author: KENNETH W. SHRUM, Judge.

text:
    In the Interest of A.Y.M., T.M., Appellant, v. State of Missouri, Greene County Juvenile Office, Respondent.
    No. 26122.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 2004.
    Application for Transfer Denied Jan, 19, 2005.
    Application for Transfer Denied March 1, 2005.

      John E. Kelly, Springfield, for appellant.
    Bill Prince, Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

T.M. (“Mother”) appeals a judgment that terminated her parental rights to A.Y.M., her daughter. The juvenile court found evidence existed to support three statutory grounds for termination, namely, Mother abused A.Y.M. (§ 211.447.4(2)); A.Y.M. had been under the jurisdiction of the juvenile court for one year without Mother rectifying the conditions that led to the assumption of jurisdiction by the court (§ 211.447.4(3)); and Mother is unfit to be a party to the parent-child relationship (§ 211.447.4(6)). The juvenile court also found termination of Mother’s rights was in the best interests of A.Y.M. In her only point relied on, Mother asserts the juvenile court abused its discretion in ruling that termination of her parental rights was in A.Y.M.’s best interests. She maintains there was no expert testimony to support that finding. We affirm the judgment.

STANDARD OF REVIEW AND STATUTORY PROVISIONS

A trial court’s decision to terminate parental rights is reviewed under the standards of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). In re S.L.J., 3 S.W.3d 902, 907 (Mo.App.1999). Thus, we will affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 907[5]. The facts and reasonable inferences are viewed in the light most favorable to the judgment with due regard given to the trial court’s determination of witness credibility. In re A.R., 52 S.W.3d 625, 633 (Mo.App.2001).

A juvenile court has statutory authority to terminate a parent-child relationship “if the court finds that the termination is in the best interest of the child and when it appears by clear, cogent, and convincing evidence that grounds exist for termination pursuant to subsection 2, 3, or 4 of [§ 211.447].” § 211.447.5; In re J.M., 1 S.W.3d 599[2] (Mo.App.1999). The best interests prong must be proven by a preponderance of the evidence, and an appellate court reviews that ruling per an abuse of discretion standard. In re P.L.O., 131 S.W.3d 782, 788-89[7,8] (Mo. banc 2004).

FACTS

A.Y.M. was born on August 30, 1995, and was taken into protective custody by the Greene County Division of Family Services (“DFS”) on December 12, 2001.

During the early part of 2001, Mother and A.Y.M. moved to Springfield, Missouri, from Arkansas. In March 2001, Mother met Mike Smith (“Smith”) through a dating service, and he moved into her home in June of that year. About one month later, Smith stopped having sexual relations with Mother.

While Smith was in the home, A.Y.M. told Mother numerous times that Smith was sexually molesting her, but Mother “did not listen.” To illustrate, although A.Y.M. told Mother that Smith “touched” her inappropriately while bathing, Mother continued to allow Smith to take bubble baths with A.Y.M. At the termination trial, Mother claimed “there was no touching between either one of them[ ]” as she was present the entire time. When Mother was asked why she allowed a grown man to bathe with her child, she answered that A.Y.M. “wanted to take a bubble bath with him.” When questioned about A.Y.M.’s complaints about Smith, Mother replied “if she told me I could have blocked it out unwillingly.”

In addition to Mother ignoring Smith’s sexual abuse of A.Y.M., she mistreated A.Y.M. in other ways. For instance, she allowed the child to look at pornographic magazines in the house. Mother often watched pornographic movies in the same room where A.Y.M. was trying to sleep. Also, A.Y.M. was allowed to get “into some of [Mother’s] box of sex toys and [A.Y.M. saw Mother] allegedly licking the dildo and putting it inside [Mother].” On another occasion, Mother took A.Y.M. to a store to purchase a “vibrator.” There was also evidence that Mother, in the presence of A.Y.M., engaged in “cyber-sex” with men over the Internet whereby “a live camera was used by the mother where she and the men could watch each other masturbate.”

Ultimately, A.Y.M. developed severe behavioral problems. These included committing acts of violence, sexually acting out, exposing herself to other children, and refusing to go home. This worsened until A.Y.M. was finally placed in a hospital for troubled youths. While hospitalized, A.Y.M. began telling hospital personnel of the abuses inflicted on her. Thereon, DFS became involved and A.Y.M. was taken into protective custody.

After A.Y.M. was taken from her, Mother initially refused to accept any responsibility for the child’s behavioral problems and refused to recognize that her conduct had led to DFS intervention. There was evidence that despite family counseling sessions over an approximate five-month period, Mother showed absolutely no progress; that although Mother was given extensive therapy designed to make her realize how her actions had adversely affected the child, she still could not or would not fully acknowledge she had caused A.Y.M.’s problems; and she did not alter her conduct.

Specifically, DFS workers testified that Mother persistently denied being told by A.Y.M. that Smith was abusing her. Mother did so even though several other witnesses testified to the contrary. They further testified that as late as 2003, she continued to deny responsibility for A.Y.M.’s situation. This was confirmed, at least in part, by Mother’s at-trial testimony. In referring to AY.M.’s disclosure of the abuse, Mother testified: ‘You know, sometimes I wonder if I could be mad at [A.Y.M.] for what she did.” (Emphasis supplied.) Similarly, when Mother was asked at trial “if she [A.Y.M.] were to tell you [Mother] something today about someone sexually abusing her, [would you be] able to deal with it and cope with it and understand it and not put it back in the recesses of your mind,” Mother answered: “I don’t think I could bury it.” (Emphasis supplied.)

There was also evidence that Mother did not stop trying to put A.Y.M. in harm’s way vis-a-vis male strangers. Thus, shortly after A.Y.M. was removed from the home, Mother met a man from Minnesota over the Internet to whom she later talked several times over the phone. The man wanted to come to Missouri to meet A.Y.M., and Mother tried to arrange that meeting. She did so by asking A.Y.M.’s therapist if she could bring the man to a counseling session so he and the child could meet. Another example of Mother’s questionable conduct was found in a therapist’s testimony that at the end of one counseling session, Mother gave A.Y.M. a “long, lingering kiss” described as “erotic.”

Another witness who had worked with A.Y.M. described her as a “parentified child ... one who is expected to take care of the emotional needs of the parent, rather than the parent taking care of the ... needs of the child.” In a similar vein, A.Y.M. was described as believing she had to be a protector for Mother, i.e., holding the view that if she [A.Y.M.] were not around, something might happen to Mother. As such, the bond that A.Y.M. exhibited toward Mother was seen to be one of “worry.” Based on these and other observations, A.Y.M.’s therapist concluded that the relationship between Mother and A.Y.M. was psychologically unhealthy. There was also evidence that A.Y.M. had expressed her wish to be adopted by someone.

Dr. Mark Stocks, whose testimony Mother cites repeatedly to urge reversal, was a licensed psychologist who worked extensively with Mother for approximately a year and a half after A.Y.M. was taken from Mother’s custody. Although it was stipulated that Dr. Stocks was an “expert,” he was described by another expert as principally an “academic” and had never worked “in child abuse and neglect as much as” other experts who testified at the hearing. Moreover, Dr. Stocks admitted he never met nor counseled A.Y.M.

As to Mother, he opined that she was “on the road” to being able to parent A.Y.M. and had the “tools” to do so, but cautioned that “whether she puts [the tools] into play or not is another issue.” When asked if Mother had made sufficient progress to parent the child, Dr. Stocks said he was only “speculating.” Even so, Dr. Stocks told the court it was his belief that Mother’s parental rights should not be terminated.

He also opined that reunification would be “helpful” to A.Y.M., but did so without having met the child or having information about her psychological state. Moreover, he was never directly asked whether his recommendation against termination would be in A. Y.M.’s best interests. He did testify — without explanation or rationale— that he agreed with research that essentially found that psychologically abused children will survive better if left in the abusive environment.

This appeal was lodged after the juvenile court terminated Mother’s parental rights to A.Y.M.

DISCUSSION AND DECISION

In her only point on appeal, Mother urges reversal of the judgment based on the expert testimony adduced at the termination hearing. We reproduce her point as follows:

“The trial court erred in terminating the parental rights of [Mother] because the trial court’s finding that the termination of parental rights was in the best interests of the minor child was an abuse of discretion in that the only expert testimony heard at trial was by Dr. Stocks and Ann Conn both of whom favored reunification and not termination and that the only testimony the trial court heard favoring termination was the guardian ad litem’s impermissible hearsay statements of what expert witness Ann Conn told him outside of court between September 2, 2003 and September 11, 2003 and which contradicted her in court testimony.”

From this, it appears Mother believes that a judgment terminating parental rights must be reversed unless there is “expert witness” testimony that termination will be in the child’s best interests. That simply is not the law, either via statute or by case law. It is understandable, therefore, that Mother has cited no authority to support such a proposition.

What the law does provide is as follows. Once a juvenile court decides that a pleaded termination ground has been proven, it must make a “best interests” determination. § 211.477.5. As an aid in deciding best interests, the legislature, per section 211.447.6, provided a list of required findings to be made “when appropriate and applicable to the case.” In re A.S.; 38 S.W.3d 478, 486 (Mo.App.2001). Even so, the section 211.477.6 findings are not the only best interest considerations. This follows because “best interests” is “an ultimate conclusion based on the totality of the evidence presented.” In re A.T., 88 S.W.3d 903, 909 (Mo.App.2002).

Mother’s point relied on and argument in support thereof is devoid of any reference to section 211.447.6. Mother has neither addressed nor challenged the court’s section 211.447.6 findings, nor claimed that the court’s ultimate best interests conclusion was unproven by the totality of the evidence presented. As such, she has not preserved a claim that the juvenile court made an error that materially affected “the merits of the action.” See Rule 84.13(a)-(b).

Even so, we have reviewed the entire record and find that the juvenile court’s best interests determination was not an abuse of discretion. This is so because it was supported by a preponderance of the evidence.

The evidence showed and the court found the following: (1) the emotional tie or bond between Mother and child was unhealthy; (2) Mother maintained visitation until those visits were terminated; (3) Mother provided “some” in-Mnd support; (4) no services could be offered Mother which would bring about reunification within an ascertainable period of time; (5) Mother was not committed to the child due to her failure to make sufficient progress; and (6) Mother subjected A.Y.M. to substantial emotional and sexual abuse.

None of these findings weigh in Mother’s favor. Without elaboration, suffice it to say, the evidence recounted in the “facts” portion of this opinion shows that the best interest findings numbered (1), (4), (5) and (6) are supported by a preponderance of the evidence. Repeating that evidence at this point would serve no purpose other than to unduly lengthen the opinion. Moreover, Mother’s brief does not challenge these findings as lacking essential evidentiary support.

As to finding number (2) (maintaining contact), it is true Mother regularly visited A.Y.M. until her visits were terminated. However, she has only written A.Y.M. three or four letters during the extended period A.Y.M. has been in DFS custody. The suspension of visitation privileges does not excuse a parent from providing a continuing relationship with a child. B.L.B., 834 S.W.2d at 799. As in B.L.B., Mother’s excuse, that she is not much for writing letters, is inexcusable. Id.

Although the court found that Mother provided some in-kind support (finding no. 3), this factor likewise does not weigh in Mother’s favor when carefully examined. Thus, the “support” evidence was nothing more than the fact Mother gave A.Y.M. “gifts and things at Christmas or [her] birthday and things like that.” As it did with the visitation issue, the juvenile court appears to have attached little to no weight to Mother’s infrequent and minimal contributions, which it was free to do. § 211.447.7.

In urging reversal, Mother focuses on Dr. Stocks’ opinion that Mother’s rights should not be terminated. Essentially, Mother claims this evidence outweighs any other evidence adduced in the case. We disagree. Regardless of Dr. Stocks’ testimony, his opinion is not enough to outweigh all other evidence to the contrary. As earlier stated, a best interests determination is “an ultimate conclusion based on the totality of the evidence presented.” A.T., 88 S.W.3d at 909 (emphasis supplied).

More than that, Dr. Stocks’ testimony, when carefully analyzed, reveals little more than Mother made some progress. No doubt, this was why he opined Mother was not presently ready to fully parent A.Y.M., i.e., reunification “would need to be a graduated kind of course.” In essence, there was no evidence from Dr. Stocks, nor any other source, showing when, if ever, Mother would become a fit parent. The juvenile court properly weighed this against the fact that permanency is of paramount importance in A.Y.M.’s life.

Finally, we note that the court was free to disbelieve any of Dr. Stocks’ testimony, which it apparently did. In the Interest of C.L.W., 115 S.W.3d 354, 355 (Mo.App.2003). The court’s implicit rejection of Dr. Stocks’ testimony is hardly surprising given his admitted lack of “on-hands” experience and the fact that he had never met, interviewed, nor counseled A.Y.M.

We hold that the juvenile court did not abuse its discretion by finding that termination of Mother’s parental rights was in AY.M.’s best interests. Point denied. The judgment is affirmed.

PARRISH, P.J., and BARNEY, J„ concur.

      . In the same judgment, the court terminated the parental rights of A.Y.M.’s biological father. The father does not appeal; consequently, that part of the judgment is final. In re J.J.P., 113 S.W.3d 197, 199 n. 1 (Mo.App.2003).

      . All statutory references are to RSMo (2000), unless otherwise indicated. The findings regarding the statutory grounds for termination have not been challenged on appeal by Mother; accordingly, we only review that part of the judgment which found that termination of Mother’s parental rights was in the best interests of A.Y.M. See In re J.L.F., 99 S.W.3d 15 (Mo.App.2003); In the Interest of B.L.B., 834 S.W.2d 795 (Mo.App.1992).

      . The section 211.447.6(1-7) “best interest” findings at issue here are:
      "(1) The emotional ties to the birth parent;

        "(2) The extent to which the parent has maintained regular visitation or other contact with the child;
      “(3) The extent of payment by the parent of the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division ... ;
      "(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the children to the parent within an ascertainable period of time;
      "(5) The parent’s disinterest in or lack of commitment to the child;

      "(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.”

      . Rule 84.13(a) provides, inter alia, that "allegations of error not briefed ... shall not be considered in any civil appeal...." In pertinent part, Rule 84.13(b) provides that ‘‘[n]o appellate court shall reverse any judgment unless it finds.that error was committed by the trial court against the appellant materially affecting the merits of the action.”

      . Although some letters were not delivered to A.Y.M., this is Mother’s own fault because of the inappropriate content of her writings.

      . Mother also argues that A.Y.M.’s therapist testified that reunification might be in the child’s best interests if Mother made sufficient progress. The doctor first testified that A.Y.M. should "definitely not [be] reunited with her mother.” On cross-examination, she acknowledged that she did not know what progress Mother made in therapy. She stated that she "would look at [the progress]” and possibly reassess her opinion. Then, the GAL testified to out-of-court conversations he had with both therapists, revealing that the child’s therapist had not changed her opinion in recommending termination. This came in without objection by Mother's attorney and could properly be used by the court. See State v. Crawford, 68 S.W.3d 406, 408[8] (Mo.banc 2002). Regardless, it appears that the court properly considered the testimony for what it was, i.e., the basis of the GAL’s recommendation that termination was in the child's best interests, not necessarily expert testimony by a doctor that termination was recommended; consequently, this would not provide a basis for reversible error. See In the Interest of J.A.R., 968 S.W.2d 748, 751-52 (Mo.App.1998).


source: Caselaw Access Project

author: KENNETH W. SHRUM, Judge. NANCY STEFFEN RAHMEYER,

license: Public Domain

text:
    In re the Marriage of Deloris E. ASHLOCK, Petitioner-Appellant, v. Jack Carroll ASHLOCK, Respondent-Respondent.
    No. 26273.
    Missouri Court of Appeals, Southern District, En Banc.
    Dec. 30, 2004.
    Application for Transfer Denied Jan. 21, 2005.
    Application for Transfer Denied March 1, 2005.

      Susan S. Jensen, Pratt, Fossard & Jensen, LLC, Springfield, for appellant.
    Mark J. Millsap, Brett W. Roubal, Baird, Lightner & Millsap, P.C., Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

Deloris Ashlock (“Wife”) appeals a judgment that denied her request for temporary maintenance. Wife alleges the trial court erred when it denied her motion because the court “erroneously required Wife to consume her marital property before finding she is entitled to maintenance.” We disagree. We affirm.

STANDARD OF REVIEW

A judgment that awards or denies temporary maintenance is final and appealable. In re Marriage of Deatherage, 595 S.W.2d 36, 37-38 (Mo.App.1980). We will affirm the trial court’s judgment on temporary maintenance issues unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Fox v. Fox, 866 S.W.2d 501, 503[1] (Mo.App.1993).

In determining whether to allow temporary maintenance, a trial court enjoys broad discretion; in fact, this discretion is broader than that a trial court possesses when rendering a final dissolution judgment on a maintenance issue. Epple v. Epple, 893 S.W.2d 886, 888 (Mo.App.1995). Further, this discretion extends to the court’s application of the statutory factors that must be considered when a request for temporary maintenance is to be determined. Id. Appellate courts are “extremely cautious” about altering a trial court’s judgment regarding temporary maintenance. Fox, 866 S.W.2d at 503.

FACTS

In 1994 Wife met Jack Ashlock (“Husband”) in Florida. As the relationship progressed, Wife and her four children moved to Missouri from West Virginia to live with Husband. The couple married approximately one year later in 1996.

During their marriage, the family lived luxuriously. Their lifestyle included a 10,000 square-foot, seven bedroom home, expensive cars and gifts, and numerous vacations per year. Although Wife was capable of working as a nurse, the couple decided that she would not work during the marriage. In June 1997, Husband and Wife had their only child, Cole. In November 1998, the couple separated. In August 2002, Wife filed for divorce.

On the same date, Wife filed her motion for temporary maintenance, child support, and allowances. In that motion, Wife claimed that she was “destitute of the means of supporting herself and the minor child” pending resolution of the dissolution action. In his pro se answer to Wife’s motion, Husband averred that he fully supported Wife and the children during the marriage and separation.

At the hearing on the motion for temporary maintenance and support, the evidence supported Husband’s allegation made in his answer. For instance, before the marital home sold, Husband paid all of Wife’s expenses and gave her $3000 per month. In January 2003, the marital home sold for $950,000. At closing, Wife received approximately $470,000 of the sale proceeds and Husband received an equal amount. Thereon, Wife moved into a three-bedroom house for which Husband paid the rent, i.e., $1300 per month. Concurrently, Husband began paying $525 per month in storage unit fees (for storing furniture) and gave Wife $3000 per month in cash. As part of this arrangement, Husband asked Wife to invest the $470,000 and live in the rented house “for a while until she saw how things were going.” Wife, however, ignored this suggestion.

Instead, Wife opted to buy a 4800-square foot, newly-built home for $350,000, using part of the $470,000 in her possession as a down payment. Moreover, she used some of the $470,000 for improvements on the brand-new home. For instance, Wife spent over $7000 for “master bath shutters,” “blinds,” and “kitchen top treatment.” Also, Wife installed a $50,000 swimming pool. While Wife was spending money in this fashion, Husband continued to pay Wife $3000 per month. In addition, he was paying over $1700 per month for her bills.

Wife introduced an income and expense statement at the motion hearing in support of her request for temporary maintenance in the amount of $6233. When the hearing concluded, the court ordered Husband to pay $1705 per month in temporary child support, but denied Wife’s request for temporary maintenance. In doing so, the court found, inter alia, that Wife had sufficient property to provide for her reasonable needs, to wit: $200,000 cash remaining from the proceeds of the marital home. This appeal followed.

DISCUSSION AND DECISION

Wife’s single point relied on maintains the trial court erred in denying her temporary maintenance

“because its finding that Wife did not lack sufficient property to provide for her reasonable needs was based solely upon Wife having cash available to her from the sale of the marital home and the trial court therefore erroneously required Wife to consume her marital property before finding she is entitled to maintenance.... ”

(Emphasis supplied.) To support this argument, Wife cites four cases containing the well-established rule that a person seeking maintenance is not required to consume or deplete his or her marital property to meet his or her expenses before being entitled to maintenance. The fallacy in Wife’s argument and the reason her cited eases are inapposite is that the judgment from which she appeals was entered before the $200,000 or any other marital property was set off or apportioned to either party.

With certain notable exceptions, marital property means all property acquired by either spouse subsequent to the marriage. § 452.330. When parties separate, “[i]t is not unusual for a spouse to dispose of or expend marital property or income prior to the proceeding to distribute property.” Stratman v. Stratman, 948 S.W.2d 230, 239 (Mo.App.1997). At this stage of the proceedings (separation pending dissolution), however, the marital property does not belong to either spouse; the ultimate disposition is still to be determined. Tzinberg v. Tzinberg, 631 S.W.2d 681, 682 (Mo.App.1982).

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

Because Wife appealed the denial of her motion for temporary maintenance, the court was free to consider the amount of money she possessed when making its ruling. Due to the stage at which this appeal has been presented, the cases cited by Wife are distinguishable. Those cases were presented to the appellate court after a division of marital assets occurred. The significance of this distinction becomes apparent upon examining the statute that authorizes a temporary maintenance award.

Section 452.315.5 provides that a court “may issue ... an order for temporary maintenance ... in such amounts and on such terms as are just and proper in the circumstances.” Any such order shall be “[o]n the basis of the showing made and in conformity with section 452.335.” Id.; Jensen v. Jensen, 670 S.W.2d 16, 18 (Mo.App.1984).

The referenced statute, i.e., section 452.335.1 that was made applicable to temporary maintenance awards via section 452.315.5, sets forth a two-part threshold test. “The court must first consider whether the party requesting maintenance has sufficient property, including marital property divided during the dissolution proceedings, to provide for his or her reasonable needs.” In re Marriage of Murphy, 71 S.W.3d 202, 205 (Mo.App.2002) (emphasis supplied). If the party seeking maintenance lacks sufficient property to meet his or her needs, the court then must determine if the party’s reasonable needs can be met through appropriate employment. Id.

It necessarily follows, however, that when a motion for temporary maintenance is ruled before marital property is apportioned, it (marital property awarded to the temporary maintenance movant) cannot be part of the analysis. The property considered by the court here was simply not the property of either spouse. Tzinberg, 631 S.W.2d at 682. Consequently, the premise of Wife’s argument is faulty, i.e., that the trial court’s rejection of her maintenance request forced her to consume her marital property.

Since the $200,000 had not been awarded to Wife, she could spend it for her reasonable needs without adverse consequences and, in doing so, would not be consuming or depleting her marital property. For this reason, the cases Wife cites and the principle espoused therein have no application. We hold, therefore, that the trial court did not abuse its discretion when it denied Wife’s temporary maintenance request for the reason that she had $200,000 to meet her reasonable expenses. We do so because even if Wife has to spend part or all of the $200,000 to meet her reasonable needs, it does not follow that she was forced to spend her marital assets, as she contends.

In so holding, we are not suggesting Wife has free rein to squander or secrete the $200,000 without adverse consequence to her. See Stratman, 948 S.W.2d 230. Moreover, our opinion is not to be read as suggesting Wife’s post-separation expenditures and asserted “needs” were reasonable. We need not reach that issue. We simply hold that Wife had $200,000 in cash available to meet her needs and the trial court’s rejection of her claim for temporary maintenance did not force Wife to expend her marital funds as she claims. Her point lacks merit and is denied.

The judgment is affirmed.

PREWITT and BARNEY, JJ., PARRISH and GARRISON, P.J., and BATES, C.J., concur.

RAHMEYER, J. concurs in separate opinion.

NANCY STEFFEN RAHMEYER,

Judge, concurring.

Based on the limited development of the record at the temporary hearing, I concur in the result; however, I write separately to emphasize that we are not abandoning all of the principles set forth in Cross v. Cross, 790 S.W.2d 928 (Mo.App. E.D.1990). Although it is a given that the $200,000.00 which Wife had in her possession was not her marital property because the property had not been divided by the court in the dissolution, the fact remains that it was marital property pursuant to a dissolution action. Likewise, the $200,000.00 in Husband’s possession is not his marital property and must be appropriately apportioned in the dissolution. It is still the purpose of temporary allowances to maintain the status quo pending final judgment. Id. at 929.

      . These cases are Leslie v. Leslie, 827 S.W.2d 180, 183 (Mo.banc 1992), Anderson v. Anderson, 5 S.W.3d 535, 537 (Mo.App.1999), In re Marriage of Chorum, 959 S.W.2d 900, 907 (Mo.App.1997), and In re Marriage of Schatz, 768 S.W.2d 607, 612 (Mo.App.1989).

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

      . To the extent that our opinion conflicts with Cross v. Cross, 790 S.W.2d 928 (Mo.App.1990), we decline to follow that case based upon the reasoning stated in our opinion.


author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent v. Faron FULLIAM, Defendant-Appellant.
    No. 26155.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 6, 2005.

      Amy M. Bartholow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Faron Fulliam (defendant) was convicted, following a trial without a jury before the Circuit Court of Dent County, Missouri, of the Class C felony of possession of methamphetamine, a controlled substance. § 195.202. Defendant was charged as, found to be, and sentenced as a persistent offender. This court affirms.

On June 29, 2002, defendant was a passenger in a vehicle stopped by Missouri Highway Patrol Trooper James Mulkey. The vehicle was traveling east on Old Route 66 near Cuba, Missouri, when Trooper Mulkey observed it speeding. The vehicle was traveling 66 miles per hour in a 55 mile-per-hour speed zone. Trooper Mulkey recognized the vehicle as one he had stopped two days earlier for invalid registration. The same invalid plates were on the car.

Trooper Mulkey approached the driver’s side of the vehicle after it stopped. He saw “a hose and some cans and stuff [he] was kind of curious about” inside the car. They were items he recognized as commonly used in the production of methamphetamine. The driver and owner of the vehicle was James West. Trooper Mulkey asked the driver to accompany him to his patrol vehicle. Defendant was seated on the front passenger side of the car. Trooper Mulkey permitted defendant to remain in the car.

While talking to Mr. West about the traffic violations, Trooper Mulkey observed defendant moving around in the vehicle. Defendant appeared to be reaching across to the driver’s side of the car and around the passenger seat. Trooper Mulkey was concerned. He explained, “My immediate concern was my safety. I wondered what he was doing up there, you know, what he was reaching for — he might be reaching for a weapon or something similar.” He was also concerned that defendant might be disposing of evidence or hiding evidence of a crime.

Trooper Mulkey asked Mr. West if there was anything in the vehicle about which he needed to be aware. Mr. West told him there was not; that he could search the car. Trooper Mulkey then issued Mr. West a summons for improper vehicle registration. He asked Mr. West if he was sure he would not mind if he searched the vehicle. Mr. West told him to go ahead.

Mr. West remained in the patrol vehicle while Trooper Mulkey approached his car. The trooper asked defendant to step out of the vehicle. Defendant was asked if he “had anything on him.” He was asked to empty his pockets. Defendant did as he was requested. Trooper Mulkey then asked him to step to the rear of the ear. Trooper Mulkey opened the car door. He saw a small plastic baggie next to the passenger’s seat, just to the right of where defendant had been seated. The bag was later tested and determined to contain .01 grams of methamphetamine.

The trooper arrested defendant and advised him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He placed defendant in his patrol vehicle to transport him to the Crawford County Jail. Defendant was asked why he had been moving around while Trooper Mulkey had Mr. West in his vehicle. Defendant answered, “I was making sure I didn’t have anything in my pockets.” Defendant was asked how much methamphetamine he had used. He answered that he had smoked some just before leaving James West’s residence in Cuba, Missouri. He told Trooper Mulkey that he and Mr. West had purchased a quarter bag earlier that day.

Defendant presents one point on appeal. He contends the trial court erred in denying a motion to suppress evidence defendant filed and in considering 1) a baggie containing .01 grams of methamphetamine; and 2) his statement that he was making sure he did not have anything in his pockets. Defendant argues that this evidence was the fruit of an unlawful seizure; “that once Trooper Mulkey had issued [James] West a citation, further detention exceeded the scope of the lawful traffic stop.” Defendant contends that West’s consent to the search was involuntary because he “was confined in the back of the patrol car and not free to leave.”

Defendant’s motion to suppress evidence was filed December 29, 2003, the morning of trial. The motion sought “to suppress any and all evidence derived from the illegal detention of defendant and the motor vehicle in which he was riding ... on June 29, 2002.” Defendant’s attorney suggested that the trial court “take it up simultaneously with the tidal when we proceed with that.” The trial court permitted the motion to be filed and stated it would be taken with the case.

Arguments were heard on the motion at the close of the evidence. The trial court found that defendant had no standing to object to the search of the vehicle because Mr. West, the owner and operator of the vehicle, had consented to the search. The motion was denied.

The state, in its respondent’s brief, argues that defendant did not object to the evidence adduced at trial about which he now complains; that, therefore, the issue defendant asserts in this appeal was not preserved for appellate review. This court agrees.

A specific objection to evidence when offered at trial is required to preserve the issue of the admissibility of the evidence for appellate review. State v. Cardona-Rivera, 975 S.W.2d 200, 203 (Mo.App.1998). This is true notwithstanding that a motion to suppress evidence has not been determined before the trial but has been “taken with the case.” State v. Burge, 39 S.W.3d 497, 499 (Mo.App.2000); State v. Huchting, 927 S.W.2d 411, 415 (Mo.App.1996). This court has, nevertheless, reviewed defendant’s complaints regarding the admission in evidence of the items obtained at the scene of the traffic stop for plain error as permitted by Rule 30.20 and finds no manifest injustice or miscarriage of justice occurred in this case.

Mr. West consented to the search of his vehicle before the trooper issued a summons. The officer observed defendant moving around in the vehicle while he was discussing the traffic violation with Mr. West that had been the basis of the traffic stop. Mr. West was asked if there was anything in the vehicle about which the officer should be concerned. The response was, “[N]o, you can search it.” After issuing the summons, Trooper Mulkey asked again whether Mr. West was sure he would not mind if the officer searched the vehicle. Mr. West answered, “[N]o, go ahead.”

The initial stop of the vehicle in which defendant was a passenger was lawful. Trooper Mulkey observed the vehicle exceeding the speed limit. He had authority to stop the car. State v. Kovach, 839 S.W.2d 303, 312 (Mo.App.1992). His inquiry of James West following the stop and prior to the search of the car was appropriate. The events that resulted in the search of the vehicle occurred prior to the issuance of the summons to Mr. West. They occurred, and the consent to search was given, “within the parameters of the traffic stop itself.” State v. Barks, 128 S.W.3d 513, 517 (Mo. banc 2004), quoting State v. Woolfolk, 3 S.W.3d 823, 829 (Mo.App.1999). James West consented to the search of the vehicle. His consent was voluntarily given. A consensual search is lawful. Woolfolk, supra, at 831. Defendant was, therefore, not the subject of an illegal seizure while Trooper Mulkey performed the search. The trial court committed no error, plain or otherwise. The judgment is affirmed.

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

      . References to statutes are to RSMo 2000.

      . See Rule 24.05. See also § 542.296. These provisions are discussed in State v. Galazin, 58 S.W.3d 500, 504 n. 2 (Mo. banc 2001).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert D. HUDSON, Defendant-Appellant.
    No. 26052.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 6, 2005.

      Amy M. Bartholow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Robert D. Hudson (defendant) was convicted, following a trial without a jury before the Circuit Court of Pemiscot County, Missouri, of murder in the first degree (Count I), § 565.020.1, robbery in the first degree (Count III), § 569.020.1, and two counts of armed criminal action (Counts II and IV), § 571.015.1. Defendant was sentenced to confinement for life without possibility of probation or parole on Count I, confinement for a term of 30 years on Count II, confinement for a term of 30 years on Count III, and confinement for a term of 30 years on Count IV. The sentence for Count II was ordered served concurrently with the sentence for Count I. The sentence for Count III was ordered served consecutively to the sentences for Counts I and II and the sentence for Count IV was ordered served concurrently with the sentence for Count III. This court affirms.

Jimmy Grills was home in Pemiscot County the evening of November 29, 2002. He shared the residence of Shirley Miller. Ms. Miller was at work. Grills, defendant, and defendant’s stepson, Timmy Jackson, were employed at a business called Trinity. Trinity was also known as the Caruth-ersville Shipyard.

Defendant went to Jackson’s home the evening of November 29. Defendant asked if Jackson wanted to go with him to pick up some money. Jackson accompanied defendant. They arrived at Grills’ home about 10:00 p.m. Defendant and Jackson went to the front door and knocked. Grills answered the door. Grills looked at defendant and said, “[L]ong time no see.” Defendant and Jackson went inside.

Defendant and Grills argued. Defendant was demanding money from Grills. Grills told defendant he did not have it. Defendant pulled out a revolver, pointed it at Grills and told him, “[Y]ou’re going to give it to me now.” Grills threw something at defendant. The gun fired. Grills and defendant fought. One other shot was fired after which the revolver malfunctioned.

While defendant fought with Grills, he told Jackson “to give him something.” Jackson explained:

Q. [by the prosecuting attorney] And did you give him something?
A. Yes, sir.
Q. What did you give him?
A. A knife.
Q. Did you open it up before you gave it to him?
A. Yes, sir.
Q. And when he got the knife, what did he do with it?
A. They was fighting and he was hitting him with the knife.
Q. When you say hitting him, do you mean stabbing him or what do you mean?
A. Stabbing and hitting him with it both.

While defendant and Grills fought, Jackson left the living room. He went into a back bedroom. He pulled a telephone cord out. He looked around for something to steal. He did not see anything, so he left the room. Jackson went into a bathroom where he saw a jewelry box on a counter but did not find anything to take. He walked back to the living room where defendant and Grills were fighting. Defendant was still on top of Grills. Defendant was stabbing him and choking him. Defendant told Jackson to get Grills’ wallet. Jackson took the wallet from Grills’ back pocket. Jackson put the wallet in his coat pocket. Defendant got up. He had blood on him. He went into the bathroom.

Grills was on the couch in the living room. He was still alive. He got off the couch and tried to walk to the door. Jackson pushed him against the wall and he fell onto a coffee table and chair arm. Grills tried to use a phone in the living room. Jackson pulled the telephone out of Grills’ hands and pulled the telephone cord from the wall.

Defendant came back into the living room and asked Jackson if Grills was still alive. Defendant grabbed Grills and threw him to the floor. Defendant pulled up the left side of Grills’ shirt “and stabbed him a couple more times in his side.” Defendant grabbed Grills’ head and tried to break Grills’ neck. Defendant and Jackson then left. Grills was not moving.

Shirley Miller returned to her residence in Pemiscot County in the early morning hours of November 30, 2002. When she entered her house, she found Grills lying on the floor. He had gunshot and stab wounds. He died from loss of blood.

Defendant presents one point on appeal. He contends the trial court erred in denying his motion for acquittal chai-lenging the sufficiency of the state’s evidence and in sentencing him on the charge of murder in the first degree. Defendant argues the evidence did not show, beyond a reasonable doubt, that he “deliberated before killing Jimmy Grills.”

The same standard of review is followed in criminal cases tried by the court without a jury as in cases tried by a jury. State v. Mayfield, 83 S.W.3d 103, 104 (Mo.App.2002).
“We accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored. [State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997) ]. We determine whether there was sufficient evidence from which a trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Phillips, 940 S.W.2d 512, 520 (Mo.banc 1997). Moreover, this Court does not weigh the evidence or determine the reliability or credibility of witnesses. State v. Frappier, 941 S.W.2d 859, 861 (Mo.App.1997).”
Id. at 104-05, quoting State v. Matney, 979 S.W.2d 225, 226 (Mo.App.1998).

State v. Parrow, 118 S.W.3d 629 (Mo.App.2003). Sufficient evidence is evidence from which the trier of fact could reasonably have found the issues raised on appeal to be in conformity with the verdict. State v. Bewley, 68 S.W.3d 613, 617 (Mo.App.2002).

The crime of first degree murder consists of three elements: (1) knowingly (2) causing the death of another person (3) after deliberation upon the matter. Section 565.002(3) defines the intent element of deliberation as “cool reflection for any length of time no matter how brief.” The element of deliberation may be proven from the circumstances surrounding the crime. Absent evidence of deliberation, an intentional killing is second-degree murder. [Footnotes omitted.]

State v. Tisius, 92 S.W.3d 751, 764 (Mo. banc 2002), cert. denied, 539 U.S. 920, 123 S.Ct. 2287, 156 L.Ed.2d 140 (2003). See § 565.020.1. The only element of the offense of murder in the first degree that defendant argues was not proven is the element of deliberation.

“Evidence of a prolonged struggle, multiple wounds, or repeated blows may ... support an inference of deliberation.” State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999). Defendant had the opportunity to terminate his attack on Grills in that the attack was a prolonged struggle. Furthermore, defendant left the affray to go into a bathroom to wash up then, when he returned to the living room where Grills lie wounded, asked if Grills was still moving. He then stabbed Grills two more times and attempted to break Grills’ neck.

The evidence disclosed beyond a reasonable doubt that defendant had time to think about his actions before completing the attack that resulted in Grills’ death; that he thereafter inflicted additional wounds that contributed to Grills’ death. Deliberation for purposes of proving murder in the first degree occurs if the actor had time to think and intended to kill the victim for any period of time. See State v. Mitchell, 408 S.W.2d 39, 43 (Mo.1966). The shortness of time for deliberating and premeditating killing is immaterial for purposes of proving murder in the first degree. Id. Defendant’s point on appeal is denied. The judgment is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . References to statutes are to RSMo 2000.


author: ROBERT G. ULRICH, Judge.

text:
    Howard KUHLMAN, Respondent, v. Oric ARNOLD, Appellant.
    No. WD 64011.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    David T. Welch, Camdenton, MO, for Appellant.
    Justin A. Harris, Springfield, MO, for Respondent.
    Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

Oric Arnold appeals the default judgment of the trial court in favor of Howard Kuhlman. Mr. Arnold did not appeal the denial of his motion to set aside the default judgment, filed according to Rule 74.05(d). The appeal is dismissed.

Facts

In April 2001, Mr. Kuhlman and Mr. Arnold entered into an agreement whereby Mr. Arnold would restore Mr. Kuhl-man’s classic Cadillac for a total price of $60,000. The restoration was to be completed by June 1, 2002. In accordance with the agreement, Mr. Kuhlman paid Mr. Arnold $30,000 as a deposit and delivered the ear to him. Mr. Arnold failed to perform any of the work pursuant to the agreement, refused to refund the $30,000 deposit, and refused to allow Mr. Kuhlman to reacquire his car.

Consequently, on January 22, 2003, Mr. Kuhlman sued Mr. Arnold for breach of contract, conversion, and replevin. Mr. Arnold failed to timely answer the petition. Thus, Mr. Kuhlman filed a motion for default judgment on April 23, 2003. Following a hearing on the motion, at which Mr. Kuhlman testified and Mr. Arnold failed to appear, the trial court entered a default judgment awarding Mr. Kuhlman a total of $60,740. The court itemized the judgment as follows: $30,000 for principal amount, $565 for costs of replevin, $30,000 for punitive damages, and $175 for court costs and service fees.

Mr. Arnold filed his verified motion to set aside the default judgment, as provided by Rule 74.05(d), on August 11, 2003. The trial court denied the motion on November 10, 2003, by docket entry. The trial court entered its judgment denying the motion to set aside on March 5, 2004. This appeal by Mr. Arnold followed.

Points on Appeal

In his two points on appeal, Mr. Arnold claims that the trial court’s judgment awarding punitive damages in the amount of $30,000 was against the weight of the evidence and was a misapplication of the law because punitive damages are not recoverable in breach of contract claims. The issues raised by Mr. Arnold might be properly considered on an appeal from a judgment on the merits. Comstock v. Comstock, 91 S.W.3d 174, 175 (Mo.App. W.D.2002). Although Mr. Arnold filed a motion to set aside the default judgment as per Rule 74.05(d), he appeals from the default judgment and not from the denial of the motion to set aside the default judgment.

Rule 74.05(d) provides the mechanism for setting aside a default judgment. The rule states:

Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default.

Thus, Rule 74.05(d) requires that a party seeking to have a default judgment set aside do two things: First, the moving party must plead and then demonstrate both that he had good cause for not filing a responsive pleading and, second, that he had a meritorious defense to the plaintiffs petition. Reed v. Reed, 48 S.W.3d 634, 639 (Mo.App. W.D.2001). “Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.” Rule 74.05(d). “Good cause shown” is an excuse for nonappearance. Brants v. Foster, 926 S.W.2d 534, 535 (Mo.App. W.D.1996).

Appeal properly lies from the court’s denial of a motion to set aside a default judgment and not from the default judgment. Comstock, 91 S.W.3d at 175; Rose v. Rose, 401 S.W.2d 946, 949 (Mo.App.1966). On appeal, the reviewing court examines whether the trial court abused its discretion when it considered the factors stated in Rule 74.05(d). Comstock, 91 S.W.3d at 175-76.

Mr. Arnold appeals from the default judgment and not from the trial court’s denial of his motion to set aside the default judgment, making no allegation that the trial court breached its discretion in denying his motion.

The appeal is dismissed.

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


author: JOSEPH M. ELLIS, Judge.

text:
    SANTA FE TRAIL NEIGHBORHOOD REDEVELOPMENT CORP., Plaintiff, Dr. Joan Walker, Respondent, v. W.F. COEN & COMPANY, et al., Defendant, Dr. Henrik A. Knudsen and Rogene F. Knudsen, Appellants.
    No. WD 63699.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Rehearing Denied March 1, 2005.

      Ralph E. Pratt, Independence, Mo, for appellants.
    Michael W. Blanton, Lee’s Summit, Mo, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellants, Dr. Henrik A. Knudsen and his wife Rogene F. Knudsen, appeal a judgment of the Circuit Court of Jackson County in their civil action for apportionment and distribution of an award of damages which was paid into the registry of the court after certain real property they owned was condemned. The Knudsens claim the trial court erred in distributing a part of the award to Respondent, Dr. Joan R. Walker, since Dr. Walker was not entitled to any distribution whatsoever. We reverse and remand for entry of a new judgment in favor of Dr. Walker.

The underlying facts of this case are undisputed. In 1965, the Knudsens purchased real estate located at 1520 South Noland Road in Independence, Jackson County, Missouri (“the Property”). The Property, on which a building had been constructed, was used as a dental office beginning in 1967, and Dr. Knudsen practiced dentistry there until he retired in 2001. In 1977, the Knudsens built an addition onto the front of the budding, connecting to the building’s existing plumbing and electrical systems. The reception room for the dental offices in the building was located in the front of the building and was shared by everyone in the building. There was a parking lot in the rear of the building that was also shared by the occupants of the building, as well as by patients.

At some point prior to 1996, Appellants began renting space in the building to another dentist, Dr. Branstetter. At this time, Dr. Walker worked for Dr. Knudsen. Dr. Branstetter subsequently sold his dental practice to Dr. Walker, who, on November 15, 1996, entered into a written agreement with the Knudsens to occupy the office space that had formerly been occupied by Dr. Branstetter. Pursuant to the terms of the agreement, Dr. Walker took possession of her office space in the building on November 15,1996.

The written agreement between the Knudsens and Dr. Walker (“the Agreement”) was titled “PROFESSIONAL OFFICE LEASE AGREEMENT.” It was signed by the Knudsens as “Landlords” and by Dr. Walker as “Tenant,” and throughout the text of the Agreement, the Knudsens were referred to as “landlord” and Dr. Walker was referred to as “tenant.” The Agreement provided that it was a contract to “lease” and “rent” office space in the building to Dr. Walker, who agreed to “accept the Leased Premises in [their] present condition and as suited for the uses intended by” her. That intended use was specified in the Agreement, which further provided that “[t]he Leased Premises shall be used for a professional office space.”

The professional office space leased to Dr. Walker pursuant to the Agreement was described as “office space consisting of 1,164 square feet, more or less,” and was further described as comprising “approximately 46.6% of the total leasable space within the office building.” The diagrams attached to the Agreement indicate that the leased space included a common reception area and a common area in the basement that were to be shared by all occupants. The Agreement also provided that the Knudsens would maintain the building’s rear parking lot, which Dr. Walker and her patients were permitted to use.

The Agreement expressly provided that “[t]his contract shall create the relationship of Landlord and Tenant between the parties thereto” and that “Landlord gives to Tenant exclusive control of the Leased Premises.” In addition, the Agreement gave Dr. Walker the right to “assign this lease or sublease all or portions of the Leased Premises to others if such operation is within the purposes for which the Leased Premises may be used,” as long as she obtained the prior written consent of the Knudsens, which was not to be unreasonably withheld.

The Agreement specified an initial lease term of five years at a basic monthly rental rate of $775 per month, and required Dr. Walker to pay a $775 security deposit for the leased space. The term of the Agreement as initially executed was from November 15, 1996, to November 14, 2001. The Agreement also specified that Dr. Walker had the option to renew the lease for an additional five-year term upon giving written notice to the Knudsens of her intent to do so at any time prior to three months before the end of the original term of the lease. If renewed, the basic monthly rental rate, during each subsequent year following the end of the original five-year term of the Agreement, was to incrementally increase by an amount related to the increase in the Consumer Price Index (CPI) as computed and published by the United States Department of Labor Statistics for the area encompassing the Property-

On December 5, 2000, Dr. Walker’s attorney sent a letter to the Knudsens via certified mail giving them timely notice of Dr. Walker’s desire and intent to renew the Agreement for a second five-year term. On June 1, 2001, Dr. Knudsen retired and sold his dental practice to a third party, Dr. Rodger Suchman. Dr. Such-man wished to rent, as a month-to-month tenant only, the office space previously occupied by Dr. Knudsen in the building, and although this space was slightly larger than the space being rented to Dr. Walker, the rental fee was set at $775 per month, which, after the CPI adjustment provided for in the renewed Agreement between the Knudsens and Dr. Walker, was slightly less than the basic monthly rental rate then being paid by Dr. Walker for the office space she was occupying.

On August 30, 2001, a Petition for Condemnation was filed by the Santa Fe Trail Neighborhood Redevelopment Corporation (“Santa Fe”) requesting, among other things, that all of the real property owned by the Knudsens which was situated in the Martha’s Vineyard Subdivision be condemned as blighted and in need of redevelopment. This included not only the Property, but also an adjacent vacant lot owned by the Knudsens. On November 14, 2001, the trial court entered an order condemning both pieces of real estate.

On March 11, 2002, pursuant to a stipulation between the Knudsens and Santa Fe, the trial court entered a consent judgment reflecting that the Knudsens had agreed to accept the sum of $275,000 in full satisfaction and release of their claim for damages arising from Santa Fe’s condemnation of the Martha’s Vineyard Subdivision real estate owned by the Knud-sens. Santa Fe was ordered to pay $275,000 into the court registry as damages for the takings by Santa Fe, and the trial court also ordered Santa Fe to pay “reasonable tenant moving expenses.”

On March 21, 2002, Santa Fe deposited $275,000 into the court registry. Although the November 14, 2001 order of condemnation expressly granted Santa Fe the right to take possession of the condemned real estate at that time, Santa Fe did not exercise this right. Instead, Dr. Walker continued in uninterrupted possession and control of her office space in the budding on the Property until she vacated the premises on December 31, 2002.

As authorized by § 523.053.1, on March 25, 2002, the Knudsens filed a motion requesting that the condemnation damage award be apportioned to reflect the respective legal interests of both themselves and Dr. Walker in the Property, a copy of which they served on Dr. Walker. Although this motion described Dr. Walker as a “tenant” of the Property who was “entitled to [receive] moving expenses” from Santa Fe under the terms of the March 11, 2001 consent judgment and acknowledged that Dr. Walker claimed a leasehold interest in the Property pursuant to the Agreement, the motion further requested an order commanding the court clerk to disburse to the Knudsens all of the $275,000 being held in the court registry.

On March 28, 2002, Dr. Walker filed a response to the Knudsens’ motion in which she claimed a bonus value leasehold interest in the condemnation proceeds pursuant to the renewed Agreement and requested that the trial court retain the proceeds in the registry “until such time as the Court can determine the interest of the various claimants to this sum.” On April 28, 2003, the trial court entered an order of partial distribution in which it directed, in accordance with a stipulation between the parties, that the sum of $225,000 be paid to the Knudsens out of the registry and that the remaining $50,000, which was still the subject of a dispute between the Knudsens and Dr. Walker, be placed in an interest-bearing bank account until further order of the court.

In November 2003, the trial court held a hearing on the Knudsens’ motion for apportionment and distribution and received evidence presented by the Knudsens and Dr. Walker. Dr. Walker presented the testimony of an expert real estate appraiser, William Davis, while the Knudsens also presented the competing testimony of another expert real estate appraiser, Larry Witt. After considering this and other evidence, on December 12, 2003, the trial court entered a judgment finding that with regard to the Property in question, Dr. Walker’s proportionate share of the condemnation damages that had been paid into the registry by Santa Fe was $47,000. On January 12, 2004, the trial court issued an amended judgment finding that Dr. Walker was also entitled to recover the interest that had accrued on her $47,000 proportionate share, leading to the instant appeal.

The familiar standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), governs appellate review of a trial court’s order or judgment apportioning, pursuant to § 523.053, a damage award in a condemnation proceeding. State ex rel. Mo. Highway & Transp. Comm’n v. Gillespie, 86 S.W.3d 459, 463 (Mo.App. W.D.2002). “Under that standard, we are to sustain the action of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. We should utilize our power to set aside a judgment with caution and only upon a firm belief that it was erroneous.” State ex rel. Mo. Highway & Transp. Comm’n v. Quiko, 923 S.W.2d 489, 493 n. 2 (Mo.App. S.D.1996) (internal citations omitted).

The Knudsens raise five points on appeal, which we will address out of their original order. In their second point, the Knudsens claim the trial court erred in apportioning any part of the condemnation damage award to Dr. Walker because she did not have a compensable interest in the Property in that the Agreement was merely a license revocable at will, not a lease creating a landlord-tenant relationship. We disagree. While the Knudsens are correct that one whose right to enter real estate owned by another is merely a license does not have a compensable legal interest in the property if it is subsequently condemned, under the plain terms of the Agreement, Dr. Walker was clearly a lessee, not merely a licensee.

The difference between a lease and a license is a “technical distinction which is ‘often difficult to determine.’ ” St. Louis Southwestern Ry. Co. v. State Tax Comm’n, 319 S.W.2d 559, 564 (Mo.1959) (quoting 51 C.J.S. Landlord & Tenant § 202e(2)). This distinction is critical in condemnation cases because while “a leaseholder possesses an interest in property for which he must be compensated in condemnation!;,] a mere licensee generally does not.” State ex rel. State Highway Comm’n v. Johnson, 592 S.W.2d 854, 857 (Mo.App. E.D.1979).

In order for one to have a com-pensable interest in a condemnation proceeding, “[t]he interest held [in] the property for which compensation must be rendered ... must consist of some definite right of domination in and over the [property], such as the right of user, or exclusion, or disposition. A mere contractual relationship is not sufficient in itself.” Millhouse v. Drainage Dist. No. 48 of Dunklin County, 304 S.W.2d 54, 58 (Mo.App. S.D.1957). Other than to show their express intent, it matters not what the parties themselves call them agreement. Friend v. Gem Int’l, Inc., 476 S.W.2d 134, 137 (Mo.App. E.D.1971). “Rather, the nature of the relationship depends upon how it fits within the standards set by the law.” Id. “The denomination of an instrument as a ‘license’ or a ‘lease’ by the parties cannot alter or affect its true nature. It assumes its correct appellation by reason of the rights and obligations created by its terms under the law.” Id.

A lease is generally regarded as a conveyance or grant of an estate in real property for a limited term with conditions attached, and in this connection has been defined as a conveyance to a person for life or years, or at will, in consideration of a return of rent or other recompense, and as a conveyance of any lands or tenements, usually in consideration of rent or other annual recompense, made for life, for years, or at will, but always for a less time than the lessor has in the premises.

State ex rel. St. Louis County v. Evans, 346 Mo. 209, 139 S.W.2d 967, 969 (1940) (internal quotation marks omitted). Thus an “ ‘estate’ in the leasehold context requires simply a conveyance of a lessor’s interest in real property for a limited term.” Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., Inc., 656 S.W.2d 766, 778 (Mo.App. W.D.1983).

A license is only a privilege to enter certain premises for a specific purpose. A license does not vest any title, interest or estate in the licensee and may be revoked at the will of the licensor. In contrast, a lease is “any agreement which gives rise to relationship of landlord and tenant” and said “contract is for exclusive possession of tenements for a determinate period.” A landlord-tenant relationship is created when: (1) there is reversion in the landlord; (2) creation of an estate in the tenant either at will or for a term less than that which the landlord holds; (3) transfer of exclusive possession and control of the tenant; and (4) a contract.

Kimack v. Adams, 930 S.W.2d 505, 507 (Mo.App. E.D.1996) (internal citations omitted). As this court has put it:

[T]he principal test for determining whether the relationship created is that of landlord and tenant rather than that of licensor and licensee is whether the contract confers exclusive possession of the premises as against all the world, including the owner, and a mere permission to use land, dominion over it remaining in the owner and no interest in, or exclusive possession of, it being given, is but a license.

Wandell v. Ross, 241 Mo.App. 1189, 245 S.W.2d 689, 693 (1952) (internal quotation marks and original emphasis omitted).

Whether a particular agreement is a lease or a license depends on whether or not it shows the intention to establish the relation of landlord and tenant, such intention being determined from a consideration of the entire instrument, and the circumstances under which it was made.... Definiteness of the space to be occupied is one of the criteria for determining whether the instrument is a lease.

Johnson, 592 S.W.2d at 857-58 (internal quotation marks omitted).

Applying the facts to this well-developed body of Missouri law, it is clear that the contractual Agreement between the Knud-sens and Dr. Walker was a lease creating a landlord-tenant relationship and a leasehold estate, rather than merely a revocable license. To begin with, the technical words of a lease appear throughout the entire Agreement, which, when considered along with the circumstances under which it was made, is a very strong indication that from the outset, both parties intended it to be a lease rather than a license.

Moreover, the Knudsens held a fee simple interest in the Property, while Dr. Walker was granted a possessory interest therein for only a limited term, i.e., five years. The parties mutually agreed to a fixed rental rate for a definite amount of office space for the period of five years, and at the conclusion of this period, possession of that office space would revert to the Knudsens unless the Agreement was renewed. See Kirk v. Mattier, 140 Mo. 23, 41 S.W. 252, 254 (1897) (noting that contract language specifying “the term of years and the fixed rent” was “inconsistent with a mere license.”)

Furthermore, Dr. Walker’s actions of paying the security deposit and making regular monthly rental payments to the Knudsens, along with her actual continuous possession and control of the office space for the purposes authorized by the terms of the Agreement, fulfilled the express intention of the parties that Dr. Walker enjoy exclusive possession and control thereof during the term of the Agreement. The Agreement further granted Dr. Walker the right to assign her interests under the Agreement or sublease all or any portion of the office space to a third party for similar uses upon prior written consent of the Knudsens, which consent was not to be unreasonably withheld. These factors are all inconsistent with the grant of only a license, because “[o]ne of the essential characteristics [of a license] is the absence of the right to possession of the land.” Friend, 476 S.W.2d at 138.

In addition, the Agreement nowhere states that it could be revoked at the whim or pleasure of the Knudsens. This, too, is entirely inconsistent with a mere license, because “[t]he essential attribute of a bare license is the right of the grantor to freely revoke it any time.” Kansas City Area Transp. Auth. v. Ashley, 485 S.W.2d 641, 644 (Mo.App. W.D.1972). To the contrary, the Agreement gave Dr. Walker the option to renew the Agreement for an additional five-year term simply by giving timely written notice to the Knudsens of her intent to do so. “The holder of an option to renew a lease has an interest in the land. The right of renewal constitutes a part of the tenant’s interest in the land, and forms a substantial and integral part of the agreement ... It is a part of the estate granted, an interest in or encumbrance on the property.” Land Clearance for Redevelopment Corp. v. Doernhoefer, 389 S.W.2d 780, 785 (Mo.1965) (internal citations and quotations omitted). For this reason, if no other, it can hardly be said that Dr. Walker occupied the office space as only a licensee.

Notwithstanding all this, the Knudsens cite the Agreement as providing that “no estate shall pass out of the Landlord,” claiming that Dr. Walker thereby contracted away her right to claim any estate in the Property — even a leasehold. However, as noted by Dr. Walker, while those words do indeed appear in the Agreement, they have been taken out of their proper context. In its entirety, the quoted clause reads as follows:

NO ESTATE IN LAND: This contract shall create the relationship of Landlord and Tenant between the parties thereto: no estate shall pass out of Landlord.

Taking the Agreement as a whole into consideration, as we must, we think the only reasonable reading of this clause is that the portion cited by the Knudsens is intended to clarify that the Agreement grants Dr. Walker only a temporary (i.e., leasehold) interest in the Property as opposed to a permanent one (e.g., a fee simple interest). See, e.g., White v. Keller, 114 Mo. 479, 21 S.W. 860, 861 (1893).

In short, “[b]y every test known to the law this instrument is a lease.” Kirk, 41 S.W. at 254. Accordingly, we hold that the Agreement between the Knudsens and Dr. Walker was not merely a revocable privilege to enter the Property for a specific purpose, but a fully executed lease which had been properly renewed, by Dr. Walker and at her option, for a new five-year term nearly nine months before Santa Fe commenced condemnation proceedings. Point denied.

In their first point, the Knud-sens argue the trial court erred in apportioning any part of the condemnation damage award to Dr. Walker because she did not have a compensable interest in the Property in that the Agreement had terminated since it provided that the lease term ceased at the time actual possession of the Property was taken by Santa Fe. We disagree, because under the plain terms of the Agreement, Dr. Walker’s right to recover her proportionate share of the condemnation damages paid into the registry by Santa Fe was not impaired or extinguished.

Where, as here, a tract being condemned is subject to a leasehold interest and a single award of damages is made without regard to the lessee’s claim, that amount may be allocated between the owner of the fee interest and the owner of the leasehold interest pursuant to the procedure provided in § 523.053. State ex rel. Mo. Highway & Transp. Comm’n v. Rantz, 43 S.W.3d 436, 440 (Mo.App. S.D.2001). It is then “up to the landlord and the tenant to settle the division thereof by agreement or by litigation.” Land Clearance for Redevelopment Auth. of Kansas City v. Ridge, 781 S.W.2d 104, 106 (Mo.App. W.D.1989); § 523.053.1. “The con-demnor has no responsibility for the apportionment of a damage award, nor is it required to trace the distribution of the proceeds to the [competing] parties.” State ex rel. State Highway Comm’n v. Morganstein, 588 S.W.2d 472, 477 (Mo. banc 1979) (internal citation omitted).

Under Missouri law, the general rule is that “damages in condemnation require the factfinder to measure the value of the property prior to the taking against its value after the taking. The date of the taking is the date upon which the condem-nor pays the [damage] award into court.” State ex rel. Mo. Highway & Transp. Comm’n v. Starling Plaza P’ship, 832 S.W.2d 518, 520 (Mo. banc 1992) (internal citations omitted). Moreover, “ownership of property for purposes of a condemnation action is determined at the time the petition in condemnation is filed.” Id. at 521. Accordingly, to have a compensable interest in a condemnation award of damages, any claimant thereto must show that it had an interest in the condemned property at the time the condemnor commenced condemnation proceedings. Ticor Title Ins. Co. v. Land Clearance for Redevelopment Auth. of Kansas City, 729 S.W.2d 236, 238 (Mo.App. W.D.1987). As discussed supra, Dr. Walker made such a showing, as she demonstrated that she held a valid, unexpired leasehold interest in the Property on August 30, 2001, the date Santa Fe filed its Petition for Condemnation.

Nevertheless, the Knudsens claim that the Agreement itself divested Dr. Walker of any legally compensable interest she might otherwise have had in the Property. They rely on the following provision of the Agreement:

CONDEMNATION: If the Leased Premises, or any portion thereof should be condemned by any legally constituted authority for any purpose, then the term of this lease shall cease from the date when possession thereof is taken, and rental shall be accounted for as between Landlord and Tenant as of said date. Such termination, however, shall be without prejudice to the rights of either Landlord or Tenant, to the extent of their respective interest, to recover compensation and damage caused by condemnation from the condemnor. Neither party shall have any rights in any award made to the other by any condemnation authority, notwithstanding termination of this lease.

The Knudsens claim that by agreeing to this provision, Dr. Walker “contracted away any rights that she might have otherwise had to share in any condemnation proceeds” under Missouri law. Since “[t]he interpretation to be given a contract on undisputed facts is a question of law,” Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 662 (Mo.App. W.D.2003), our review of this issue is de novo. City of Harrisonville v. Pub. Water Supply Dist. No. 9 of Cass County, 49 S.W.3d 225, 230 (Mo.App. W.D.2001). “The cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent. The terms of a contract are read as a whole to determine the intention of the parties and are given their plain, ordinary, and usual meaning.” Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003) (internal citation omitted).

The first sentence of the condemnation clause provides that vis-á-vis the two parties to the lease, the term of the lease was to come to an end and the final rental payment to be determined, not upon the date condemnation proceedings commenced or the leased premises were condemned, but when Santa Fe took actual possession thereof. The second sentence provides that notwithstanding this, “[s]uch termination ... shall be without prejudice to the rights of either Landlord or Tenant, to the extent of their respective interest, to recover compensation and damage caused by condemnation from the condem-nor.” This means that neither party’s right to recover damages from Santa Fe for its respective compensable interest in the condemned Property was to be impaired, compromised, or eliminated by the lease termination provision contained in the first sentence. Finally, the third sentence provides that, again notwithstanding the lease termination provision contained in the first sentence, neither party “shall have any rights in any award made to the other by any condemnation authority.” This simply means that neither the Knud-sens nor Dr. Walker had any rights in any award of condemnation damages made to the other by Santa Fe.

In urging a contrary result, the Knud-sens rely heavily on the Eastern District’s decision in Bi-State Dev. Agency v. Nikodem, 859 S.W.2d 775 (Mo.App. E.D.1993), which they characterize in their brief as the “ruling case law that controls this case.” That reliance is misplaced, though, because the contract at issue in Bi-State was dissimilar to the Agreement here. In Bi-State, the court considered a lease provision that read as follows: “In the event all of said premises shall be appropriated or taken under the power of eminent domain by any public or quasi-public authority, this lease shall terminate and expire as of the date of such taking; and the Lessor and Lessee shall thereupon be released from any further liability hereunder.” Id. at 777 (emphasis added). Based on this language, the court held that inasmuch as the lease expired by its own terms at the time of the taking, the lessee had no unexpired compensable interest in the condemned property at the time of the taking and was, therefore, not entitled to any portion of the condemnation award. Id. at 779-80. “With a termination clause such as the one at issue here,” the Eastern District reasoned, “the leasehold interest terminates and expires by the terms of the very contract that created the interest in the first place. Thus, no property interest of the lessee has been appropriated for public use and there is no constitutional right to compensation.” Id. at 780.

Here, however, the Agreement does not call for termination of the lease upon the date of the taking of the property by the condemnor. Instead, the Agreement provided that the term of the lease (and Dr. Walker’s continued obligation to pay rent to the Knudsens) was to come to an end when the condemnor (Santa Fe) took actual possession of the condemned Property (which did not take place until some time after December 31, 2002), not at the time of the taking (which took place on March 21, 2002, more than nine months earlier). Because the lease was still in full force and effect at the time of the taking, which, as noted supra, is the critical date for determining damages in condemnation, Bi-State is inapposite. Furthermore, and even more critically, unlike the lease in Bi-State, the Agreement contained a separate clause expressly providing that Dr. Walker’s right to recover damages from Santa Fe for her leasehold interest in the condemned Property was not to be prejudiced by the lease termination provision. Thus, it cannot be said that she thereby affirmatively waived or surrendered her right, as a leaseholder under Missouri law, to her proportionate share of the condemnation damage award. Rather, the manifest intent of the parties to the Agreement was that, with regard to the “rights of either Landlord or Tenant, to the extent of their respective interest, to recover compensation and damage caused by condemnation from the condemnor,” the Agreement should be construed as if there had been no lease termination clause at all. Indeed, in Bi-State, the court declared: “Absent a termination clause, the lease terminates because the leasehold interest has been appropriated for public use, thus giving rise to a right of compensation.” Id. (emphasis added).

For these reasons, we hold that the trial court properly concluded that the Agreement’s condemnation clause did not operate to impair or extinguish Dr. Walker’s right, under Missouri law, to recover her proportionate share of the condemnation damages paid into the registry by Santa Fe. Point denied.

In their third point, the Rnudsens claim the trial court erred in entering judgment in favor of Dr. Walker for the amount of the bonus value computed by her expert witness, William Davis, since the evidence he relied on “to establish both market rent and contract rent was based upon incorrect figures, irrelevant facts and improper methodologies.”

The proper measure of damages for condemnation of a lessee’s interest in real property is the bonus value of the unexpired term of the lease as measured by the difference between the market rental and the contract rental for the use and occupancy of the affected leasehold. Doernhoefer, 389 S.W.2d at 784. Thus, “the lessee of property taken by eminent domain is entitled to the ‘bonus value’ of the unexpired term of his or her lease, or the amount by which the fair market rental value of the use and occupancy of the land for the remainder of the lease term exceeds the rent specified in the lease.” Osborn v. Home Ins. Co., 914 S.W.2d 35, 37-38 (Mo.App. E.D.1996). The lessee bears the burden of proving the existence of a bonus value, St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo.App. E.D.1993), and, as here, “where a condemnation award is to be apportioned between a single lessee and a single lessor, the entire award must be allocated to the lessor unless the lessee can prove the existence of a bonus value.” Land Clearance for Redevelopment Auth. of Kansas City v. W.F. Coen & Co., 773 S.W.2d 465, 472 (Mo.App. W.D.1989).

In Doernhoefer, the Missouri Supreme Court discussed the factors to be considered in determining the market value of a leasehold:

[T]he value of the leasehold should be determined from the testimony of qualified expert witnesses as that value which a buyer under no compulsion to purchase the tenancy would pay to a seller under no compulsion to sell, taking into consideration the period of the lease yet to run, including the unexercised right of renewal, the favorable and unfavorable factors of the leasehold estate, the location, type and construction of the building, the business of the tenant, comparable properties in similar neighborhoods, present market conditions and future market trends, and all other material factors that would enter into the determination of the reasonable market value of the property.

389 S.W.2d at 784. Moreover, “[t]he admission or exclusion of evidence in condemnation cases is within the discretion of the trial court, and errors will not result in reversal unless there is a substantial or glaring injustice.” Quiko, 923 S.W.2d at 498. In reviewing the admissibility of such evidence on appeal, “we are mindful that the trial court is allowed wide latitude in the admission of evidence because it is presumed that it will not give weight to that evidence which is incompetent. It is, therefore, difficult to base reversible error on the erroneous admission of evidence in a court-tried case.” Id. (internal citation omitted). The conflicting opinions of experts in condemnation cases such as this “must be weighed by the trier of fact and considered in light of matters such as the knowledge, experience, and attention given to the case. Whether an expert’s opinion is based upon and supported by facts in evidence sufficient to support that opinion is a question of law for the court.” Boatmen’s Trust, 857 S.W.2d at 457 (internal citations omitted).

As mentioned supra, during the apportionment hearing, Dr. Walker presented the testimony of William Davis, who had been in the appraisal business for 45 years and who opposing counsel stipulated was an expert in his field. Davis had extensive experience in appraising leaseholds and had previously appraised leaseholds for such large commercial entities as Kansas City International Airport and Trans World Airlines. He estimated that he had previously appraised the value of twenty to thirty different leaseholds. Davis conducted an appraisal of Dr. Walker’s leasehold interest in the Property and prepared a report setting forth his findings and the basis therefor. This report was admitted into evidence at the hearing.

Davis indicated that he had conducted his appraisal pursuant to the regulations and rules of ethics of the Appraisal Institute and that he had followed uniform standards of professional practice in preparing the appraisal. He testified that he had conducted a careful inspection of both the inside and outside of the building that included taking photographs and making measurements. He also testified that, based upon his measurements, Dr. Walker was actually using a greater amount of square footage than was approximated in the Agreement.

Davis explained that his methodology in appraising Dr. Walker’s leasehold interest consisted of first determining the market rent that should be attributed to the leasehold interest and then subtracting the contract rent actually paid for the leasehold interest. Davis acknowledged that Missouri courts commonly refer to this difference as the “bonus value.” Davis further indicated that, in appraising the value of a leasehold, it is important to distinguish between the “leasable space” and the “adjusted leasable space.” In essence, based on measurements he had made which were described in drawings set forth in his report, he explained that the adjusted leasa-ble space for the Property in question included both the space that was leased to Dr. Walker for her exclusive use and the common areas that were shared by all tenants of the building. Davis testified that he arrived at the adjusted leasable space by determining the square footage that was used exclusively by Dr. Walker, determining the square footage of the area that Dr. Walker shared with other occupants of the building, and then reducing the shared square footage by a percentage to reflect the fact that the area was shared. He ultimately arrived at a final figure of 1197.2 square feet for the adjusted leasable space for the Property.

Davis testified that dental office space is usually more expensive than general office space because the main structure is commonly broken up into a number of smaller rooms and the space is designed to accommodate very specific equipment, such as built-in pneumatic and suction equipment. Thus, in determining market value for Dr. Walker’s leasehold interest, Davis considered eleven comparable properties that were also being leased for use as dental offices. Davis first determined the rent for each of the eleven comparable properties. He then adjusted these rents to reflect differences between the comparable properties and Dr. Walker’s leasehold, taking into account the following factors: (1) whether the dental equipment in the leased premises was installed by the lessor or the lessee; (2) the location of the leased property; (3) the age of the leased property; (4) the condition and design of the leased property; and (5) who paid utilities under the lease. After making these adjustments and accounting for other relevant data, Davis arrived at an average annual market rent of $14.25 per square foot. He then reduced this amount by an additional seven percent to account for lease vacancy rates and the general creditworthiness of dentists, arriving at an average annual rental rate of $13.25 per square foot and an average monthly rental rate of $1.10417 per square foot.

Having arrived at an average monthly market rental rate of $1.10417 per square foot, Davis then determined the difference between this average market rate and the actual contract rate under the Agreement. In determining the amount that Dr. Walker was to pay in rent under the Agreement, Davis took into account the CPI adjustment called for by its terms. He then projected this difference over the term of the lease, including both renewal periods, and, using what he testified to be an appropriate discount factor under the circumstances of seven percent, discounted these amounts to present value to arrive at a final bonus value. Based on these calculations, Davis determined that the bonus value of Dr. Walker’s leasehold was $47,262.88, which he rounded down to $47,000 for the sake of simplicity.

The Knudsens also presented testimony of an expert real estate appraiser, Larry Witt. Witt agreed that the proper method for determining bonus value is to compare the contract rate to the market rate, adjusting the comparable properties for factors such as age and location. While Witt identified two comparable properties that he had used in his appraisal, neither' of these properties was being used as a dental office at the time of his appraisal. Witt also expressed his disagreement with both the comparable properties used by Davis and Davis’ assessment of the value of those properties. In conjunction with Witt’s testimony, counsel for the Knudsens attempted to use an exhibit that set forth the CPI figures issued by the U.S. Department of Labor, but the trial court refused to admit this exhibit into evidence because counsel had failed to establish a foundation for its admission — a ruling the Knudsens do not challenge on appeal. On rebuttal, Davis indicated that he did not believe Witt’s comparable properties provided an adequate basis for appraising the value of Dr. Walker’s leasehold because Witt’s appraisals were not sufficiently similar to the lease in question. In particular, Davis noted that Witt’s comparable properties were not being used as dental offices while Davis’ comparable properties were all being used as dental offices at the time of his appraisal.

We need not further lengthen this opinion by conducting a detañed analysis of each and every alleged evidentiary deficiency identified by the Knudsens in their brief, all of which were fully addressed by Dr. Walker in her brief. From the foregoing discussion of the evidence, it is readüy apparent that Davis’ methodology was consistent with the factors set forth by our Supreme Court in Doemhoefer, and the trial court did not abuse its discretion or otherwise err in relying upon that evidence. Point denied.

In their fourth point, the Knud-sens argue that the trial court erred in entering an in personam judgment against them and in favor of Dr. Walker since eminent domain actions are in rem proceedings and all judgments entered thereon must normally be rendered in rem against the condemnation proceeds, rather than in personam against one or more of the parties. In other words, they claim the trial court erred by stating, in its judgment, that Dr. Walker’s right of recovery was against the Knudsens personally rather than against the funds held in the trial court’s registry. Although this is a highly technical deficiency, we agree.

“In Missouri it is well settled that eminent domain proceedings are in rem rather than in personam proceedings, and that when an award is made and paid into the registry of the court, the fund is substituted for the land and becomes the res.” State ex rel. State Highway Comm’n of Mo. v. Eilers, 445 S.W.2d 374, 376 (Mo.1969). Thus, Santa Fe’s condemnation action was an in rem proceeding, and when the $275,000 damage award was deposited by Santa Fe into the court’s registry, it was substituted for the condemned property and became the res of the condemnation action. Id. So long as that sum or any portion thereof “was not distributed but remained in the registry of the court, the action continued to be one in rem rather than in personam.” Id.

There is no question that the trial court’s original judgment of December 12, 2003, and its amended judgment of January 12, 2004, were both rendered against the Knudsens in personam. The relevant portion of the original judgment reads as follows: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Joan Walker be awarded judgment against Henrik A. Knudsen and Rogene Knudsen in the amount of $47,000 and for costs herein.” The amended judgment contains identical language, except that it added an award of the “interest accrued” on the amount awarded to Dr. Walker during the seven and a half months that had elapsed since the remaining $50,000 portion of the total condemnation award of $275,000 had been deposited into an interest-bearing bank account by order of the trial court.

Based on the record before us, there is nothing to suggest that the $50,000 previously retained in the court’s registry is not still there. Since it appears from the record that the $50,000 remained undistributed and in the registry of the court at the time of the apportionment hearing, the proceeding was still in rem and the trial court could not enter an in personam judgment against the Knudsens. Id. Consequently, both the original and amended judgments are void and the cause must be reversed and remanded to the trial court for its entry of a proper in rem judgment against the res.

For this reason, we reverse and remand with instructions that the trial court enter a new judgment not inconsistent with this opinion. On remand, the trial court is instructed to enter a proper in rem judgment in favor of Dr. Joan R. Walker in the amount of $47,000, plus 94% ($47,000/$50, 000) of the interest which has accrued on the funds in the court’s registry. Likewise, the trial court is further instructed to enter a proper in rem judgment in favor of Dr. Henrik A. Knudsen and Rogene F. Knudsen in the amount of $3,000, plus 6% ($3,000/$50,000) of the interest which has accrued on the funds in the court’s registry.

All concur.

      . In addition to the rent and security deposit, Dr. Walker agreed to pay 46.6% of all monthly utility bills for the Property, as well as all ad valorem personal property taxes resulting from her occupancy thereof. She also agreed to pay for glass breakage, sign damage, and environmental cleanup, disposal, inspections, and fines, if any, and to maintain the leased space in good order and repair, excepting only those repairs expressly required to be made by the Knudsens. Dr. Walker further agreed to maintain, throughout the lease term and at her own expense, a general liability insurance policy covering the leased space, in amounts not less than $100,000 per person and $300,000 per occurrence for bodily injury claims and not less than $50,000 for property damage claims. Finally, Dr. Walker agreed not to store any substances containing components designated as hazardous, dangerous, toxic, or harmful without the prior written consent of the Knudsens.

      . All statutory references are to RSMo 2000.

      . Davis explained his reason for using certain CPI figures and Witt explained why he thought different CPI figures ought to apply. The trial court evidently accepted Davis’ CPI figures.

      . If, on motion by the Knudsens, the entire $275,000 damage award had been distributed to them prior to the § 523.053 apportionment hearing, the trial court would have had jurisdiction to enter an in personam judgment against them and in favor of Dr. Walker for the amount due her as a result of the taking of the bonus value of her leasehold by Santa Fe. “[A] condemnation proceeding may be converted into one in personam if the defendants file a motion requesting payment to them of the amount of the [damage] award and the money is distributed to them. [Such a] request amounts to a general appearance for that purpose because as a result of the distribution of the money the res is gone and the action no longer can be one in rem.” Eilers, 445 S.W.2d at 376-77. Since this did not occur here, we reject Dr. Walker’s claim that the in rem condemnation proceeding was converted to one in personam merely because the Knudsens filed a motion requesting payment to them of the entire amount of the damage award..