis Community College (“SLCC”). Holly’s expenses for this semester, which included only tuition and fees, were $387.00. Starting with the Fall 2002 semester, Holly began attending Central Missouri State University (“CMSU”) in Warrensburg. During the Fall 2002 and Spring 2003 semesters, Holly’s expenses, which included tuition and fees, books, and dormitory costs for room and board while residing in Warrensburg, were $9,199.00 ($4,370.00 for the Fall 2002 semester and $4,829.00 for the Spring 2003 semester). Holly then returned to SLCC for the Summer 2003 semester, during which her expenses were $198.00 in tuition and fees. Holly’s expenses for the Fall 2003 semester at CMSU were estimated to be $5,138.00.

Ryan began his first year at CMSU as a full-time student in the Fall 2003 semester. The expenses incurred by Ryan during that semester, which included tuition and fees, books, and dormitory costs for room and board while residing in Warrensburg, were estimated to amount to $5,304.00. Both Holly and Ryan are capable of satisfactorily performing their coursework at a college level.

On November 5, 2003, the trial court modified the February 5, 2001 judgment. In so doing, the court expressly found that since the date of the prior (February 5, 2001) child support order, which was entered when both Holly and Ryan were both still attending high school, “[tjhere has been a change of circumstances so substantial and continuing as to make the Court’s prior orders as to child support unreasonable!!]” The court further found that those “changed circumstances include but are not limited to the increased expenses [for Holly and Ryan] due to college tuition, books, fees, room and board; and a greater than 20% increase in the form 14 presumed child support amount[,]” as well as “a substantial increase in income” by Father.

The trial court’s November 5, 2003 judgment contained four major components. First, commencing on November 1, 2002, the court ordered that Father’s combined monthly child support payment for Holly and Ryan be reduced from the previous amount of $1,028.00 per month to $1,011.00 per month. Second, the court also ordered Father to pay Mother the sum of $5,943.75 “in the nature of support” as his equitable share of the $9,199.00 in post-secondary educational expenses incurred by Holly from November 1, 2002 through the end of May 2003. Third, in addition to these amounts, the court further ordered Father to “pay to Mother, or directly to the school, if feasible, 81% of the cost each year [thereafter] for each child attending a post-secondary college, university, or vocational/technical school, state or private,” subject to certain additional limitations and expense caps not at issue here. Finally, Mother and Father were both ordered to pay their own attorney’s fees. This appeal followed.

In determining an award of child support in any proceeding, § 452.340.8 and Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996), which was approved by the Missouri Supreme Court in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). In the first step, the trial court must determine and find for the record the PCSA in accordance with Form 14.In the second step, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate. Our review then of an award of child support is essentially one of the trial court’s application of the two-step Wool-ridge procedure, applying the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hence, in reviewing an award of child support, we review the award, in light of the trial court’s application of the Woolridge procedure, to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. After reviewing and determining that the trial court’s application of the Woolridge procedure passes the Murphy v. Carrón standard, we then review for an abuse of discretion with respect to the trial court’s rebuttal review of its PCSA calculation.

Conrad v. Conrad, 76 S.W.3d 305, 308-09 (Mo.App. W.D.2002) (internal citations omitted).

In his first point, Father argues that the trial court erred in awarding Mother $1,011.00 per month in combined basic child support for Holly and Ryan because when a custodial parent presents evidence that the children’s monthly support costs are lower than the PCSA as calculated under Form 14, the trial court must cite specific factors supporting the award based on the higher amount or it is an abuse of discretion. He further claims that since the monthly expenses listed by Mother for the two children on her income and expense statement, which was the only evidence before the trial court as to those expenses, were substantially less than the PCSA as determined in the parties’ Form 14 and the trial court did not make a finding that it considered all relevant factors as required by Rule 88.01 in making the higher award, the award must be reversed.

“When a party presents evidence controverting a presumed fact, the fact must then be determined from the evidence as if no presumption had ever been in effect.” Costello v. Miranda, 137 S.W.3d 498, 500-01 (Mo.App. E.D.2004). Accordingly, when a custodial parent gives evidence as to the actual financial needs of the children under that parent’s care, the PCSA as determined under Form 14 is considered to have been rebutted. Honderick v. Honderick, 984 S.W.2d 205, 211 (Mo.App. W.D.1999). Thus, when the custodial parent presents evidence that the demonstrable needs of the child are, in fact, less than the PCSA as established by Form 14, the actual amount of child support awarded to the custodial parent may be rebutted downward. Peery v. Peery, 933 S.W.2d 912, 916 (Mo.App. W.D.1996).

While a custodial parent’s presentation of evidence of need in an amount less than the PCSA under Form 14 will rebut the Form 14 presumption of correctness, it does not mandate that the lower figure be applied to compute the amount of the award, because “[i]t is within the trial court’s discretion to award a just amount based on all the considerations of Rule 88.01.” Costello, 137 S.W.3d at 501; see also Honderick, 984 S.W.2d at 212; Foraker v. Foraker, 133 S.W.3d 84, 97 (Mo.App. W.D.2004). In other words, even if the custodial parent’s evidence is that the chil-drens’ financial need is lower than the parents’ combined child support costs established by Form 14, and even if such evidence is accepted and found to be credible by the trial court, the award need not necessarily be based on the lower amount established by that evidence. “However, if the award is based on the higher, rather than the lower, amount, the trial court must cite to the factors supporting the higher amount[.]” Costello, 137 S.W.3d at 501. “[T]he trial court’s failure to do so is an abuse of discretion!,]” id., because “[t]he amount of support awarded must be limited to the demonstrable financial need to support the child of the party receiving the support.” Honderick, 984 S.W.2d at 211; Buder v. Buder, 824 S.W.2d 483, 485 (Mo.App. E.D.1992). Thus, “[ajlthough it is certainly within the trial court’s discretion to award the higher amount if it determines that amount to be just, the trial court must explain its decision to do so, citing to the specific factors supporting the award.” Costello, 137 S.W.3d at 501.

In the case sub judice, the record shows that the custodial parent (Mother) presented evidence, in the form of her income and expense statement, of the actual monthly expenses she incurred for the support of Holly and Ryan. As correctly noted by Father, this statement, which was filed in September 2002, indicated that Mother expended a total of only $334.00 per month to support Holly and Ryan, and that was attributed to their health insurance premiums. Meanwhile, as to all other expenses related to Holly and Ryan, Mother inexplicably assigned a monthly total of “$0.00” in each of the following categories: food, clothing, medical care, dental care, prescription drugs, recreation, laundry and cleaning, and personal care. Nor did Mother’s expense statement specify what portion, if any, of her monthly mortgage, utility, or automobile expenses were attributable to the support of Holly and Ryan during the year, including the summer months when they return from CMSU to live with her in her St. Louis County home.

Of course, when determining a child’s support needs, the trial court is not restricted to considering only the custodial parent’s income and expense statement, but should consider all relevant evidence presented at trial. Id. (citing Elliott v. Elliott, 920 S.W.2d 570, 580 (Mo.App. W.D.1996)). The only other relevant evidence presented to the trial court on the issue of the childrens’ support needs was Father’s June 2003 income and expense statement, which indicates that he incurs $167.00 per month in non-college related “Other Expenses” for the children. As such, the evidence presented at trial showed that the actual monthly expenses for Holly and Ryan were, at most, $501.00 — which is nowhere near the $1,248.00 in Form-14 based presumed monthly support expenses the trial court used to determine Father’s monthly support obligation.

As noted supra, while the trial court was not required to use the lower ($501.00) figure in computing the amount of the award, before using the higher ($1,248.00) figure, it did have to cite “specific factors supporting an award of child support based on the calculated combined child support costs of the parents which were greater than the actual expenses” for Holly and Ryan, as indicated by the evidence before it. Honderick, 984 S.W.2d at 212; see also Foraker, 133 S.W.3d at 97. As the trial court used the higher figure to compute its award of $1,011.00 per month in basic child support for Holly and Ryan but cited no such factors, it abused its discretion. Accordingly, we must reverse this portion of the judgment and remand to the trial court for a proper determination of Father’s reasonable child .support obligation for the two children, based on their demonstrable monthly financial need and all other relevant factors required by Rule 88.01. Id. Point granted.

In his second (and final) point, Father argues that the trial court’s award of $5,943.75 to Mother was erroneous because the evidence is insufficient to sustain it on appeal in that “there was no evidence to support the additional award of support” and Mother presented no evidence “that the college expenses are in addition to the children’s other expenses or that these Could not be covered with the amount of [child] support” Mother was awarded.

Father’s argument, which he fails to support with any applicable Missouri case law, is without merit. Mother had no obligation to prove that Holly’s college expenses were not “covered” by the amount Father was ordered to pay Mother in Form 14 basic child support payments, because Father, as the party challenging a judgment modifying a decree of dissolution as to child support, bears the burden of demonstrating error on the part of the trial court. Bell v. Gilliam, 852 S.W.2d 198, 200-01 (Mo.App. S.D.1993). Furthermore, such college expenses (1) “ ‘are not included in the schedule of basic child support obligations’ ” under Form 14, Ricklefs v. Ricklefs, 39 S.W.3d 865, 877 (Mo.App. W.D.2001) (emphasis in original); and (2) may, at the trial court’s discretion, be separately stated and awarded in lieu of including them in the Form 14 calculation or rebutting the Form 14 PCSA, id. at 878, which is precisely what happened here. Indeed, in Foraker, this court recently rejected an argument almost identical to the one now made by Father and reiterated, on the basis of our decision in Ricklefs, that a trial court may “order the parent to pay both the presumed child support amount and [a] portion of the extraordinary [post-secondary educational] expenses if the trial court determines, in its discretion, that such an award is appropriate based upon all relevant factors, including the financial needs and resources of the parents and the children,” Foraker, 133 S.W.3d at 98, subject only to the proviso that “[t]he child support award in such situations must not include a redundancy in the children’s living expenses already, and must otherwise be just and reasonable.” Id. (citing Gordon v. Gordon, 924 S.W.2d 529, 536 (Mo.App. W.D.1996)). As Father points to nothing in the record indicating that the trial court did not consider all of the factors relevant to its retroactive award of $5,943.75 to Mother representing his equitable share of the $9,199.00 in post-secondary educational expenses incurred by Holly, including the redundancy or “overlap” issue he attempts to raise, Father’s second point is denied.

The award to Mother of $1,011.00 per month in basic child support for Holly and Ryan is reversed and remanded to the trial court for a proper determination of Father’s just and reasonable child support obligation for the two children, based on their demonstrable monthly financial needs and all other relevant factors required by Rule 88.01. In making this determination, the trial court is also directed to ensure that the basic child support award it makes on remand does not include a redundancy in any item of expense which has already been taken into account in its prior awards for post-secondary educational expenses. In all other respects, the judgment of the trial court is affirmed.

All concur.

      . Holly applied for and received an unsubsidized federal student loan for the 2002-2003 school year at CMSU in the amount of $2,587.00. The proceeds of that loan were paid to CMSU to defray Holly’s educational expenses.

      . The record shows that from the time of the prior child support order in February 2001 until the time of this matter was submitted to the trial court for decision in August 2003, Father’s monthly gross income went from $6,750.00 to $8,075.00 — an increase of nearly 20%.

      .The record shows that the trial court arrived at this figure by accepting the parties’ jointly-prepared Form 14 and then rebutting the PCSA shown therein ($1,675.00 per month) downward by the sum of $427.00 per month to reflect the fact that food and housing for Holly and Ryan would be provided by CMSU during roughly 8 of every 12 months in the calendar year. This left $1,248.00 in non-variable monthly expenses, Father's 81% proportionate share of which is $1,011 per month.

      . On remand, the trial court may, in the exercise of its discretion, permit the parties to present further evidence on this issue.


author: PER CURIAM.

text:
    Carol D. TODD, Appellant, v. HALDEX BRAKE PRODUCTS CORP., Defendant, Division of Employment Security, Respondent.
    No. WD 63574.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    James M. Roberts, Blue Springs, MO, for Appellant.
    Lary Raymond Ruhmann, St. Louis, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ULRICH and SPINDEN, JJ.
   Order

PER CURIAM.

Carol D. Todd appeals from the decision of the Labor and Industrial Relations Commission (Commission) affirming the Appeals Tribunal’s decision that she was disqualified, under § 288.050.1(1), from receiving immediate unemployment compensation benefits because she voluntarily left her employment with the respondent, Haldex Brake Products Corporation (Hal-dex), without good cause attributable to her employment or employer.

The appellant raises two points on appeal. In Point I, she claims that the Commission erred in affirming the Appeals Tribunal’s decision denying her immediate unemployment benefits, based upon its finding that she voluntarily left her employment with Haldex without good cause, because the finding was not supported by competent and substantial evidence in that she did not voluntarily leave her employment, but was terminated by Haldex. In Point II, she claims that the Commission erred in affirming the Appeals Tribunal’s decision denying her immediate unemployment benefits, based upon its finding that she voluntarily left her employment with Haldex without good cause, because the finding was against the weight of the evidence in that she left her employment due to an illness which was attributable to her work environment.

We affirm. Pursuant to Rule 84.16(b).

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