author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Stephen P. BASINGER, Respondent.
    No. 2000-SC-0188-KB.
    Supreme Court of Kentucky.
    May 18, 2000.

      Bruce K. Davis, Executive Director, Reid Allen Glass, Kentucky Bar Association, Frankfort, for Complainant.
    Stephen P. Basinger, Ft. Thomas, for Respondent.
   OPINION AND ORDER

The Kentucky Bar Association charged Respondent, Stephen Basinger, with three violations of the Kentucky Rules of Professional Conduct: SCR 3.130-1.3, failure to act with reasonable diligence and promptness in representing a client; SCR 3.130-1.4(a), failure to keep his client reasonably informed about the status of his representation; and SCR 3.130-1.5(a), accepting a fee from a client and thereafter failing to render legal services justifying the fee.

A hearing was held before a Trial Commissioner in October of 1999. His findings of fact revealed the following: in April of 1996, Respondent agreed to represent Joyce Linville, the complaining witness herein, in a real property dispute against a Timothy Wesley. According to Linville, she engaged Respondent to “get the release of the land contract [to Wesley] off of the deed.” No formal agreement regarding the fees for Respondent’s legal service was reached until approximately five months after he began representing Lin-ville.

The Trial Commissioner found Respondent made reasonable and diligent attempts to accomplish the stated purpose of the representation from April of 1996 until late 1996 or early 1997. These efforts included sending a demand letter and a quitclaim deed to Wesley, performing several records checks in several counties regarding the property at issue, and telephoning and visiting Wesley’s place of employment. During this time period, Respondent discussed the matter with Linville in three or four phone calls and one personal visit. However, from early 1997 until May of 1998, Respondent did not pursue Linville’s legal matter further, nor did he communicate with her about the matter, except to send an occasional billing invoice for fees charged.

In May of 1998, Linville asked Respondent to refund the fees she had paid to him. At this time, Respondent agreed to file a foreclosure action against Wesley by August 15, 1998. He further agreed to refund the fees to Linville if no action was filed by that date. Following this conversation of May of 1998, Respondent had no further communications with Linville, and he failed to file the foreclosure action as promised. He did not return the legal fees to Linville as promised.

Respondent explains his failure to file the foreclosure action in August of 1998 and his failure to further communicate with Linville as a result of an automobile accident which occurred in late July of 1998 during which he was injured. Following this accident, Respondent’s law office was closed for an extended period due to his injuries and subsequent complications. He did not have in place internal office procedures or policies for the supervision and handling of client matters in the event of a protracted absence, disability, or cessation of legal practice.

The Trial Commissioner found that, despite Respondent’s unfortunate accident, he could have proceeded with a foreclosure action at any time after early 1997 when his initial efforts to locate Wesley had failed. Therefore, based upon the foregoing findings of fact, the Trial Commissioner found Respondent guilty of violating SCR 3.130-1.3 for failing to undertake any effort to satisfy the objectives of his representation of Linville after early 1997, and SCR 3.130-1.4(a) for failing to keep Lin-ville reasonably informed about the status of her case. The Commissioner found Respondent did not violate SCR 3.130-1.5, as charged, because he provided sufficient services to justify the fees he charged Linville.

Given that Respondent had no prior disciplinary history, the Commissioner recommended Respondent be disciplined by a public reprimand. Respondent did not appeal the Commissioner’s findings. Therefore, the Board of Governors did not sit on this matter, and the case was passed directly to this Court. We note that there was no finding that Linville suffered any irreparable harm from Respondent’s actions. Therefore, we accept the Trial Commissioner’s recommendation. Accordingly, it is hereby ORDERED that:

1. Respondent, Stephen P. Basinger, is hereby publicly reprimanded for his professional misconduct,.

2. In accordance with SCR 3.450(1), Respondent is directed to pay the costs of this action in the amount of $1,256.49 for which execution may issue from this Court upon finality of this Order.

ENTERED: May 18, 2000.

/s/ Joseph E. Lambert

Chief Justice

All concur.


source: Caselaw Access Project

author: /s/ Joseph E. Lambert Chief Justice ¡

license: Public Domain

text:
    John F. RAMPULLA, III, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2000-SC-0487-KB.
    Supreme Court of Kentucky.
    June 9, 2000.
   OPINION AND ORDER

John F. Rampulla, III, moves this Court to terminate disciplinary proceedings against him by entering an order suspending him from the practice of law for sixty (60) days for violating SCR 8.130(1.3), 3.130(1.4) and 3.130(1.16). The Kentucky Bar Association has no objection to this motion. We grant the motion.

KBA file # 6888 and KBA file # 7027

On or about October 1,1997 and December 9, 1997, Rampulla was engaged to represent clients in immigration matters. Apparently, Rampulla was attempting to establish an immigration practice during this time. For whatever reasons, Rampul-la was struggling with the immigration practice. As a result of his difficulties, Rampulla failed to represent his clients in a diligent manner in violation of SCR 3.130(1.3). Further, he failed to keep the clients reasonably informed about the status of the matters, and failed to explain the matters to the clients to an extent reasonably necessary for the clients to make informed decisions regarding Rampulla’s handling of the cases. These failures violated SCR 3.130(1.4), as alleged in the charges.

KBA file # 7108

In January 1998, a client engaged Ram-pulla to prepare and file a bankruptcy petition. Rampulla was paid a fee of $750 for this service. The client died twelve (12) days later. Rampulla had not yet filed any papers on the client’s behalf. Shortly thereafter, Rampulla met with the administrator of the client’s estate and acknowledged that the estate was entitled to a refund for the unearned portion of the fee. Unfortunately, Rampulla failed to return the fee in a timely manner. The administrator of the estate filed suit in small claims court and obtained a default judgment against Rampulla. In response to the judgment against him, Rampulla finally reimbursed the estate in December 1998. These acts violated SCR 3.130(1.16) as alleged in this charge.

Upon the foregoing facts and charges, and upon Rampulla’s motion to terminate these proceedings, it is ordered that:

1) The Movant, John F. Rampulla, III, is hereby suspended from the practice of law in Kentucky for a period of sixty (60) days. The period of suspension shall commence on the date of entry of this Opinion and Order and continue until such time as Movant is reinstated pursuant to SCR 3.510(2).

2) In accordance with SCR 3.450, Mov-ant is directed to pay all costs associated with this disciplinary proceeding against him, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

Entered: June 9, 2000.

/s/ Joseph E. Lambert

Chief Justice ¡

KELLER, J., not sitting.


author: KNOPF, Judge:

text:
    Paul DEATON and John Barton, Appellants, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellee.
    No. 1998-CA-003137-MR.
    Court of Appeals of Kentucky.
    April 21, 2000.

      John L. Barton for Garlis L. Pruitt Cat-lettsburg, Kentucky, for Appellants.
    Benjamin Lee Kessinger, III, Andrew R. Jacobs, Stites & Harbison Lexington, Kentucky, for Appellee.
    BEFORE: GUIDUGLI; JOHNSON, and KNOPF, Judges.
   OPINION

KNOPF, Judge:

Attorneys Paul Deaton and John Barton appeal from the November 4, 1998, summary dismissal of their restitution claim against appellee Connecticut General Life Insurance Company. They maintain that Connecticut General has been unjustly enriched by their efforts on behalf of Grover Murphy, a beneficiary under a Connecticut General disability policy, whom the appellants helped to obtain social security disability benefits, and whose claim ■ against Connecticut General was thereby reduced. Believing its jurisdiction over this matter to have been pre-empted by the federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq., the trial court dismissed the attorneys’ claim. Deaton and Barton insist that their cause of action, which asserts only state-law-based rights, is not pre-empted by ERISA. For the reasons discussed below, we disagree; and affirm the trial court’s judgment.

Grover Murphy suffered a disabling work-place injury in 1980. A few months thereafter, Connecticut General, pursuant to an employee benefit plan purchased by Murphy’s employer, began paying him disability benefits. The disability policy includes the following co-ordination of benefits provisions:

The amount of monthly income otherwise payable for any monthly period will be reduced by the amount of all Other Income Benefits (as defined in the section entitled “Definitions”) payable for the same monthly period.
Other Income Benefits include (1) any periodic cash payments provided on account of the Employee’s disability: ... by the Federal Social Security Act.
For the purposes of items (1) and (2) above, each Employee who is covered under the Federal Social Security Act will be considered to be receiving periodic cash payments under such Act, in ■ an amount equal to the amount he and his dependents would receive were they receiving such payments, unless the Employee submits proof to the Insurance Company [Connecticut General] that such payments have been applied for but are not payable.

At Connecticut General’s insistence, Murphy duly applied for Social Security Disability Income (SSDI) benefits. In fact, before the end of 1981, Murphy had applied twice for SSDI and had twice been denied. In 1989, apparently, Connecticut General again urged Murphy to apply for SSDI, and this time, when his claim was initially denied, Connecticut General demanded upon threat of reducing his benefits that he pursue an. administrative appeal. At that point Murphy hired appellant Deaton to assist him. Deaton presented Murphy’s claim to the administrative law judge, but again the claim failed. Deaton and Murphy thereupon hired appellant Barton to challenge the administrative decision in federal court. That court reversed the decision and remanded the claim to the ALJ for reconsideration. At last, sometime during the summer of 1993, Murphy was awarded SSDI benefits effective as of December 21, 1982.

Murphy’s Social Security benefits having thus come into effect, Connecticut General adjusted its payments to Murphy according to the policy’s co-ordination of benefits provisions and demanded that Murphy repay the benefits he had received between December 21, 1982, and the commencement of his SSDI award. When Murphy refused to repay those benefits, Connecticut General brought suit in state court. Murphy counterclaimed for an award of attorney fees on equitable grounds. This was in March and April 1996. In July 1997, Deaton and Barton tendered intervening complaints. They demanded restitution from Connecticut General on the ground of quantum meruit for the legal services they had provided directly to Murphy and indirectly, they claimed, to Connecticut General. On August 22, 1997, the trial court entered an order in favor of Connecticut General on its claim for repayment of Murphy’s benefits plus interest. Resolution of Murphy’s counterclaim and Deaton’s and Barton’s intervening complaints, however, were postponed until November 1998, apparently as a result of Murphy’s recourse to bankruptcy. The bankruptcy court determined that the attorney-fee disputes would not bear materially on Murphy’s bankruptcy and remanded them to Martin Circuit Court. Thereupon, the circuit court entered the summary judgment from which Deaton and Barton have appealed.

At the outset, we may clear the water slightly by noting that Murphy is not a party to this appeal; his counter-claim for fees has been abandoned. Before us are Deaton’s and Barton’s complaints only. Although the trial court did not distinguish between Murphy’s claim and those of Dea-ton and Barton, there is a distinction, as we shall try to show below. It is also well to note here that the bankruptcy court’s ruling, as we read it, is not dispositive of any of the fee-related issues now before us. That court merely determined that the resolution of Murphy’s bankruptcy did not require their disposition.

Because this is an appeal from a summary judgment, which by definition involved no finding of disputed fact, this Court’s review is de novo. CR 56. As did the trial court, we ask whether material facts are in. dispute and whether the party moving for judgment is clearly entitled thereto as a matter of law. Under this state’s rules of practice, summary judgments are to be granted cautiously; they are appropriate only when it appears impossible for the non-movant to prove facts establishing a right to relief or release, as the case may be. Steelvest, Inc. v. Scan steel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

On its face, Deaton and Barton’s claim is one for restitution under the common law of this Commonwealth. They allege having enriched Connecticut General by their efforts under circumstances in which Connecticut General should have anticipated liability. See Corbin’s Executors v. Corbin, 302 Ky. 208, 194 S.W.2d 65 (1946) (discussing the elements of a quantum meruit claim). Deaton and Barton do not dispute that the insurance policy under which Connecticut General provided disability benefits to Murphy was part of an ERISA-governed employee benefit plan. Nor do they dispute that ERISA preempts state laws bearing directly on such plans. They maintain, however, that their relationship to Connecticut General was sufficiently removed from the plan to make ERISA inapplicable. The trial court disagreed. Relying on Commonwealth Health Corporation v. Croslin, Ky., 920 S.W.2d 46 (1996), the trial court determined that jurisdiction over this matter was vested solely in federal court. We shall begin our discussion, therefore, with Croslin.

In that case, Croslin, the appellee, had been a victim in an automobile accident and had recovered health insurance benefits under her employer’s ERISA-gov-erned welfare plan. Both Croslin and the plan sought recovery against the tortfea-sor-Croslin for damages and the plan for subrogation. Prior to trial, the plan settled its claim; whereupon, Croslin brought suit against the plan for attorney fees, on the ground that the plan had benefitted in its settlement negotiations from the work of Croslin’s attorneys and so should contribute to their fee. On its own motion, our. Supreme Court ordered the claim dismissed. It noted that ERISA contains two sections related to pre-emption and ruled that under one of them, 29 U.S.C. § 1132 — ERISA’s civil enforcement section — jurisdiction over disputes between a plan and its beneficiaries has been delegated to federal court. Connecticut General maintains, and the trial court held, that the same rationale applies here: Deaton and Barton’s claim for fees is indistinguishable from Murphy’s, and Murphy’s claim for fees is barred by ERISA. We are persuaded, however, that Deaton and Barton’s claim for fees is not identical with Murphy’s.

We agree with the trial court that Murphy’s counter-claim for fees was barred by 29 U.S.C. § 1132. That section provides a cause of action and limited remedies for those persons and institutions bound by the plan (for example, employer participants, plan fiduciaries, and employee beneficiaries) for injuries arising directly from the plan or its administration. As our Supreme Court observed in Croslin, this section has been held to pre-empt completely any overlapping state cause of action. Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Murphy’s claim for fees, as was Croslin’s, is clearly within this field reserved for federal jurisdiction. Deaton and Barton, however, are not bound by the plan, and they assert their claim, not through Murphy pursuant to a fee-shifting rule or otherwise, but directly in their own right under the doctrine of quantum meruit. Their claim is thus unlike the claim at issue in Croslin and is outside the field of complete federal preemption created by § 1132.

This does not mean, however,.that Deaton and Barton’s claim may go forward. As our Supreme Court observed in Croslin, ERISA contains two pre-emption provisions. In addition to § 1132, 29 U.S.C. § 1144 provides that, with exceptions not pertinent here, ERISA “supersedes any and all State laws insofar as they may now or hereafter relate to any [covered] employee benefit plan.” Because it is conceded that Connecticut General’s disability insurance policy is part of a covered employee benefit plan, Deaton and Barton’s claim is pre-empted by § 1144 if the state law upon which they base it “relates to” the plan.

Not surprisingly, construction of the phrase “relates to” has proved difficult. In its early ERISA cases, the Supreme Court, attempting to accord the phrase its “plain” meaning, found that Congress intended ERISA pre-emption to be expansive, reaching state laws, including common-law causes of action, that bear upon ERISA plans “even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474, 484 (1990) (finding Texas wrongful discharge claim pre-empted); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). More recently, however, the Court has confronted the fact that

[i]f “relate to” were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for “[r]eally, universally, relations stop nowhere.”

New York Conference of Blue Cross v. Travelers Insurance Company, 514 U.S. 645, 655, 115 S.Ct. 1671, 1677, 131 L.Ed.2d 695, 705 (1995) (quoting H. James, Roder-

ick Hudson xli (New York ed., World’s Classics 1980)).

Accordingly, the Supreme Court and the federal courts of appeals have re-examined ERISA’s pre-emption provisions in light of both the statute’s purposes and traditional pre-emption doctrine. Fairly typical of these recent attempts to articulate the meaning of § 1144’s “relate to” provision is that of the Ninth Circuit;

The Supreme Court recognized [In New York Conference of Blue Cross v. Travelers Insurance Company ] at least three areas in which ERISA was intended to preempt state law claims ...:
First, Congress intended ERISA to preempt state laws that “mandate[ ] employee benefit structures or their administration.”
Second, Congress intended to preempt state laws that bind employers or plan administrators to particular choices or preclude uniform administrative practice, thereby functioning as a regulation of an ERISA plan itself.
Third, in keeping with the purpose of ERISA’s preemption clause, Congress intended to preempt “state laws providing alternate enforcement mechanisms” for employees to obtain ERISA plan benefits.
The key to distinguishing between what ERISA preempts and what it does not lies, we believe, in recognizing that the statute comprehensively regulates certain relationships: for instance, the relationship between plan and plan member, between plan and employer, between employer and employee (to the extent an employee benefit plan is involved), and between plan and trustee.
But ERISA doesn’t purport to regulate those relationships where a plan operates just like any other commercial entity — for instance, the relationship between the plan and its own employees, or the plan and its insurers or creditors, or the plan and the landlords from whom it leases office space.
... [W]here state law claims fall outside the three areas of concern identified in Travelers, arise from state laws of general application, do not depend upon ERISA, and do not affect the relationships between the principal ERISA participants; the state law claims are not preempted.

Arizona State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 723-24 (9 th Cir.1997) (citations omitted).

It might at first appear that Deaton and Barton’s restitution claim passes this test. Quantum meruit is a legal doctrine of general application that is not dependent upon ERISA. Neither does that doctrine mandate or otherwise necessitate ERISA benefit structures or other plan features. Indeed, the appellants’ claim asserts a quasi-commercial relationship between themselves and Connecticut General such as might obtain between Connecticut General and its own employees or its own creditors. The last prong of the Ninth Circuit’s “relationship test,” however (the prong concerned with whether the state law affects the relationship between principal ERISA participants), persuades us that pre-emption is called for in this case. Were Deaton and Barton to prevail on their claim, they would alter, indirectly but significantly, the relationship between Connecticut General as insurer and its disability beneficiaries such as Murphy. Put bluntly, the fees Deaton and Barton seek would substantially burden the enforcement of co-ordination of benefits clauses. Because the relationship between insured and insurer is an integral part of all ERISA disability compensation programs and because co-ordination of benefits provisions are prominent in many if not most of them, we believe that the appellants’ claim raises more than an issue of state law. Consequently, ERISA requires Dea-ton and Barton to address their claim to federal court. For these reasons, we affirm the Martin Circuit Court’s November 4,1998, summary judgment.

ALL CONCUR.

        . Because Deaton's and Barton’s claims are virtually identical, we shall, for convenience, refer to them in the singular.

      . Deaton and Barton make this point and rely on Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), for the proposition that outside § 1132 state and federal jurisdiction is concurrent. As discussed in the body of our opinion below, we believe that this is an inaccurate statement of the law. For a good discussion of Franchise Tax Board and its relationship to the issues of this case see Rice v. Panchal, 65 F.3d 637 (7 th Cir. 1995).

      . See De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997); California Division of Labor Standards Enforcement v. Dillingham Construction, 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997); Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988); Rice v. Panchal, 65 F.3d 637 (7 th Cir.1995); Warner v. Ford Motor Company, 46 F.3d 531 (6 th Cir.1995).

      . See also Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 (7 th Cir.1996); Coyne & Delany Co. v. Selman, 98 F.3d 1457 (4 th Cir.1996); Hinterlong v. Baldwin, 308 Ill.App.3d 441, 241 lll.Dec. 860, 720 N.E.2d 315 (1999); In re Estate ofEgelhoff, 139 Wash.2d 557, 989 P.2d 80 (1999).


author: PER CURIAM.

text:
    Antonio BELL, Defendant/Appellant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 76433.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.
    Susan L. Hogan, Appellate Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Troy Allen, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Defendant, Antonio Bell, was convicted of attempted forcible rape, Section 564.011, RSMo 1994, kidnapping, Section 565.110, RSMo 1994, and armed criminal action, Section 571.015 RSMo 1994, and was sentenced to three fifteen-year terms to be served concurrently. Defendant appeals the denial without an evidentiary hearing of his Rule 29.15 motion for postconviction relief.

We have reviewed the briefs of the parties and the record on appeal. No error of law appears. An opinion reciting the detailed facts of this case and restating the applicable principles of law would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James HOWARD, Appellant.
    No. ED 75069.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 25, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2000.
    Application for Transfer Denied June 27, 2000.
    David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

James Howard (Appellant) appeals his conviction by jury in the Circuit Court of the City of St. Louis of murder in the first degree, § 565.020 RSMo (1994) , two counts of robbery in the first degree, § 569.020, two counts of burglary in the first degree, § 569.160, assault in the first degree, § 565.050, two counts of forcible sodomy, § 566.060, and four counts of armed criminal action, § 571.015. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s ruling was not an abuse of discretion. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Rule 30.25(b).

      . All further statutory references are to RSMo (1994), unless otherwise indicated.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE of Missouri, ex rel. Gregory WHITE, Relator, v. Honorable Samuel J. HAIS Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. ED 77895.
    Missouri Court of Appeals, Eastern District, Division One.
    May 10, 2000.
    John D. Schneider, St. Louis, for appellant:
    Aaron Dubin, St. Louis, for respondent. Cynthia Garnholz, St. Louis, for petitioner in the trial court.
   LAWRENCE E. MOONEY, Presiding Judge.

Relator, Gregory White, seeks to prohibit Respondent, the Honorable Samuel Hais, from denying an entry of appearance and motion for a legislative continuance filed by attorney and state legislator John Schneider (“Schneider”) in the underlying matter. Peremptory writ issued in part.

Relator is a party in a case pending in the St. Louis County family court styled Gregory White v. Tiffany James, Number 98-FC-004589, set for trial before Respondent on May 10, 2000. Attorney Cynthia Garnholz (“Garnholz”) represents Relator in that ease. On May 5, 2000, Relator hired Schneider to replace Garnholz as his attorney. That same day, Garnholz moved to withdraw from the case, and Schneider filed an entry of appearance and motion for legislative continuance. After hearing argument on Schneider’s entry of appearance and motion for legislative continuance on May 9, 2000, the court issued an order denying the entry of appearance. The court made no ruling with respect to the motion for legislative continuance. Relator then filed this Petition for Writ of Prohibition.

Clearly, Schneider was entitled to enter his appearance in the case. We are unaware of any authority requiring an attorney admitted to the bar of this state to seek leave of court prior to entering his appearance in a pending case, nor are we aware of authority that an attorney’s entry in a case is a matter within the trial court’s discretion. On the contrary, we have declared a trial court’s failure to permit a litigant’s attorney to enter his appearance in a case prejudicial error. Magerstadt v. La Forge, 303 S.W.2d 130, 134 (Mo.1957). It has been said that “if a [litigant] has the means to employ counsel he has the right to be represented by a lawyer of his own choosing. In fact, he has the right to employ as many lawyers to represent him as he sees fit.” State ex rel. Snip v. Thatch, 355 Mo. 75, 195 S.W.2d 106, 108 (1946) (internal citation omitted). “The right of a litigant to be represented by counsel of his own selection is a valuable one, the unwarranted denial of which is held to be a fundamental error.” Magerstadt, 303 S.W.2d at 133. Thus, the Relator’s Petition for Writ of Prohibition is granted insofar as it asks us to prohibit Judge Hais from denying Schneider’s entry of appearance in this case.

However, we deny Relator’s request to prohibit Judge Hais “from proceeding with trial on May 10, 2000, in light of the filed Motion for Legislative Continuance.” First, Judge Hais has not ruled on Relator’s motion for legislative continuance,.. Further, it would be within the trial court’s discretion to grant or deny the legislative continuance, based upon its determination of whether Schneider’s presence is necessary for a fair and proper trial, since Relator is still represented by Garnholz. Lardinois v. Lardinois, 827 S.W.2d 284, 285 (Mo.App. E.D.1992); Riley v. Riley, 823 S.W.2d 10, 11 (Mo.App. E.D.1991).

Peremptory Writ of Prohibition is issued in part. Respondent is directed to vacate the order of May 9, 2000, denying John Schneider’s entry of appearance. The Petition for Writ of Prohibition is denied with respect to Relator’s request to prohibit Respondent from proceeding with trial on May 10, 2000.

LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J., concur.

      . The court denied Garnholz’s request to withdraw from the case in a separate order not before us.

      . Neither Garnholz nor counsel for Respondent has filed any responsive pleading with this court.


author: MARY K. HOFF, Judge.

text:
    Kathleen COYNE, Petitioner/Respondent, v. Patrick COYNE, Respondent/Appellant.
    No. ED 76836.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 23, 2000.

      Patrick M. Coyne, St. Louis, pro se.
    Mary Ann Weems, Clayton, for respondent.
   MARY K. HOFF, Judge.

Patrick Coyne (Father) appeals from the judgment entered in the Motion to Modify filed by Kathleen Coyne (Mother) and Father’s Cross-Motion to Modify Prior Judgment of Dissolution. We dismiss the appeal for failure to comply with Rules 81.12 and 84.04.

Father appears in this appeal pro se. Even so, pro se appellants are held to the same procedural rules as attorneys and do not receive preferential treatment regarding compliance with appellate procedural rules. Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999).

Father has failed to file an appropriate record on appeal. Rule 81.12(a) requires an appellant to file a record on appeal which “shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented.... ” Father has not filed a transcript of the trial proceedings below. Father has filed only a legal file. Yet, it is missing many pertinent documents, most notably a copy of Mother’s motion to modify and attachments to the trial court’s judgment. We cannot properly review the judgment when the record is so defective. See, Snelling v. Southwestern Bell Telephone Co., 996 S.W.2d 601, 603 (Mo.App. E.D.1999). An appeal may be dismissed for failure to file an adequate record on appeal. Faith Baptist Church of Berkeley, Inc. v. Heffner, 956 S.W.2d 425, 426 (Mo.App. E.D.1997). Because Father has the burden of furnishing the necessary record to this Court for appellate review, and Father has failed to do so, we dismiss his appeal.

In addition, we note that Father’s initial brief filed in this Court is woefully inadequate for appellate review. Rule 84.04 sets forth the content requirements for appellate briefs. Father’s original brief contains no statement of facts at all, let alone a “fair and concise statement of the facts relevant to the questions presented .... ” Rule 84.04(c). The primary purpose of the statement of facts is to provide an immediate, accurate, complete and unbiased understanding of the facts of the case. Kent v. Charlie Chicken II, Inc., 972 S.W.2d 513, 515 (Mo.App. E.D.1998). In this case, there is no such statement of facts and Father fails to preserve his points for appellate review. Id.

In addition, Father’s points on appeal, as well as his argument, are insufficient. Rule 84.04(d) sets outs the specific requirements of each point relied on. Father does not present points relied on in the fashion required by Rule 84.04(d). None of the points specifically identify the challenged ruling of the trial court, state concisely the legal reasons for the claim, or explain why, in the context of the case, those legal reasons support the claim of reversible error. Rule 84.04(d)(1)(A) — (C). In some instances, Father includes his argument within the point relied on and in other cases, Father has no argument. As a result, Father has not preserved anything for review on appeal. Shochet, 987 S.W.2d at 519.

Finally, Father has failed to comply with Rule 84.04 in various minor ways. His brief contains no detailed table of contents. Rule 84.04(a)(1). Father does not list his authorities after his point relied on. Rule 84.04(d)(5). In making statements of fact arid argument, Father never includes one cite to the specific page references in the legal file or transcript to support his contention. Rule 84.04(j). The requirements of Rule 84.04 are mandatory. Maroney v. Maroney, 953 S.W.2d 644, 646 (Mo.App. S.D.1997).

After Respondent raised these deficiencies in her brief, Father filed a reply brief wherein he attempted to correct these problems. Father’s reply brief also raises new issues to be addressed by the Court, including a iequest to strike the order for attorneys’ fees. To the extent Father has failed to raise allegations of error in his initial brief with the Court, they are not preserved for appellate review. Appellate courts are generally precluded from addressing assertions made for the first time in a reply brief because a respondent has no opportunity to address the argument. Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995). Therefore, points and arguments omitted from an appellant’s initial brief may not be supplied by a reply brief. Moreover, even if we attempted to review Father’s points ex gratia, it would be impossible to do so in the absence of a record of the proceedings.

Based on the defective record on appeal, as well as the deficiencies in Father’s brief, we dismiss this appeal for failure to comply with Rules 81.12 and Rule 84.04.

Appeal dismissed.

MARY RHODES RUSSELL, C.J. and WILLIAM H. CRANDALL, Jr., J.: Concur.


text:
    Antonio DUNN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76120.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 23, 2000.

      Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

Movant, Antonio Dunn, appeals from the judgment denying an amended Rule 24.035 motion as untimely. We reverse and remand for further proceedings.

On February 3, 1992, Movant' pleaded guilty to three counts of sale of a controlled substance, section 195.211 RSMo. 1986. At that time, the state recommended seven years for each count and opposed probation. The prosecutor also said that the state was “taking no position as to whether these counts were to run concurrently] or .consecutively. The State’s recommendation is that Count I and II will run concurrently and then there is no position as to whether or not Count III will be concurrent or consecutive with Count I and II.” While discussing the possible sentences, the court acknowledged that defendant would be asking for a pre-sentence investigation and upon a favorable report would be seeking probation. The court deferred sentencing for preparation of the pre-sentence report. On October 6, 1992, the court suspended imposition of sentence and placed Movant on five years’ probation. On October 26, 1994, the court, after a hearing, revoked Movant’s probation and sentenced him to three consecutive terms of fifteen years.

Movant filed a timely. pro se motion pursuant to Rule 24.035 on November 21, 1994. The court appointed the public defender’s office to represent Movant on November 29, 1994. On December 13, 1994, a public defender entered her appearance for Movant. Counsel filed a motion for additional time to file an amended motion, citing State v. White, 798 S.W.2d 694 (Mo. banc 1990), because no transcript of the underlying criminal proceedings had been prepared. The motion court granted this motion, ordering any appointment of counsel was not effective until a complete transcript of the underlying proceedings was filed and then granting counsel an additional thirty days to file an amended motion. Shortly thereafter, on January 9, 1995, Movant filed a pro se amended Rule 24.035 motion.

Movant’s then counsel did not file an amended Rule 24.035 motion. Instead, what happened is outlined in a prior appeal in this case, State v. Dunn, 970 S.W.2d 891 (Mo.App. E.D.1998). Movant’s counsel learned the court reporter was unable to prepare a transcript of the October 6, 1992 proceeding where Movant received a suspended imposition of sentence because he had lost his notes. On June 5, 1995, counsel filed a Rule 29.07(d) motion asking Movant be permitted to withdraw his guilty plea because counsel was unable to file an amended Rule 24.035 motion without the October 6, 1992 transcript. Counsel had transcripts of Movant’s guilty plea and probation revocation hearing and sentencing. The court denied Movant’s Rule 29.07(d) motion. Dunn, 970 S.W.2d at 891. This court affirmed that denial and held that Movant’s claim should have been raised in a Rule 24.035 motion. Id. at 892. The mandate for this appeal was issued on August 10,1998.

On October 1, 1998, another attorney from the public defender’s office filed a “First Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing” (hereafter referred to as “second amended motion”). This attorney filed a request that the motion court consider the second amended motion as timely filed under Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), because the untimeliness was not Movant’s fault. In that motion, counsel outlined the facts of the case and explained that the second amended motion had not been filed before because of counsel’s actions on the Rule 29.07(d) motion. Counsel alleged, “Postconviction counsel had a duty to complete and file and (sic) amended motion within the time guidelines and the fact that [it] is filed late is solely and only the fault of undersigned counsel.” The court initially granted Movant’s request. But after the state filed a written objection, the court denied Movant’s request to accept the second amended motion as timely filed under Sanders and therefore did not address the merits of this motion. The court also denied Movant’s pro se motion and pro se amended motion without an evidentiary hearing, stating “In reviewing both motions, it is clear that the files and records in this case conclusively show that movant is entitled to no relief.” Movant appeals, raising two points.

We first address Movant’s second point. Movant contends the motion court clearly erred in finding his second amended motion untimely because under White, an amended motion was not due until all the transcripts had been filed. Because there exists no transcript of the October 6, 1992 proceeding where Movant received a suspended imposition of sentence, Movant argues an amended motion is not even due yet.

Movant’s case is governed by the 1994 version of Rule 24.035 because his sentence was pronounced before January 1, 1996. Rule 24.035(m) (1996). Under Rule 24.035(f) (1994), an amended motion was due “within thirty days of the date counsel is appointed.” The motion court could only extend the time for filing the amended motion “for one additional period not to exceed thirty days.” Rule 24.035(f) (1994). Here, counsel was appointed on November 29,1994, and granted one thirty day extension. Even with the extension, however, the amended motion was due January 28, 1995.

Movant contends that White grants a further extension. In that case, White filed a motion to vacate his conviction under Rule 29.15 (1994). White, 798 S.W.2d at 696. An amended motion was filed before the transcript of the jury trial was filed. Id, Seeking to harmonize Rule 29.15(b) with Rule 29.15(f), the court held the amended motion was not due until at least thirty days after the time both the trial transcript was filed and counsel was appointed. Id. Movant relies on this holding to contend his amended motion is not yet due. However, the holding in White is limited to Rule 29.15 and has no applicability to Rule 24.035, which has no provision similar to the one in Rule 29.15(b) addressed in White. See Phillips v. State, 902 S.W.2d 318, 320 (Mo.App. S.D.1995). Therefore, Movant’s second amended motion had to be filed within sixty days of the appointment of his counsel, unless some other exception applies. Movant’s second point is denied.

In his first point, Movant argues the motion court clearly erred in denying as untimely his second amended motion. The court found that Sanders did not apply because Movant was directly at fault for filing the pro se amended motion without notifying his attorney and he “failed to present any evidence of his lack of fault in this matter, apart from his present attorney’s assertions.” Movant contends that this motion should be considered as timely filed under Sanders, because he was not at fault for the late filing of the motion.

In Sanders and in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), the Missouri Supreme Court created two exceptions to the time requirements of Rule 29.15 based on abandonment of post-conviction counsel. Moore v. State, 934 S.W.2d 289, 290 (Mo. banc 1996)(applying Luleff and Sanders analysis for Rule 24.035 motions). In Sanders, the court held that abandonment occurs when the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails to file the amended motion in a timely manner. Sanders, 807 S.W.2d at 494-95. The court also held that relief should be ordered “only when a movant is free of responsibility for the failure to comply with the requirements of the rule.” Id. at 495. The court further held as follows:

At such time as counsel may seek leave to file pleadings out of time, the motion shall set forth facts, not conclusions, showing justification for untimeliness. Where insufficiently informed, the court is directed to make independent inquiry as to the cause of the untimely filing. The burden shall be on the movant to demonstrate that the untimeliness is not the result of the negligence or intentional conduct of the mov-ant, but is due to counsel’s failure to comply with Rule 29.15(f).- If the court determines that the untimeliness result- ■ ed from negligence ■ or intentional conduct of-movant, the court shall not permit the filing. Should the failure to file a timely amended motion result from inattention of counsel, the court shall permit the filing.

Id.

As previously discussed, Movant’s amended motion was due by January 28, 1995. Counsel did not file the second amended motion until October 1, 1998, and the Rule-29.07(d) motion was not filed until June 5, 1995. Movant did file a pro se amended motion on January 9, 1995. However, contrary to the motion court, we do not find that Movant’s filing of a pro se amended motion without notifying his counsel eliminated post-conviction counsel’s responsibilities under Rule 24.035(e) (1994).

In a case after Sanders and Luleff, the Missouri Supreme Court set forth the procedures for the Sanders-Luleff independent inquiry in the event of a late filing or non-filing of an amended motion. McDaris v. State, 843 S.W.2d 369, 371 n. 1 (Mo. banc 1992), overruled on other grounds, State v. Carson, 941 S.W.2d 518 (Mo. banc 1997); see Brown v. State, 968 S.W.2d 725, 727 (Mo.App. E.D.1998). The method of the court’s inquiry may be formal or informal, but “a sufficient record must be made to demonstrate on appeal that the motion court’s determination on the abandonment issue is not clearly erroneous.” McDaris, 843 S.W.2d at 371 n. 1. “The inquiry McDaris suggests is designed to determine where fault lies when an amended motion is filed out of time.” Moore, 934 S.W.2d at 291. Here, there is an insufficient record and the cause must be remanded for the court to proceed in accordance with McDaris. If the court determines that the untimeliness of the second amended motion resulted exclusively from counsel’s action or inaction, the court shall consider the second amended motion as timely filed and proceed according to Rule 24.035 (1994). See Sanders, 807 S.W.2d at 495.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

MARY K. HOFF, Judge and JAMES A. PUDLOWSKI, Senior Judge: Concur.

      . The court also ordered that the sentence be served concurrently with a sentence he was then serving for a different case.

      . Under Luleff, abandonment occurs "when post-conviction counsel lakes no action on movant’s behalf and, as a result, it appears on the face of the record that movant is deprived of a meaningful review of post-conviction claims.” Moore, 934 S.W.2d at 291.


author: HAROLD L. LOWENSTEIN, Presiding Judge.

text:
    Michael KOENIG, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57446.
    Missouri Court of Appeals, Western District.
    May 23, 2000.
    Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before: Presiding Judge LOWENSTEIN, Judge ULRICH and Judge HOLLIGER.
   HAROLD L. LOWENSTEIN, Presiding Judge.

Appellant, Michael Koenig, was convicted of three counts of felony stealing following a jury trial in the Circuit Court of Platte County. The convictions were based on a series of thefts from parked cars at Kansas City International Airport and surrounding hotel parking lots. Appellant’s convictions were affirmed by this court on appeal. Appellant filed this motion for postconviction relief pursuant to Rule 29.15. After an evidentiary hearing, Appellant’s motion was denied. This appeal followed.

Appellant’s points on appeal are that the motion court clearly erred in denying his motion for postconviction relief because trial counsel was ineffective for (1) failing to call a certain defense witness, (2) failing to voir dire a certain state witness, and (3) failing to impeach a certain state witness.

Appellant cites to no authority in support of these points outside of authority for the applicable standard of review. “It is an appellant’s obligation to cite appropriate and available precedent if [ ]he expects to prevail.” In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.App.1999) (citing Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978)). “Where, as here, the appellant neither cites relevant authority nor explains why such authority is not available, the appellate court is justified in considering the points abandoned and dismiss the appeal.” Id. (citing Shiyr v. Pinckney, 896 S.W.2d 69, 71 (Mo.App. 1995)). Accordingly, this court may deem Appellant’s points abandoned.

Regardless, this court has reviewed Appellant’s points ex gratia and finds that they have no merit. He did not show by a preponderance of the evidence either that counsel’s performance was deficient or that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Due to Appellant’s failure to cite to any relevant authority in support of his claim for postconviction relief, his appeal points are denied and this appeal is dismissed.

All concur.


text:
    Jeffrey S. McGILL, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 56753.
    Missouri Court of Appeals, Western District.
    Submitted Dec. 10, 1999.
    Decided May 23, 2000.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    Garry Lee Helm, Independence, for respondent.
    Before JAMES M. SMART, P.J.; JOSEPH M. ELLIS and EDWIN H. SMITH, JJ.
   PER CURIAM.

The Director of Revenue appeals the trial court’s ruling setting aside the revocation of Jeffrey McGill’s driving privilege after a trial de novo. The court found that the Director did not establish a prima facie case for revocation under § 302.505, RSMo Supp.1997. The court concluded that the Director had failed to prove that McGill had been driving within the .meaning of the statute.

The motion to dismiss the appeal filed by the Respondent on the ground that the appeal is moot because the appellant has acquiesced in the judgment is dispositive. Respondent cites as authority Lacy v. Director of Revenue, 9 S.W.3d 1 (Mo.App. 2000). The Director provides no analysis or criticism of Lacy, and elects not to contest the motion to dismiss.

Accordingly, the appeal of the Director of Revenue is hereby ordered dismissed.


author: PHILLIP R. GARRISON, Chief Judge.

text:
    In the Matter of A.B.M. and A.B.M., minors. E.M., Petitioner-Respondent, v. S.M., Respondent-Appellant, v. D.B., Respondent.
    No. 23049.
    Missouri Court of Appeals, Southern District, Division Two.
    May 30, 2000.

      Wendell L. Hoskins, II, Caruthersvifle, for appellant.
    Shawn D. Young, Portageville, for Guardian Ad Litem.
    Lynn N. Bock, New Madrid, for respondent.
   PHILLIP R. GARRISON, Chief Judge.

S.M. (“Mother”) appeals the judgment of the trial court terminating her parental rights with respect to her two minor children, A.B.M. and A.B.M. (collectively referred to - as “the children”). We affirm.

On May 14, 1996, E.M. (“Petitioner”), the paternal grandmother of the children, filed a petition to terminate the parental rights of Mother and a petition to adopt A.B.M., born August 29, 1989, and A.B.M, born July 29, 1991. In her petition to terminate Mother’s parental rights, Petitioner alleged that Mother’s parental rights should be terminated in accordance with the provisions of Sections 211.447 and 453.040. Specifically, Petitioner alleged:

That [Mother] ha[d] abandoned the [children] in that [Mother] intentionally murdered the biological father, which resulted in the disintegration of the family unit and left the [children] without even a modicum.of parental nurturing during her incarceration.. Further that [Mother] knew of the probable devastating effect of her actions on the [children] and of the inevitable lengthy separation from her as a consequence of her incarceration. Further, that the crime itself creates an irreparable emotional estrangement of the children from [Mother], Further, that her sentence will result in a physical separation during all the [children’s] formative years.

On November 18, 1998, the trial court held a hearing on the petition. At the hearing, evidence was introduced of Mother’s role in the murder of the children’s natural father, R.M., in May 1994, and of her subsequent conviction for second-degree murder and fifteen-year sentence.

At the hearing, Petitioner testified that initially, during Mother’s pending trial and subsequent incarceration, her custody of the children was made with the consent and at the direction of Mother. Petitioner further noted that at the time Petitioner obtained custody of the minor children there was no agreement that she would not attempt to terminate Mother’s parental rights or obtain permanent custody.

Petitioner also testified that she had not allowed in-person and telephone visitation between the children and Mother based upon the advice of the children’s counselor. Petitioner stated that she had allowed the children to foster a relationship with their maternal grandparents. Petitioner further testified that the Mother had provided no financial support for the children, but confirmed that the children received $778 each in monthly social security benefits.

At the hearing, Mother testified that she had enrolled in the PATCH program, Parents and Their Children, offered by the Missouri Department of Corrections, and regularly attended parenting classed designed to help inmates maintain their parent-child relationship while incarcerated. She stated her desire to visit her children, and testified that she had sent the children cards, birthday and Christmas presents, and had tried to call the children collect several times. Evidence was presented showing that the children did correspond with Mother by mail, playing tic-tac-toe and tracing their hands and feet to show their growth.

The trial court entered its Findings of Fact and Conclusions of Law on April 12, 1999, whereby it terminated Mother’s parental rights. The trial court entered its revised findings on May 10, 1999. In its revised findings, the trial court based the termination on three grounds: Section 211.447.4(1), abandonment; Section 211.447.4(2), neglect; and Section 211.447.4(3), the existence of trial court jurisdiction over the children for a period of one year coupled with findings that the “conditions which led to the [trial court’s] assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the children] can be returned to [Mother] in the near future,” and that “the continuation of the parent-child relationship greatly diminishes the child[ren]’s prospects for early integration into a stable and permanent home.” The trial court held that the best interests of the children would be served through the termination of Mother’s parental rights. It further found that Petitioner was a suitable adoptive parent.

In her three points on appeal, Mother challenges the sufficiency of the evidence supporting the trial court’s order regarding the following findings that: (1) Mother willfully abandoned the children; (2) Mother willfully neglected the children; and (3) it was in children’s best interests that Mother’s parental rights be terminated.

This court will affirm an order terminating parental rights unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Matter of MM., 973 S.W.2d 165, 168 (Mo.App. S.D. 1998). In reviewing the sufficiency of the evidence supporting an order, this court considers the evidence and all reasonable inferences in the light most favorable to the order. In Interest of M.N.M., 906 S.W.2d 876, 878 (Mo.App. S.D.1995). Further, due regard is given to the trial court’s opportunity to judge the credibility of witnesses. In Interest of M.H., 859 S.W.2d 888, 892 (Mo.App. S.D.1993). We will reverse the order only when we firmly believe it is wrong. Id. In any termination of parental rights, the primary concern must be the best interests of the child. M.N.M., 906 S.W.2d at 878.

Mother first contends that the trial court erred in terminating her parental rights pursuant to Section 211.447.4(l)(b) because the Petitioner failed to establish by clear, cogent and convincing evidence that Mother had willfully abandoned the children.

Abandonment has been defined by the courts as “the intentional withholding by a parent of his care, love, protection and presence without just cause or excuse.” In re R.K., 982 S.W.2d 803, 806 (Mo.App. W.D.1998). Abandonment' focuses on the parent’s intent, taking into consideration all evidence of the parent's conduct before and after the applicable statutory period. Z.H. v. G.H., 5 S.W.3d 567, 570 (Mo.App. W.D.1999).

In the instant case, the trial court found, in accordance with Section 211.447.4(l)(b), that Mother had willfully abandoned the children for more than six months, and had, without just cause or excuse, withheld from them her presence, care, protection, maintenance and the realistic opportunity for love and filial affection “when on or about May 19, 1994 she participated in the murder of their father, [R.M.], knowing that such a crime would separate her from the children leaving them without any provision for parental support and without making arrangements to visit or communicate with the children although able to do so.” The trial court further found that Mother “destroy[ed] the family unit, and with the knowledge that the crime itself would create an irreparable emotional estrangement of the children from her and the natural father.”

Mother contends that the trial court should have given greater weight in its findings under Section 211.447.4(l)(b) to the fact that she made some attempts to contact and maintain a relationship with the children, and argues that her incarceration alone does not constitute abandonment. In support of this contention, Mother cites the dissent in In Interest of A.R.M., 750 S.W.2d 86, 91-95 (Mo.App. E.D.1988).

It is true that each adoption must be judged on its own unique set of facts. See C.B.L. v. K.E.L., 937 S.W.2d 734, 737 (Mo.App. E.D.1996). Further, imprisonment of a parent does not per se constitute abandonment. See In re Adoption of K.L.G., 639 S.W.2d 619, 626 (Mo.App. S.D.1982). “On the other hand, a majority of the decisions hold that under appropriate circumstances imprisonment may constitute abandonment.” Id. See also H.W.S. v. C.T., 827 S.W.2d 237, 241 (Mo.App. E.D.1992); A.R.M., 750 S.W.2d at 89.

In A.R.M., the majority in reaching its decision to terminate father’s parental rights stated:

It is difficult to conceive of a more calamitous event for a child than the murder of her mother by her father. It is absurd for the perpetrator of such a vile act to argue that he should retain his parental rights concerning that child. We can presume that father knew of the probable devastating effect of his actions on A.R.M. and of the inevitable lengthy separation from her as a consequence of his incarceration. The crime itself creates an irreparable emotional estrangement of the child from the father. His lengthy sentence will result in a physical separation during all of A.R.M.’s formative years....
The father destroyed the bond of parent and child.. In doing so, he abandoned his child by intentionally, without just cause or excuse, withholding from his daughter his presence, care, protection, maintenance and the realistic opportunity for love and filial affection.

750 S.W.2d at 89-90.

The conduct of Mother here certainly rises to the level of a crime that can be categorized as a “calamitous event for a child.” Mother was convicted of second-degree murder for her role in the shooting death of the children’s natural father. As in AR.M., we can presume here that Mother knew of the probable devastating effect of her actions on the children and of the inevitable lengthy separation from them as a consequence of her incarceration. Through her role in the murder of . the children’s natural father, she has intentionally, without just cause or excuse, withheld from the children her care and protection.

There is evidence in the record indicating that, after the murder of the children’s natural father, Petitioner hindered contact between Mother and the children. Further, there is evidence in the record that Mother attempted to maintain contact with the children through telephone calls, letters, and the giving of small gifts. While a petitioner cannot create the grounds for a nonconsensual adoption, in this case it is understandable that the relationship between Petitioner and Mother may be less than cordial given that Mother was convicted of second-degree murder in the death of Petitioner’s son. Furthermore, it was Mother’s actions, not Petitioner’s, that resulted in her separation from the children and in the destruction of the family bond.

The trial court’s finding is supported by substantial evidence in the record. Clearly, there was no abuse of discretion. Mother’s first point is, therefore, denied.

We need not address Mother’s second point concerning the issue of willful neglect. A trial court may terminate parental rights when it finds that doing so is in the children’s best interest and when it appears by clear, cogent and convincing evidence that one or more statutory grounds for termination exist. § 211.447.4. The existence of even one statutory ground for termination is sufficient if termination is in the children’s best interests. In re S.L.J., 3 S.W.3d 902, 907 (Mo.App. S.D.1999); In Interest of E.B.S., 876 S.W.2d 8,10 (Mo.App. S.D.1994).

In Mother’s final point, she argues that the record does not support the trial court’s finding that it was in the children’s best interests to terminate Mother’s parental rights. We do not agree. The record reflects that Mother willfully abandoned the children through her participation in the murder of the children’s natural father, and that Petitioner is able to provide a positive home environment for the children. Under these facts, we are left with the clear conviction that the best interests of the children would be served by terminating Mother’s parental rights and allowing them to be adopted by Petitioner.

The judgment of the trial court is affirmed.

MONTGOMERY, P.J., and BARNEY, J., concur.

      . The petition was initially filed by Petitioner and her husband. Petitioner proceeded as the sole petitioner following her husband’s death in 1998.

      . All statutory references are to RSMo 1998, unless otherwise indicated.

      .R.M. died as a result of a gunshot wound to the head. The shooter implicated Mother in the planning and execution of the crime.

      . Judge Karohl in his dissent in A.R.M. argued that imprisonment, even for the taking of the life of a natural parent, should not be considered an absolute grounds for abandonment. Id. at 91.


author: BARNEY, Judge.

text:
    Danny C. SITTON, Appellant, v. STATE of Missouri, Respondent.
    No. 23245.
    Missouri Court of Appeals, Southern District, Division Two.
    May 30, 2000.

      Nancy A. McKerrow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Troy Allen, Asst. Atty. Gen., Jefferson City, for respondent.
   BARNEY, Judge.

Danny Sitton (“Movant”) appeals from a judgment of the Circuit Court of Dade County denying his 29.15 motion after an evidentiary hearing. He raises two points of motion court error. He first contends that the motion court erroneously denied his motion because his trial counsel in the underlying criminal case rendered ineffective assistance of counsel “when he failed to object to the prosecutor’s closing argument in which the prosecutor made an improper indirect reference to [Movant’s] failure to testify ....” In his second point, Movant claims motion court error in that Movant’s trial and appellate counsel in the underlying case rendered ineffective assistance of counsel in that they failed to properly present to either the trial or appellate court the State’s failure to timely disclose “the deal it made with Gordon Carey....”

In the underlying criminal case, Movant had been convicted of assault in the first degree and armed criminal action in connection with the shooting of Jimmy De-Rubba. See §§ 565.050 and 571.015, RSMo 1994. At trial, the evidence showed that Mr. DeRubba was shot in the side while sitting in his car. He was hospitalized for three days and sustained a permanent scar from just below his left breast to just below his belly button. After the shooting Movant asked Gordon Carey, a friend of twenty-two years, for help “to get rid of ... evidence.” Movant gave Carey the gun used in the shooting and Carey subsequently hid the weapon at a third location. Later, Carey turned over the gun to the police. Movant was sentenced to thirty years’ imprisonment on the assault charge and 10 years’ imprisonment on the armed criminal action charge, the sentences to run consecutively.

“We will not disturb a motion court’s judgment denying post-conviction relief unless we determine its findings and conclusions are clearly erroneous.” State v. Smith, 949 S.W.2d 901, 906 (Mo.App.1997). “Further, we will find the motion court’s determination clearly erroneous only if a review of the entire record leaves a definite and firm impression that a mistake has been made.” Id. Further still, “[mjovant ‘must demonstrate that there is a reasonable probability that, absent the alleged error, the jury would have had a reasonable doubt as to guilt.’ ” State v.. Sullivan, 935 S.W.2d 747, 761 (Mo.App.1996) (quoting Hamilton v. State, 770 S.W.2d 346, 348 (Mo.App.1989)).

“To prevail on a claim of ineffective assistance of counsel, [Defendant] 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, 944 S.W.2d 165,181 (Mo. banc 1997) (quoting Moore v. State, 827 S.W.2d 213, 215 (Mo. banc 1992)). Necessarily “[a] movant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim.” State v. Boyce, 913 S.W.2d 425, 429 (Mo.App.1996). “The motion court, and this court, may proceed directly to the issue of prejudice without first determining whether counsel’s conduct was deficient.” Id. “[I]f it is simpler to dispose of a claim of ineffective assistance of counsel on the ground of lack of sufficient prejudice, that course should be followed.” Sullivan, 935 S.W.2d at 761. “Prejudice exists where there is a reasonable probability that the outcome of the proceeding would have been different but for counsel’s ineffectiveness.” Smith, 949 S.W.2d at 906. “Absent a showing to the contrary, counsel is presumed to have provided effective assistance.” State v. Gorman, 940 S.W.2d 543, 547 (Mo.App.1997).

I.

In his first point, Movant contends he was denied ineffective assistance of counsel when his trial counsel failed to object to a statement by the prosecutor during closing argument. The statement complained of was, as follows:

And, you know, why would [Movant] give this gun away to someone, to Mr. Carey? Well, him and Mr. Carey had been friends for 22 years. You’ve heard Mr. Carey’s testimony. Nobody has contradicted that.

Movant complains that such a statement was an impermissible reference to his decision not to testify and constituted an indirect reference to Movant’s failure to testify-

“It is permissible ... for a prosecuting attorney to argue-the effect of evidence presented and the reasonable inferences drawn from the evidence.” State v. Redman, 916 S.W.2d 787, 792 (Mo. banc 1996). “A prosecutor may argue that evidence is uncontroverted or uncontradicted.” Id. “Merely stating that the evidence is ‘uncontradicted’ or that a defendant has failed to offer evidence is not a direct and certain reference [to Movant’s failure to testify].” State v. Gardner, 743 S.W.2d 472, 473 (Mo.App.1987). “An indirect reference is one reasonably apt to direct the jury’s attention to defendant’s failure to testify.” Lawhorn, 762 S.W.2d at 826. “Although a direct reference to the failure of the defendant to testify will generally require reversal of the conviction, an indirect reference is improper only if the prosecutor demonstrates a calculated intent to magnify the defendant’s decision not to testify so as to call it to the jury’s attention.” State v. Richardson, 923 S.W.2d 301, 314 (Mo. banc 1996); see also Redman, 916 S.W.2d at 793.

“When considering a defendant’s claim of an improper comment on his right to remain silent, the appellate court must also consider the comment in the context in which it appears.” State v. Neff, 978 S.W.2d 341, 345 (Mo. banc 1998). Reviewing the prosecutor’s comment in context, it is a reasonable interpretation of his remarks that he was commenting that nobody had contradicted the fact that Movant and Carey were friends, and had been friends for twenty-two years. Movant’s trial attorney had spent a large portion of his closing argument positing that there was no reason why Movant would give the gun to Carey and that Carey was lying to protect himself. During rebuttal, the prosecutor was simply trying to explain the reasons why Movant might have given the gun to Carey. The prosecutor made the complained of statement and then went on to say:

He also knows that Carey has been in trouble.... If a reasonable person was trying to get rid of a weapon that they shot somebody with, yeah, they might throw it in a lake. They might take it to someone else.... Would it be reasonable to take it to the banker? Would you take it down to the cops? No, he was hiding from the cops. Would you take it to the person next door? No, you’d probably take it to someone that you know and thought you could trust for all time, maybe someone else that you figured might have a little knowledge about this kind of stuff, because that person had been in trouble too. They had been friends for 22 years.

We conclude that the prosecutor’s comment did not demonstrate a “calculated intent to magnify the defendant’s decision not to testify so as to call it to the jury’s attention.” Richardson, 923 S.W.2d at 314. Movant’s trial counsel’s failure to object to such a comment was therefore not ineffective assistance of counsel. Movant’s first point on appeal is denied.

II.

In his second point on appeal, Movant claims that the motion court erred in denying his 29.15 motion because both Movant’s trial and appellate counsel provided ineffective assistance in failing to raise the issue of the State’s failure “to timely disclose the deal it made with Gordon Carey .... ” Movant complains that such failure prejudiced him in that “[h]ad the deal with Carey been disclosed, [Movant’s] trial attorney would have- certainly used it to impeach his testimony.”

As previously noted, Movant must show that his trial counsel’s deficient performance prejudiced his trial in order to establish his claim for ineffective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.E.2d 674 (1984). To do this, Movant had to show that but for his trial counsel’s errors, there is a reasonable probability that result of his trial would have been different. See Strickland, 466 U.S. at 694, 104 S,Ct. at 2068; State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994).

Assuming arguendo that there was a deal and the prosecutor failed to formally disclose it, we cannot say that Movant’s trial or appellate counsels were ineffective in them alleged, respective “failures to raise that issue at trial or on appeal” because we do not believe that Movant was prejudiced by these purported failures.

Our review of the record indicates that in over eight pages of trial testimony Mov-ant’s trial counsel impeached Carey by questioning him at length about various charges unrelated to this case and asked Carey if he was “looking at a possibility of doing up to 49 years.” Trial counsel also questioned Carey about his previous criminal convictions. Additionally, Movant’s trial counsel alluded to conversations between Carey and trial counsel’s investigator the previous summer, regarding the prosecution’s purported threats to charge Carey with possession of the gun in question if he didn’t cooperate. Further, Mov-ant’s attorney cross-examined Carey regarding a deal with the prosecutor relating to Carey’s guilty pleas to some of the previously mentioned pending charges in exchange for a “120-day callback” where he would spend approximately 120 days in a special “shock” program. We also discern from our review of the trial record that Movant’s trial counsel certainly knew there had been some sort of deal made, as evidenced by his comment to the trial court when Carey denied the existence of such a deal. Trial counsel stated: “Judge, either somebody is lying to me, or [the Prosecutor] is or [Carey] is, because when [we] were talking about this stuff earlier, [the Prosecutor] told me [Carey] had a deal to testify truthfully.”

Movant’s trial counsel effectively impeached Carey. Our review of the entire record does not leave us with a .“definite and firm impression that a mistake has been made.” Harris, 870 S.W.2d at 814-15. Neither trial nor appellate counsel acted ineffectively. Boyce, 913 S.W.2d at 429. Movant’s second and final point is denied.

The judgment of the motion court is affirmed.

GARRISON, C.J. and MONTGOMERY, P.J., concur.

      . "A direct reference to an accused’s failure to testify is made when the prosecutor uses words such as 'defendant,' 'accused’ and ‘lestify’ or the equivalent.” State v. Lawhorn, 762 S.W.2d 820, 826 (Mo. banc 1988).

      . As best we can discern from the record, only after the 120-day "shock” program agreement was made with Carey, was Carey's connection with the case at hand discovered by authorities. It appears that Carey was then told that his truthful testimony in the case at hand constituted a condition of his being granted probation after the 120-day call back.


author: ROBERT S. BARNEY, Judge.

text:
    James W. GARNER, Respondent, v. Susan E. HUBBS, Appellant.
    No. 22837.
    Missouri Court of Appeals, Southern District, Division Two.
    May 31, 2000.

      Charles T. Rouse, Salem, for Appellant. Respondent’s attorney: No brief filed.
   ROBERT S. BARNEY, Judge.

Appellant, Susan E. Hubbs, (“Wife”) appeals from the judgment entered by the Circuit Court of Dent County denying her motion for contempt, and for other relief including attorney fees, against her former husband, James W. Garner (“Husband”). In her motion, Wife prayed for the court to “apply such sanctions and enter such orders as the court sees fit.” Among other forms of relief, Wife sought the “execution of other documents as the court deems just” relative to the enforcement of Articles II and III of a property settlement agreement incorporated in a Decree of Divorce entered by the Superior Court for the State of Alaska, Third Judicial District at Anchorage. Wife’s appeal followed.

According to the property settlement agreement incorporated in the decree of divorce, “[t]he parties were married at Fortville, Indiana, on or about October 30, 1965, and were remarried at Anchorage, Alaska, on June 20, 1986.” Wife has lived in Salem, Missouri, since before the divorce. At the time of the divorce, Husband lived in Anchorage, Alaska. As best we can discern, Husband retired from military service December 1, 1995, and subsequently moved his residence to Phelps County, Missouri, at an unspecified date. The record reveals that he began employment with the Rolla Police Department in January of 1997.

Wife’s pleadings primarily centered around the provisions of Article III of the Agreement, relating to the division of Husband’s “Military Retired Pay.” The applicable passages from Article III are listed below for ease of reference.

C. This agreement and any implementing order shall be interpreted in light of the Uniformed Services Former Spouses’ Protection Act ... codified at 10 U.S.C. § 1408, as amended, and is subject to modification should it become necessary to conform this agreement to the requirements of the Act or the implementing regulation.
E. [Wife] is entitled to 25 percent of [Husband’s] gross military retired pay plus the same proportionate share of any cost of living or other increases, as her property interest in [Husband’s] military retired pay. The term “gross retired pay” for the purposes of this agreement means the total monthly retired or retainer pay to which [Husband] is entitled absent deductions set forth at 10 U.S.C. § 1408(A)(4). [Husband] agrees to apply for military retired pay at the earliest possible opportunity.
P. Because of the provisions of the Act, the servicing finance center ... will only pay to [Wife] a portion of [Husband’s] “disposable retired pay” as defined in the Act. There will, therefore, be a deficiency in each payment from the Center in the amount of the difference between her percentage share of [Husband’s] pay stated in paragraph “E” above and the percentage of his “disposable retired pay.”
G. Therefore, on a quarterly basis, the parties shall reconcile the differences between that which should have been received by [Wife] and that which was actually paid by the servicing finance center. This reconciliation is necessary because the Center will base [Wife’s] payments on a percentage of [Husband’s] “disposable retired pay” as defined in the Act. Such reconciliation shall be on or before March 31, June 30, September 30 and December 21 of each year. The parties shall exchange information on the amount due and any such difference will be paid within 15 days of the quarterly reconciliation.
H. [Husband] is appointed as trustee for the benefit of [Wife] to the extent of her interest in the portion of his military retired pay hereby awarded to her. [Husband] will pay to [Wife] her said interest no later than 5 days after he receives payment from the Center. This paragraph shall be applicable until a direct payment takes effect so that [Wife] will receive her payment directly from the Center and shall be effective for any month for which [Wife] does not receive direct payments from said Center.
I. [Husband] will, under penalty of contempt, pay [Wife] her interest in his retired pay as herein provided. [Husband] is not relieved of this obligation except to the extent that he is notified that the interest of [Wife] has be paid directly to her by the servicing finance center.
J. [Husband] will be personally liable for any costs, including attorney’s fees, that may be incurred by [Wife] in enforcing her rights or collecting such benefits from [Husband].
K. [Husband] shall provide to [Wife] a legible copy of any retiree pay account statement and Form W2P he receives within 5 days of receipt of said statement.
L. [Husband] will execute a statement directed to the personnel sections of his service authorizing said offices to release to [Wife] his current home address and any pay information [Wife] requests.
N. Payments of [Husband’s] retired pay will terminate upon his death, and therefore, payments to [Wife] of her share will also terminate. However, the government has established the Survivor Benefit Plan (SBP) by which payments to a stated beneficiary of a portion of [Husband’s] retired pay will continue after his death. Applicable statutes allow a former spouse to be designated a beneficiary under the SBP, and as a just and equitable division of [Husband’s] military retired pay, [Husband] should elect coverage under the plan in such an amount as to provide [Wife] 25% of his gross military retired pay, and [Wife] should be designated as [Husband’s] “former spouse” beneficiary under the SBP.
O. At the earliest possible opportunity, [Husband] shall elect to participate in the SBP for the said 25% coverage and name [Wife] as his proper “former spouse” beneficiary by promptly executing any and all documents necessary to effect said election. [Husband] shall promptly provide [Wife] a copy of said documents evidencing his election.
P. Should [Husband] fail to make a timely election of SBP, he will provide a commercial annuity that will provide the same.

Among the allegations in her pleadings, Wife complained that Husband faded to comply with paragraphs G, H, K, L, 0, and P of Article III, of the agreement and that Husband was in contempt for “not complying voluntarily with any of the provisions of paragraph[s] E through P of Article III of said settlement....”

As best we can discern from the record, two hearings were held in this matter and the cause was continued numerous times in a fruitless effort to reach a settlement. The trial court filed its Findings and Judgment on January 22,1999.

In its judgment denying Wife’s requested relief, the trial court determined that:

[t]he aforesaid Judgment required [Husband] to make an election for a survivor annuity for the benefit of [Wife] in connection with his military retirement. [Husband] has complied with the court’s orders in this regard by making such an election. A dispute exists between the parties preventing them from making a full accounting between themselves concerning interpretation of the Judgement, to-wit: whether [Husband] or [Wife] is required under the Judgment to pay the premium necessary for implementation of the survivor benefit plan inuring to the benefit of [Wife]. The court finds that the Judgment contains no language concerning which party is responsible for the payment of this premium which, as of this date, amounts to $30.45 per month.

Additionally, the trial court found that the Alaska court’s “Judgment of Dissolution of Marriage” was “ambiguous concerning who is responsible for payment of the survivor benefit plan premium....” Furthermore, while the trial court’s judgment found that Husband had been represented by counsel during the divorce proceedings, it noted that the Judgment had been drafted “by an attorney who was then representing the interests of [Wife].” The court then construed the agreement against Wife and in favor of Husband; ordered that she “pay whatever premium is from time-to-time charged as a consequence of the survivor benefit plan election previously made by [Husband] ... ”; ordered each party to pay his or her own attorney’s fees; and taxed costs against Husband.

Wife appeals contending five points of trial court error. Wife’s first three points all relate to trial court error arising from the trial court’s interpretation of Husband’s obligations under the provisions of Article III. Wife’s fourth point reiterates all of the major contentions from her motion, inclusive of Husband’s failure to comply with certain procedural requirements set out in the agreement together with Husband’s failure to pay Wife certain refinement funds prior to Wife having received direct payments from the United States Government. In her fifth and final point, Wife complains of trial court error in not awarding her attorney’s fees. We affirm in part and reverse and remand in part, with directions.

Discussion and Decision.

In reviewing the judgment of a court-tried case, this Court views the evidence and permissible inferences drawn therefrom in a light most favorable to the judgment. See Rule 84.13(d), Missouri Court Rules (2000). The judgment will be affirmed unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law. Creech v. Creech, 992 S.W.2d 226, 229 (Mo.App.1999).

Points I, II, III.

Wife maintains in her first three points that: (a) there was insufficient evidence supporting the trial court’s findings that Husband had made a timely SBP election naming Wife as beneficiary in an amount equal to 25% of Husband’s “gross military pay”; (b) that the trial court erred in declaring that the Alaska judgment failed to “establish who is to pay for the premium on the [SBP]”; and (c) that the trial court erred in its determination that the parties’ agreement was ambiguous, thereby construing the agreement against Wife and determining that Wife was responsible for the payment of premiums on the SBP. These points are inter-connected and will be reviewed out of order for the sake of clarity.

Wife contends that the trial court erred in determining that the separation agreement was “ambiguous” on the issue of who was to pay the premium associated with the SBP election. As previously noted, the trial court construed this provision relating to premium payments against Wife because the agreement was drafted “by an attorney who was then representing the interests of [Wife].” Whether the terms of a separation agreement are ambiguous is a question of law. Frager v. Frager, 949 S.W.2d 173, 176 (Mo.App.1997); State ex rel. Mo. Dam, 950 S.W.2d at 929. “A contract is ambiguous only if its terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.” Frager, 949 S.W.2d at 176.

The mere fact that the parties disagree on the interpretation of a contract does not render the document itself ambiguous. The test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible to more than one construction giving the words their plain and ordinary meaning as understood by a reasonable person. ... Furthermore, an interpretation of a contract or agreement which involves unreasonable results, when a probable or reasonable construction can be adopted, will be rejected.

State ex rel. Mo. Dam, 950 S.W.2d at 929 (quoting St. Louis Police Officers’ Ass’n v. Board of Police Comm’rs, 846 S.W.2d 732, 740 (Mo.App.1992)).

Under Article III, paragraph O of the separation agreement, Husband was to “elect to participate in the SBP for the said 25% coverage and name [Wife] as his proper ‘former spouse’ beneficiary by promptly executing any and all documents necessary to effect said election.” (Emphasis added). Husband would have us construe this portion of the agreement to mean that his only obligation was to fill out the paperwork for the SBP election. Such a construction ignores the provision that Husband was required to provide a commercial annuity if he failed “to make a timely election of SBP.” The most reasonable interpretation of this portion of the agreement is that the parties intended for Husband to provide Wife an annuity of some sort, whether through the military retirement system or by a commercial annuity. Accordingly, Husband is required to make premium payments to implement the provisions of Article III, paragraph 0 of the separation agreement. The trial court erred as a matter of law in finding the separation agreement “ambiguous concerning who is responsible for payment of the survivor benefit plan premium.... ”

Additionally, we observe that Husband’s Exhibit C was offered and admitted into evidence. As best we can glean from its review and Husband’s testimony, the third and fourth pages of the exhibit appear to be a federal government form. On page 4 of the form, is found the heading “Section VII — Survivor Benefit Plan (SBP) Election.” This section contains three sub-sections, namely: number 28, “Beneficiary Category,” in which we find an “X” placed next to the words “I elect coverage for the person named in Item 30 who is my former spouse”; number 29, “Level of Coverage,” which also has an “X” placed next to the words “I eléet coverage with a reduced base amount of $598.00”; and sub-section 30, “Name of Insurable Interest or Former Spouse Beneficiary,” where we find Wife’s name. Wife’s address is listed as “Unknown, Salem MO.” The form is signed by Husband and dated “3 Nov 95.” The form is also signed by a witness, ‘William H. Fuller,” whose address is listed as “Transition Assistance Office, Ft. Richardson AK.” At the hearing, Husband testified that at the time of his retirement he filled out “a form for the SBP program.... ” Husband further testified that he gave the federal government a copy of the Alaska divorce decree and that the federal government allowed him to apply for the SBP.

In our review, although we find that husband made an SBP election in Wife’s name, we are not convinced that Husband made the requisite election to provide survivor benefits equal to 25% of his gross military retirement pay to Wife. Exhibit C reflects that Husband elected “coverage with a reduced base amount of $598.” In his testimony, Husband never explained the significance of making such an election in sub-section 29. He only testified that he applied for the SBP and that he knew that Wife was entitled to a SBP equal to 25% of his gross military retirement pay. There is no way to discern from the form that this election will result in Wife receiving the required 25% of Husband’s gross military retirement pay after his death. Furthermore, Husband failed to comply with the requirement of Article III, paragraph 0 that Husband provide Wife a copy of the documents “necessary to effect said election,” nor was there sufficient testimony presented to support such an inference. Points I, II and III are sustained.

Accordingly, the matter is remanded to the trial court to take further evidence from the parties, as needed, to clarify and make a specific determination as to the Survivor Benefit Plan, consistent with this opinion. Additionally, the trial court is directed to require Husband, at his own expense, within the next 90 days, or as reasonably soon thereafter as possible, to provide Wife with independent proof from United States Government sources of: (a) Husband’s gross military retirement pay, without deductions set forth in 10 U.S.C.A. § 1408(a)(4)(1998), covering that period of time from Husband’s retirement from military service to the time of the hearing specified above; and (b) documents showing that Husband has elected to participate in an SBP, as required by paragraphs O and P of Article III of the separation agreement. Furthermore, in compliance with paragraphs L, and N through P, of Article III of the separation agreement, the trial court is directed to require Husband to execute and give to Wife a document authorizing the appropriate United States Government entity to release to Wife any financial information relating to Husband’s military retirement benefits as she requests, inclusive of periodic retire-merit pay and survivor’s benefit allowance information, as applicable.

Point TV.

In Wife’s fourth point, she reiterates in sub-points A through F many of the complaints contained in previously reviewed points. She also argues that under Article III of the separation agreement Husband acted contumaciously by failing to: (1) quarterly reconcile differences in his “gross retirement pay” and “disposable retirement pay;” (2) provide current address and pay information; (3) provide legible copies of retiree pay accountant statements and form W2P; (4) make a timely election of a survivor’s benefit plan for the benefit of Wife; (5) voluntarily provide information as set out in paragraphs E through P of Article III; and (6) pay Wife 25% of his gross pay as per the agreement, during that period of time prior to Wife receiving direct retirement payments, in violation of paragraph H of Article III. We find this point has no merit.

In our review of civil contempt proceedings, “the trial court’s judgment will not be disturbed on appeal absent a clear abuse of discretion.” Gerau v. Gerau, 927 S.W.2d 441, 443 (Mo.App.1996). “The judgment must be sustained unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously applies or declares the law.” Id. “Civil contempt is intended to benefit a party for whom an order, judgment or decree was entered. Its purpose is to coerce compliance with the relief granted.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). “A prima facie case for civil contempt is established when the party alleging contempt proves: 1) the contemnor’s obligation to pay a specific amount or perform an action as required by the decree; and 2) the contemnor’s failure to meet the obligation.” State ex rel. Missouri Dam and Reservoir Safety Council v. Rocky Ridge Ranch Property Owners Ass’n, 950 S.W.2d 925, 928 (Mo.App.1997). ‘When a prima facie case is established, the eontemnor then bears the burden of proving his or her inability to make payments or perform an action and that noncompliance was not an act of contumacy.” Id.

We must defer to the trial court on questions of credibility of the witnesses. Warren v. Tom, 946 S.W.2d 754, 757 (Mo.App.1997). The “trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.” Crawford v. Detring, 965 S.W.2d 188, 189 (Mo.App.1998). Furthermore, “[c]ontempt is a ‘drastic remedy which should be carefully and cautiously exercised.’” Gerau, 927 S.W.2d at 443 (quoting State ex rel. Stanhope, 533 S.W.2d at 575). “Although many trial courts would have found husband guilty of contempt, we cannot say the trial court erred as a matter of law and that it did not have discretion to deny [that portion of] the motion.” Id. Point denied.

Point V.

In her fifth point, Wife claims the trial court erred in failing to award her attorney fees. We agree.

Missouri courts have historically adhered to the ‘American rule’ that, with certain exceptions, litigants bear the expense of their own attorney fees. Ordinarily, any exceptions fit into one of four categories: recovery of fees pursuant to contract, recovery provided by statute, recovery as an item of damage to a wronged party involved in collateral litigation, and, occasionally, reimbursement when ordered by a court of equity to balance benefits.

McCreary v. McCreary, 954 S.W.2d 433, 452 (Mo.App.1997). Attorney fee provisions in separation agreements fit under the “contract” exception to the “American rule.” See Id. Paragraph J, of Article III, of the separation agreement at issue provides that “[H]usband will be personally liable for any costs, including attorney's fees, that may be incurred by [Wife] in enforcing her rights or collecting such ben-efíts from [Husband].” While, “[i]n most circumstances, the trial court is granted broad discretion to award attorney’s fees ... if a claim for attorney’s fees is made under a provision of the contract, the trial court must comply with the terms set forth therein.” Jackson v. Christian Salvesen Holdings, Inc., 978 S.W.2d 377, 385 (Mo.App.1998) (citation omitted). Wife has shown a legitimate claim for her attorney fees in accordance with the separation agreement’s provisions. Wife’s fifth and final point is meritorious and is sustained.

The judgment of the trial court is affirmed in part; reversed and remanded in part in accordance with the directions of this Court. Further, under our power to “give such judgment as the court ought to give,” Rule 84.14; Brewer v. Trimble, 926 S.W.2d 686, 689 (Mo.App.1996), we award Appellant $1,200.00 for her attorney’s fees. Judgment is entered against Respondent, James W. Garner, in the amount of $1,200.00.

GARRISON, C.J., concurs.

MONTGOMERY, P.J., concurs.

      . Appellant filed her "Petition for Registration of Foreign Judgment" in the Dent County Circuit Court on November 4, 1997.

      . No explanation is found in the record before us relative to whether the parties previously dissolved their 1965 marriage.

      . It appears from the record that the only hearings held were those that occurred on August 25, 1998, and September 29, 1998.

      . Husband has not filed an appellate brief with this Court. “Although there is no penalty for the failure to file a brief, that leaves this court to decide the case without the benefit of [his] contentions and authorities.” In re Marriage of Daneshfar, 953 S.W.2d 95, 97 n. 1 (Mo.App.1997).

      . Husband’s Exhibit A shows that from January 1996 through August 1998 premiums have been taken from his gross pay in varying amounts from $29.82 to $30.45 and total $959.28.

      . In its judgment, the trial court cited to Graue v. Missouri Property Ins. Placement Facility, 847 S.W.2d 779, 785 (Mo. banc 1993), for the proposition that "[w]here a contract is fairly open to two or more interpretations, that construction will be adopted which is against the one who prepared the contract.” Id. We observe that in Graue, the court construed an ambiguous insurance contract against an insurance carrier. The instant matter, however, involves a separation agreement. Even if the separation agreement was primarily drafted by Wife’s attorney, the record shows that Husband was represented by counsel during the Alaska divorce proceedings. It is reasonable to infer that Husband participated in any negotiations involving the language of the separation agreement.

      . The only identifying markings found on the form are the designation "DD Form 2656, Jun 93” printed at the bottom left hand corner of the pages.