author: JAMES K PREWITT, Judge.

text:
    Dennis R. MOORE, Sr., Individually and as Next Friend of Sheryl D. Moore and Dennis R. Moore, Jr., Minors, Plaintiff-Appellant, v. MISSOURI HIGHWAY & TRANSPORTATION COMMISSION, Defendant-Respondent.
    No. 26678.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 24, 2005.

      Dennis M. Murphy, The Murphy Law Firm, Columbia, MO, for Appellant.
    Zachary T. Cartwright, Jr., Senior Litigation Counsel, and Rich Tiemeyer, Chief Counsel, Missouri Highways and Transportation Commission, Jefferson City, MO, for respondent.
   JAMES K PREWITT, Judge.

Dennis R. Moore, Sr. (“Appellant”) appeals the judgment of the trial court dismissing Appellant’s petition. Appellant sought damages in a wrongful death and personal injury suit against the Missouri Highway and Transportation Commission (“Respondent”).,

The facts stated here are taken from Appellant’s petition. On September 29, 2000, at 10:30 p.m., Saundra Norris and her children, Adrian Moore, Sheryl Moore, and Dennis Moore, Jr., were passengers in a 1989 Ford Tempo driven by Saundra’s husband, Michael Norris. The Tempo was driving southbound on Highway B in Pem-iscot County. At the same time, a 1993 Mercury Cougar driven by Misty Buck was traveling northbound on Highway B. Adjacent to the address of 4544 Highway B, Pascóla, Missouri, and 1.5 miles north of the intersections of Highway 84 and Highway 412, there is a reverse curve. Upon entering the curve, Buck’s car skidded across the center line and into the path of Norris’ car. The two vehicles collided.

Adrian Moore, Saundra Norris, and Michael Norris were killed. Dennis Moore, Jr. suffered injuries, including “closed head injury, intraventricular hemorrhage, left humerus fracture, bilateral pulmonary contusions, and numerous blunt traumas, contusions, abrasions and internal injuries.” Sheryl Moore’s injuries included “fracture to the left humerus, fracture to the left first metacarpal, free fluid in the abdomen, lacerations, abrasions, and contusions.”

Appellant, the natural father of Dennis Moore, Jr. and Sheryl Moore, brought suit and was appointed next friend for these minor plaintiffs on July 6, 2004, pursuant to Rule 52.02(c). Appellant alleged that “[t]he extremely flat terrain surrounding Highway B at this location, the straight line of trees running along the highway, and the perfectly straight nature of the highway, as approaching from both directions, gave drivers, to include Misty Buck, a false sense that the highway was perfectly straightf.]” Appellant alleged he suffered a “pecuniary loss” by reason of the death of his daughter, Adrian Moore, and prayed for judgment against Respondent for his loss and on behalf of Dennis Moore, Jr. and Sheryl Moore for the death of their mother, Saundra Norris, as well as for the personal injuries suffered by the children.

Appellant contends that Respondent, as owner of the land upon which Highway B is situated, was aware of the dangerous conditions on this curve, and there were “no warning signs or other devices in place to warn approaching vehicle operators of the upcoming reverse curve.” Appellant believes this absence of warning is contrary to the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (“MUTCD”), adopted by Respondent, and the failure to follow these guidelines led to the collision.

On August 19, 2004, Respondent filed a motion to dismiss Appellant’s petition for “failure to state a claim upon which relief can be granted, in that it fails to allege the elements necessary to establish a waiver [of] [Respondent’s] sovereign immunity[.]” Respondent suggests that Highway B did not pose a threat “but for the intervention of the driver who crossed the eenterline[.]” Respondent petitioned for and was granted a change of venue, and a hearing on Respondent’s motion to dismiss was held on September 28, 2004. On September 29, 2004, the court granted Respondent’s motion to dismiss by docket entry. Appellant filed a Motion for Relief and Reconsideration of Order of Dismissal on October 21, 2004.

On November 9, 2004, the trial court held a hearing on'Appellant’s motion for relief and reconsideration. Appellant argued that Respondent’s use of an aerial photograph of the curve in the September 28, 2004 hearing constituted introduction of evidence outside of the pleadings and turned the motion to dismiss into a motion for summary judgment. The judge “didn’t think” the use of the aerial photograph at the earlier hearing was “wrong.” On November 15, 2004, the court overruled Appellant’s motion. Notice of Appeal was filed on November 23, 2004. On December 6, 2004, the court entered judgment dismissing Appellant’s petition.

It is our initial duty to ascertain whether this court has appellate jurisdiction of the case. AgriBank FCB v. Allison, 907 S.W.2d 229, 280 (Mo.App.1995). The notice of appeal was filed before judgment was issued in compliance with Rule 74.01(a). When notice of appeal has been filed prematurely, the notice shall be considered as filed immediately after the time the judgment becomes final for the purposes of appeal. L.J.B. v. L.W.B., 908 S.W.2d 349, 350 (Mo.banc 1995). The notice of appeal was prematurely filed, but the trial court entered judgment and the notice took effect thereafter. This Court has jurisdiction.

Appellant contends the trial court erred in considering facts and arguments included in Respondent’s written suggestions in support of its motion to dismiss and “factual renditions not contained in the pleadings” in Respondent’s oral argument before the trial court at the September 28, 2004 hearing on Respondent’s motion to dismiss. Appellant also challenges Respondent’s “presentation to the Court of a 3' X 4' aerial photograph of the highway-area in question.” This photograph presented by Respondent, Appellant contends, was “outside of the pleadings.” However, Appellant concedes “[t]here is nothing in the record to clearly show us what consideration the Circuit Court gave to these alleged facts and arguments.”

Appellant also contends the trial court based its decision to grant Respondent’s motion to dismiss on the “belief that the mere existence of a curve without a warning sign does not provide a basis for a finding of dangerous condition in property.” Appellant appears to argue that the trial court determined that the dangerous condition alleged did not meet the criteria for the dangerous-condition exception to the sovereign immunity statute. Respondent counters by stating Appellant failed to state a claim pursuant to the appropriate statute.

As the trial court did not treat the motion to dismiss as one for summary judgment and give the notice required by Rule 55.27(a), we review the judgment as based solely on a motion to dismiss for failure to state a claim for which relief can be granted. The standard of appellate review of an order sustaining a motion to dismiss differs from the standard applied when reviewing a summary judgment. Dent Phelps R-III Sch. Dist. v. Hartford Fire Ins. Co., 870 S.W.2d 915, 917 (Mo. App.1994). “In reviewing an order sustaining a motion to dismiss, all facts alleged in the petition are deemed true and plaintiff is given the benefit of every reasonable intendment.” Id. “When reviewing a summary judgment, an appellate court looks not just to the petition but to all pertinent materials presented to the trial court to determine if there is any material fact issue and that the moving party was entitled to judgment as a matter of law.” Id.

In reviewing a dismissal for failure to state a claim upon which relief could be granted, this Court deems the facts pleaded in the petition to be true. Monroe v. Mo. Dep’t of Corr., 105 S.W.3d 915, 917 (Mo.App.2003). We review the allegations set forth in the petition in order to determine whether principles of substantive law invoked would entitle petitioner to relief. Roy v. Mo. Dep’t of Corr., 23 S.W.3d 738, 742 (Mo.App.2000). “All facts alleged in the petition are accepted as true and construed in the light most favorable to plaintiff.” Keeney v. Mo. Highway & Transp. Comm’n, 70 S.W.3d 597, 599 (Mo.App. 2002).

“It is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal ... to determine on the merits whether” Appellant is entitled to relief. Sandy v. Schriro, 39 S.W.3d 853, 856 (Mo. App.2001), quoting City of Creve Coeur v. Creve Coeur Fire Protection Dist., 355 S.W.2d 857, 859-60 (Mo.1962).

To state a claim under the dangerous-condition exception, a plaintiff must allege facts that show 1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous condition, 3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) that ... the public entity had actual or constructive notice of the condition.

State ex rel. Mo. Highway & Transp. Com’n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998).

In his petition, Appellant alleged that:

The combined effect of [certain] conditions was to cause drivers to see headlights that appeared to be directly in front of them because the road in front of them contained a reverse curve and such that the approaching vehicle was actually in its own lane, but laterally displaced due to the non-perceived reverse curve in the road.

Appellant contends that the effect caused “a false sense that the highway was perfectly straight and that there would be no curves ahead.”

Appellant enumerated five features which caused a “dangerous condition” on the curve. Appellant alleges the collision was a “direct result and con sequence” of the dangerous conditions of the property and the negligence of employees of Respondent. Appellant contends that Respondent was aware of and had notice of the dangerous condition on the curve due to “a history of vehicles crossing the cen-terline at that location[,]” an absence of warning signs, as well as Respondent’s failure to comply with adopted guidelines.

Respondent relies on Herzog v. City of St. Louis, 792 S.W.2d 39 (Mo.App.1990), and its ruling that the City had a “duty” is a condition precedent to liability and is the “seminal issue” in roadway condition cases. There, the court found the petition did not allege a duty to warn of an alleged defect in the road itself. Id. at 40. Here, the petition, construed favorably to Appellant, does so. Point three has merit.

We conclude that the petition set forth a claim for which relief can be granted. The judgment is reversed and remanded.

PARRISH, J., and RAHMEYER, J., concur.

      . Rule 55.27(a) provides that if, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, "matters outside the pleadings are presented to and not excluded by the trial court, the motion shall be treated as one for summary judgment!.]" When this occurs, the parties are to be given notice by the court that it will consider the motion as one for summary judgment and permit them to present relevant matters in response.

      . Section 537.600.1(2), RSMo 2000, enumerates the conditions that waive sovereign immunity:
      Injuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition....


source: Caselaw Access Project

author: KENNETH W. SHRUM, Presiding Judge.

license: Public Domain

text:
    David HILLHOUSE, Alyson M. Unger, and Unger Family Limited Partnership, Plaintiffs-Respondents, v. Steven CREEDON and Bethany Creedon, Defendants-Appellants.
    No. 26602.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 30, 2005.

      Craig A. Smith, The Styron Law Firm, Ozark, for appellants.
    Matthew D. Turner, Armstrong Teasdale LLP, Jefferson City, for respondents.
   KENNETH W. SHRUM, Presiding Judge.

This is another chapter in the litigation among Steven and Bethany Creedon (“Defendants”) and David Hillhouse (“Hillhouse”), Alyson Unger (“Unger”), and the Unger Family Limited Partnership (“Unger Family”) over the ownership and possessory rights to a “4-slip boat dock” located adjacent to Defendants’ home. Hillhouse filed a three-count damage suit against Defendants over their use of the boat dock, as follows: Damages for trespass (Count I), punitive damages (Count II), and damages on a quantum meruit theory (Count III). Hillhouse, Unger, and the Unger Family were the plaintiffs named in Count IV (injunctive relief count).

Early in the litigation, the trial court granted, in part, a motion for summary judgment favorable to Plaintiffs. The judgment dealt with Count I by reciting, “Judgment for Trespass.” Exactly what that meant is unclear, as that phrase is the entire purported adjudication of the trespass count. Conspicuously absent is any mention of damages, even nominal damages.

The summary judgment entered by the court dealt with Count IV by “sustainfing] Plaintiffs’ request for a Permanent Injunction as a result of the evidence adduced at the Preliminary Injunction and due to the Court’s ruling on Count I.” No details were provided, no specifics were given, and no description supplied about what acts or conduct were being enjoined or what acts were being performed. The court simply held that “judgment on Count IV Permanent Injunction, but no ... Attorney Fees.”

As part of its ruling of the summary judgment motion, the court denied Plaintiffs’ request for summary judgment as to Count III (quantum meruit). In doing so, it found that disputed issues of fact remained.

Later, Hillhouse dismissed his punitive damage claim (Count II)- The quantum meruit claim (Count III) was then submitted to the trial court via stipulation. This led to entry of a judgment for Plaintiffs on Count III in the amount of $1.00, with no mention of the partial summary judgment previously entered and no reference to other counts or their disposition. In effect, the trial court entered separate “judgments” by which it attempted to resolve all issues raised by the parties.

Defendants’ notice of appeal recites they are appealing from the judgment on the quantum meruit count with no reference to the earlier summary judgment. Even so, the parties claim that the two “judgments” entered by the trial court should be considered, in toto, as one final judgment. Whether the two judgments should be treated as one (as the parties propose) is not a question we need to reach. This follows because, even if the two “judgments” were considered as one, we must dismiss the appeal as the permanent injunction adjudication is fatally defective due to its non-specific terms; accordingly, no final appealable judgment exists.

Before an appellate court can exercise its jurisdiction for review, a final judgment must be entered. § 512.020; Gibson v. Brewer, 952 S.W.2d 239, 244[3] (Mo.banc 1997). Generally, a judgment is final and appealable only when it disposes of all issues for all parties in the case and leaves nothing for future determination. Jackson v. Jackson, 970 S.W.2d 391, 392 (Mo.App.1998).

However, a trial court has discretion to certify a judgment for appeal, when a case involves multiple claims, under Rule 74.01(b) by expressly finding “no just reason for delay.” Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 538[5] (Mo. App.2001). Even so, “a judgment that requires external proof or another hearing to dispose of disputed issues involved in the litigation is not final for purposes of Rule 74.01(b).” In re Trust of Bornefeld, 36 S.W.3d 424, 426[5] (Mo.App.2001) (emphasis supplied).

In Count TV, the court was asked to enjoin Defendants “from trespassing, entering on or keeping any and all personal property in, on or around the four-slip boat dock [and] issue an Order directing the Sheriff of Taney County to remove any and all personal property of the Defendants from the boat dock.” In the first “judgment” issued by the trial court, the request for injunctive relief was addressed as follows:

“As to Count IV, the Court sustains Plaintiffs’ request for a Permanent Injunction as a result of the evidence adduced at the Preliminary Injunction and due to the Court’s ruling on Count I-Trespass. Judgment sustained as to Count IV partially; but no award of Attorney Fees is made due to two causes: a) there may be a genuine issue as to their applicability in this case; and b) the Court’s belief that the ‘American Rule’ outweighs any exceptions noted by Plaintiffs. No genuine issue as to any material fact is found. Judgment on Count IV Permanent Injunction, but no judgment or award for Attorney Fees.”

Previously, the court had entered a preliminary injunction, “pending the trial and final determination ... [of] Plaintiffs’ Petition for Permanent Injunction,” which enjoined Defendants from trespassing on the boat dock and ordered them to remove any personal property located thereon.

A judgment for a preliminary injunction is not final for purposes of appeal, i.e., appellate jurisdiction only attaches when a judgment for permanent injunction is issued. Hair Kraz, Inc. v. Schuchardt, 131 S.W.3d 854, 854-55 (Mo.App.2004). A permanent injunction “shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the petition or other document, the act or acts sought to be restrained.” Rule 92.02(e).

“An injunction must clearly and specifically describe the acts and things enjoined so as not to be subject to misunderstanding and confusion by those against whom it is directed.” Farmer’s Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d 104, 109[7] (Mo.App.1990). When a judgment for permanent injunction is not clear, precise, and definite in its terms, the judgment is not final for purposes of appeal. Four Seasons Lakesites Property Owners Assoc., Inc. v. Dungan, 781 S.W.2d 269, 271[2] (Mo.App.1989).

Here, the trial court merely sustained Plaintiffs request for a permanent injunction. It made no mention of what acts it sought to restrain. There were no clear, precise, and definite terms. The only possible way to figure out the meaning of the judgment is to resort to the preliminary injunction and the petition. This clearly violates Rule 92.02(e). In no other rulings does the trial court mention the permanent injunction.

Consequently, the judgment is not final for purposes of appeal as the injunction issue between the parties remains pending. The appeal is dismissed.

We remand to the trial court so it can enter a final judgment consistent with this opinion, i.e., one that clearly and specifically describes the acts enjoined so as not to be subject to misunderstanding and confusion by those against whom it is directed and which otherwise complies with applicable procedural rules and case law guidance. In remanding, we also draw attention to the following: (1) Consideration should be given to entering a new judgment that is final and specifically addresses or includes by reference all rulings on all issues in the case; (2) further review should be made of the pleadings to ensure that all issues are resolved, especially the claims for relief as contained in Count I; and (3) further consideration should be given to making the judgments in Counts I and III run in favor of the party bringing those counts.

GARRISON, J. and BATES, C.J., Concur.

      . This litigation started as a four-count suit against Defendants. The first three counts named Hillhouse as the sole plaintiff, yet inexplicably, the part of the judgments that purport to deal with Counts I, II, and III appear to also treat Unger and the Unger Family as plaintiffs in those counts. Collectively, we refer to Hillhouse, Unger, and the Unger Family as "Plaintiffs.”

      . The parties had stipulated to a damage figure, provided the court found Count III was meritorious. The stipulated damages were more than the $1.00 awarded. Even so, neither Hillhouse nor other Plaintiffs — if they were Plaintiffs as to Count III — have complained on appeal about the amount of damages awarded.

      .The statute provides for certain exceptions not applicable here. All statutoiy references are to RSMo (2000), unless indicated otherwise.

      . All rule references are to Supreme Court Rules (2004), unless stated differently.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Dorothy ESKRIDGE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26781.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 30, 2005.
    Ellen H. Flottman, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Dorothy Eskridge (“Movant”) pled guilty to charges of stealing and possession of a controlled substance; however, at the sentencing, Movant requested to withdraw her plea on the charge of possession. Her request was denied; she then timely filed a pro se motion for postconviction relief under Rule 24.035 and a subsequent amended motion for postconviction relief. The motion court made the following order:

The Court now takes up and considers Movant’s Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence, and after being fully advised, said Motion is hereby overruled and denied. Clerk to notify counsel. So Ordered. MLR

The court entered no findings of fact and conclusions of law.

When ruling on a motion for postconviction relief, Rule 24.035(j) requires a motion court to issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. Evans v. State, 105 S.W.3d 574, 575 (Mo.App. S.D. 2003). “Absent findings of fact and conclusions of law, meaningful appellate review is not possible.” Id. The State concedes that the case must be remanded and does not address the merits of Movant’s other points. This cause is remanded to the motion court for findings of fact and conclusions of law on all issues presented by Movant in her Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence.

PREWITT, P.J., and PARRISH, J., concur.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.


author: JEFFREY W. BATES, Chief Judge.

text:
    In re the MARRIAGE OF Laura Lynn DENTON and Dannie Phillip Denton Laura Lynn Denton, Petitioner-Appellant, v. Dannie Phillip Denton, Respondent-Respondent.
    No. 26117.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 31, 2005.

      Fred H. Thornton III, Sikeston, MO, for Appellant.
    Jim S. Green, Sikeston, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Laura Denton (“Wife”) appeals from a judgment which dissolved her marriage to Dannie Denton (“Husband”), divided the Dentons’ marital property and awarded Wife $75 per month as child support for their only child, Jessica Denton (“Daughter”). Wife presents two points for decision. In Wife’s first point, she contends the trial court erred in dividing the Den-tons’ marital property because Husband received the bulk of the marital assets. We deny this point because the Dentons’ marital debts exceeded their assets, and Husband was allocated more of the debt than Wife. In Wife’s second point, she contends the trial court erred in setting child support at $75 per month because the record does not contain a Form 14 worksheet or an explanation of how the court calculated the child support award. While Wife’s second point has merit, the child support award must be reversed for a more fundamental reason. At the time the dissolution judgment was entered, the juvenile division of the Circuit Court of Scott County, Missouri, was exercising jurisdiction over Daughter. Since the juvenile division had exclusive original jurisdiction over proceedings involving Daughter, the trial court lacked jurisdiction to enter an award for child support in this dissolution action. Therefore, the judgment is affirmed in part, reversed in part and remanded with instructions.

I. Standard of Review

In Wife’s appeal, she challenges the division of marital property and the child support award. In this court-tried case, our review is governed by Rule 84.13(d). Hall v. Hall, 53 S.W.3d 214, 217 (Mo.App.2001). The judgment will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Marriage of Petersen, 22 S.W.3d 760, 763 (Mo.App.2000). A trial court is required to divide marital property in the exercise of its sound discretion. In re Marriage of Baker, 986 S.W.2d 950, 954 (Mo.App.1999). A trial court also possesses broad discretion in ordering child support. MacDonald v. Minton, 142 S.W.3d 247, 250 (Mo.App.2004). Thus, our task is to review the trial court’s rulings on these two issues for compliance with Murphy and for an abuse of discretion. In re Marriage of Reese, 155 S.W.3d 862, 869 (Mo.App.2005). “An abuse of discretion occurs only if the decree is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration.” In re Marriage of Woodson, 92 S.W.3d 780, 785 (Mo. banc 2003). On appeal, we defer to the trial court’s credibility determinations and view the evidence and all permissible inferences from that evidence in the light most favorable to the judgment. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991); Shields v. Shields, 59 S.W.3d 658, 660 (Mo. App.2001). We ignore all contrary evidence. Mehra, 819 S.W.2d at 353.

II. Facts and Procedural History

Husband and Wife were married in November 1985. Daughter, who was their only child, was born in May 1987. Husband and Wife separated in November 2001. Divorce proceedings were initiated in October 2002 by Wife. In her petition, she requested sole physical custody of Daughter, an award of child support and a division of the parties’ marital property. Husband filed an answer to the petition and a cross-petition for dissolution of marriage. Husband requested that the parties share joint legal and physical custody of Daughter and that the marital property and debts be justly divided.

In January 2003, the juvenile court of Scott County, Missouri, assumed jurisdiction over Daughter for truancy and for refusing to obey her parents. Initially, she was placed in foster care, and she stayed with several different families. Daughter then became pregnant.

The dissolution action was tried on October 24, 2003. By that time, Daughter had given birth. With the permission of the juvenile division, Daughter and her infant son were residing in the home of Daughter’s maternal grandmother. Wife, her brother and another child resided there as well. At trial, the court was made aware that the juvenile proceeding involving Daughter was still pending and she was under the juvenile division’s jurisdiction.

As of the trial date, both Husband and Wife were unemployed. Husband had become an employee of the United States Postal Service in 1985, but he was suspended indefinitely without pay in July 2008 after criminal charges were filed against him. Husband could not return to work for the Post Office unless he was acquitted of the charges, and he did not expect to do so. Wife’s last job had been with the Sikeston Public School system, but she was fired in March 2001. She also had criminal charges filed against her after the parties separated, which culminated in her plea of guilty to the felony of child endangerment in March or April 2003.

The Dentons had marital debts totaling approximately $107,000. Generally speaking, their marital property consisted of a house, automobiles, household goods, other personal belongings and Husband’s federal civil service pension plan. To the extent the Dentons had any opinions as to the value of their possessions, they provided the trial court with that information via their trial testimony. In some instances, the Dentons agreed on an item’s value. In other instances, the court was left with only one spouse’s input on value due to the other spouse’s lack of knowledge. On a few occasions, the Dentons’ testimony as to the value of a particular piece of property (e.g., the house) was in dispute. Frankly, the Dentons’ testimony was equivocal and imprecise in many respects; however, both parties’ testimony suffered from the same deficiencies. This freewheeling approach to valuation was utilized at trial in attempting to establish the value of Husband’s pension plan. In Wife’s case-in-chief, she called Husband as an adverse witness. Husband gave the following testimony concerning his pension:

Q. Okay. You have a retirement or pension plan through United States Postal Service; is that correct?
A. Yes, sir.
Q. And how much is that — how much is built into that at this time?
A. 21,000.
Q. And that’s built up over your 15 years of working there during the marriage?
A. Yes, sir. I’ve also had to borrow against that, too.
Q. Okay. Is it 21,000 after what you borrowed against it, or is it 21,000 minus what you borrowed against it?
A. It’s 21,000 when I had to borrow against it.

Husband testified that he borrowed the money to pay legal expenses for Wife’s son from a prior marriage. Wife’s attorney asked no further questions to ascertain when Husband borrowed against his pension plan or the total amount of such loans. Based upon the foregoing testimony, the trial court could have concluded that Husband’s pension plan had been reduced by loans to a total value of only $21,000 as of the date of trial. During Wife’s direct examination, she testified that, based on statements she had seen, the pension plan had been worth $60,000 in 2002. At the conclusion of the trial, the court left the record open so Wife could present some additional information concerning Husband’s pension plan.

Thereafter, Wife furnished the trial court with a quarterly statement from Husband’s pension plan covering the period of June 1, 2003 through September 30, 2003. According to this document, the total account value as of June 1, 2003 was $71,154. Husband had worked long enough for the Post Office to become vested in the plan. As of September 30, 2003, the value of the pension plan was $58,859. Husband had borrowed $15,000 from the plan on August 4, 2003. Because the statement only reflected activity through September 30, 2003, the document did not establish the value of the pension plan as of the trial date or address whether Husband had borrowed additional sums from the plan between September 30, 2003 and the date of trial.

The trial court entered judgment on January 23, 2004. The only provisions of the judgment pertinent to this appeal are those involving the division of marital property and the child support award. We summarize below the trial court’s rulings on these two issues.

First, as requested, the trial court divided the Dentons’ marital property and allocated the marital debts between them. The judgment did not assign any values to the marital property awarded either party. Only a few of the debts had values assigned. Viewed in a light most favorable to the judgment and disregarding any contrary evidence, the trial court divided the marital property and allocated the marital debts as follows:

1. Wife was awarded an automobile, household goods and personal property worth approximately $6,850. She was required to pay marital debts in the amount of $21,400. These debts were comprised of the $1,400 cellular telephone bill and the $20,000 loan to Wife’s mother. Thus, the amount of debt allocated to Wife exceeded the value of the marital assets awarded to her by $14,350.
2. The trial court awarded the Husband the following assets: (a) the house, which was worth $45,000; (b) one operational automobile, two nonoperational automobiles, a small travel camper, household goods and other personal property worth approximately $2,750; and (c) a $21,000 pension plan. Husband was allocated marital debts in the amount of $85,500. These debts were comprised of the $44,500 home mortgage, $20,000 in medical bills, the $16,000 loan from Husband’s mother and the $5,000 loan from Husband’s brother. Thus, the amount of debt allocated to Husband exceeded the value of the marital assets awarded to him by $16,750.

Second, the trial court awarded Wife $75 per month as child support. At first, it appeared the trial court did not intend to make any ruling as to child support. On the second page of the judgment, the court specifically noted that “the issues of custody and support of the minor child are not taken up for the reason that the Court finds that the Juvenile Court of Scott County, Missouri has previously taken jurisdiction of the child and the child is currently under the jurisdiction of the Circuit Court, Juvenile Division.” After making that pronouncement, however, the trial court placed the following provision in the decretal portion of the judgment:

B. The presumed child support amount as calculated pursuant to Section 452.340.(8) RSMo and Rule 88.01 M.R.C.P. is $75.00, and after consideration of all relevant factors pursuant to Section 452.340.(8) RSMo and Rule 88.01 M.R.C.P. said amount of $75.00 is just and appropriate that Respondent should pay to Petitioner the sum of $75.00 per month commencing November 1, 2003 and the 1st day of -each month thereafter for the support and maintenance for said minor child.

The record on appeal did not contain a Form 14 worksheet or any explanation of how the trial court calculated $75.00 as the presumptively correct amount of child support. After entry of judgment, this appeal followed.

III. Discussion and Decision

In Wife’s first point, she challenges the manner in which the trial court divided the Dentons’ marital property. The division of property in a dissolution proceeding is governed by § 452.330. “This statute requires a trial court to follow a two-step procedure: (1) the court must first set aside to each spouse his or her nonmarital property; and (2) then divide the marital property and debts in such proportions as the court deems just.” In re Marriage of Reese, 155 S.W.3d 862, 869 (Mo.App.2005); In re Marriage of Michel, 142 S.W.3d 912, 920 (Mo.App.2004). The various factors which the trial court must consider in dividing the martial property are set out in § 452.330.1. Reese, 155 S.W.3d at 869-70. The division of marital property is left to the sound discretion of the trial court, and its decision will be upheld unless an abuse of discretion is shown. Colabianchi v. Co-labianchi, 646 S.W.2d 61, 64 (Mo. banc 1983); Michel, 142 S.W.3d at 920. An appellate court will only interfere with the division “if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.” Nelson v. Nelson, 25 S.W.3d 511, 516 (Mo.App. 2000). Marital property need not be divided equally; rather, the division must be fair and equitable under the circumstances of the case. Wright v. Wright, 1 S.W.3d 52, 59 (Mo.App.1999); Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo.App.1998).

In seeking reversal of the property division, Wife argues that the trial court abused its discretion by awarding Husband “95% of the marital property.” Wife’s argument is flawed in two respects.

Wife derives the percentage of marital assets awarded to each party by assuming that she received property worth $6,850 while Husband received property worth $119,204. In computing the amount of assets awarded to Husband, however, Wife valued the pension plan at $71,154. Wife’s calculation ignores the applicable standard of review. The general rule is that “the appropriate date for valuing marital property in a dissolution proceeding is the date of trial.” Wright, 1 S.W.3d at 62; Elrod v. Elrod, 144 S.W.3d 373, 379 (Mo. App.2004). Husband and Wife bore an equal burden of presenting evidence as to the value of the pension plan. Wright, 1 5.W.3d at 57; Elrod, 144 S.W.3d at 379-80. The only witness who testified as to the value of the pension plan as of the date of trial was Husband. It is well-settled that the owner of property is competent to testify about its value in a dissolution proceeding, and the trial court was free to accept or reject Husband’s testimony concerning the plan’s value. Jarvis v. Jarvis, 131 S.W.3d 894, 899-900 (Mo.App.2004). Wife’s trial testimony only addressed the value of the plan at some unknown point in time during 2002. The plan statement furnished to the court after trial clearly refutes Wife’s claim that the plan was worth $71,154 as of the date of trial. Furthermore, the statement provides no information as to whether Husband further depleted the plan assets through additional loans after September 30 and prior to October 24, 2003. Wife could have, but did not, elicit such information from Husband at trial. Thus, viewed in a light most favorable to the judgment and ignoring contrary evidence, the trial court could have found Husband’s pension plan was only worth $21,000. That being the case, Wife was awarded marital assets worth $6,850; Husband was awarded marital assets worth $68,750.

Although even this division of marital assets seems unreasonably disparate, it is not, for a reason that highlights the second flaw in Wife’s argument. In addition to dividing marital property, § 452.330.1 also authorizes a trial court to divide the marital debts. The trial court did so here. Wife was allocated marital debts in the amount of $21,400. Wife’s indebtedness exceeded the value of the marital property she was awarded by $14,350. In contrast, Husband was allocated marital debts in the amount of $85,500. Husband’s indebtedness exceeded the value of the marital property he was awarded by $16,750. Thus, the judgment rendered both Husband and Wife insolvent, and Husband was left responsible for $2,400 more of the marital debts than Wife.

In Cope v. Cope, 805 S.W.2d 303 (Mo. App.1991), the trial court in a dissolution action awarded the husband the entire interest in his pension fund. On appeal, the wife argued that the trial court erred in not allocating a portion of the pension fund to her. Id. at 304. On appeal, this Court affirmed the trial court’s ruling because the court also allocated the bulk of the marital debts to the husband. The following observation from Cope is apropos here:

In fixing the present value of and apportioning the husband’s interest in the pension fund, the trial court faced a difficult task made more onerous by the limited amount of marital property and sizeable indebtedness of the parties. The trial court obviously determined that it should assign the payment of substantially all of the debts to the husband. In addition to the payment of general debts of $28,030, and the Escort debt of $8,260, the husband was ordered to pay his mother-in-law $15,665. Had the trial court not awarded the interest in the pension fund to the husband, as calculated above, his net award would have been a negative $32,514.

Id. at 307. In the case at bar, both Husband and Wife received negative net awards in the judgment, and Husband was required to pay $2,400 more of the marital debts than Wife. Under such trying circumstances, we believe the trial court’s division of marital property and marital debts was fair and equitable. Accordingly, Wife’s first point is denied.

In Wife’s second point, she challenges the trial court’s award of $75 per month as child support for Daughter. Wife contends the award was error because the record does not contain a Form 14 worksheet or any explanation of how the trial court calculated the child support. Certainly, there is ample authority to support Wife’s contention. See, e.g., Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997); Marquez v. Marquez, 136 S.W.3d 574, 581 (Mo.App.2004); Tracy v. Tracy, 961 S.W.2d 855, 864 (Mo.App.1998); Woolridge v. Woolridge, 915 S.W.2d 372, 381-82 (Mo. App.1996). The error involved here, however, extends beyond simply failing to furnish record support for the child support calculation. For the reasons set forth below, we conclude that the trial court lacked jurisdiction to enter any child support award in this dissolution case.

It is undisputed that, when the dissolution action was tried, Daughter was subject to the jurisdiction of the juvenile division of the Circuit Court of Scott County, Missouri. The trial court clearly was aware of this fact, as evidenced by the initial statement in the judgment that the issues of custody and child support would not be adjudicated due to the pending juvenile proceeding. After so stating, the trial court inexplicably deviated from this course of action by setting child support at $75 per month and making the award retroactive to November 1, 2003. In doing so, the trial court misapplied the law.

Section 211.031.1 states, in pertinent part, as follows:

Except as otherwise provided in this chapter, the juvenile court ... shall have exclusive original jurisdiction in proceedings: ... (2) Involving any child who may be a resident of or found within the county and who is alleged to be in need of care and treatment because: (a) The child while subject to compulsory school attendance is repeatedly and without justification absent from school; or (b) The child disobeys the reasonable and lawful directions of his or her parents or other custodian and is beyond their control....

The juvenile division of the Circuit Court of Scott County, Missouri, assumed jurisdiction over Daughter in January 2003 on these two grounds.

Once a juvenile court assumes jurisdiction over a child pursuant to § 211.031, the court is authorized to order a parent to contribute to the child’s support. This authority is derived from § 211.241, which states, in pertinent part, as follows:

1. When the juvenile court finds a child to be within the purview of applicable provisions of section 211.031 it may in the same or subsequent proceedings, either on its own motion or upon the application of any person, institution or agency having the custody of such child, proceed to inquire into the ability of the parent of the child to support it or to contribute to its support. If the parent does not voluntarily appear for the proceeding, he shall be summoned in the same manner as in civil cases and the summons in the case may issue to any county of the state.
2. If the court finds that the parent is able to support the child or to contribute to its support, the court may enter an order requiring the parent to support the child or to contribute to its support and to pay the costs of collecting the judgment.

This remedial statute “permits a court to order a parent to support his or her child if the parent has the financial resources to provide the support.” In Interest of S.E.S., 845 S.W.2d 140, 142 (Mo.App. 1993); see also Matter of Trapp, 593 S.W.2d 193, 201 (Mo. banc 1980) (this statute authorizes a juvenile court to inquire into a parent’s ability to make child support payments either in the initial custody proceeding or in subsequent proceedings).

In Miller v. Russell, 593 S.W.2d 598, 602 (Mo.App.1979), the juvenile division of the circuit court assumed jurisdiction over an abused child. The juvenile court issued an order requiring Miller, the putative father of the child, to appear before the court so it could determine, pursuant to the authority granted by § 211.241, Miller’s financial responsibility to support the child. Miller sought a writ of prohibition, contending that the court lacked the authority to determine paternity of the child in the juvenile proceeding. Id. at 600. Miller argued that paternity could only be established in a separate declaratory judgment proceeding. The Western District of this Court rejected Miller’s argument because, once the juvenile division assumed jurisdiction over the child, the issues of child support — as well as the related issue of paternity- — had to be exclusively adjudicated in that proceeding:

In the subject case, initial jurisdiction of the child was acquired because the child was found to be in need of the protective services of the court.... This jurisdiction under the juvenile code is both original and exclusive. Section 211.031. Once the court’s juvenile division has assumed jurisdiction over the child, Section 211.241 authorizes the court to summon the child’s parent for inquiry as to financial resources and to order appropriate contribution to the child’s support. Of necessity, this function may only be performed if the court by implication is also authorized under the statute to identify as a parent the person against whom the order for support is to be entered and enforced.
It must, of course, be conceded that a declaratory judgment action could be pursued for the purpose of adjudicating the issue of paternity which respondent judge now intends to resolve.... At best, the jurisdiction of the circuit court in such a declaratory judgment suit, if filed, would be concurrent. Here, the juvenile division first validly assumed jurisdiction with respect to the child and thereafter proceeds to a conclusion of the matter to the exclusion of any other court of concurrent jurisdiction.

Id. at 602-03.

In so holding, the Western District relied upon State ex rel. McCarty v. Kimber-lin, 508 S.W.2d 196 (Mo.App.1974). McCarty involved the issue of whether a trial court had the jurisdiction to adjudicate the issue of child custody in a habeas corpus proceeding after the juvenile division of the circuit court had previously decided that issue in a proceeding brought pursuant to § 211.031. The appellate court held that, although several courts initially may have concurrent jurisdiction to decide a particular issue (such as custody) involving a child, “the juvenile court having first validly assumed and found its jurisdiction ... may proceed to a completion of the matter, with continuing jurisdiction (§ 211.041), to the exclusion of any other court of concurrent jurisdiction.” Id. at 199.

The results in Miller and McCarty were consistent with our Supreme Court’s earlier decision in State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo. banc 1967). In Dubinsky, Shirley Dubinsky had been awarded custody of her minor daughter in a divorce proceeding. Thereafter, a petition was filed in juvenile court alleging that the child was without proper care, custody and treatment. Dubinsky sought prohibition in the Supreme Court to prevent the juvenile court from exercising jurisdiction. She argued that, upon entry of the divorce decree, her daughter became a ward of the circuit court that adjudicated the divorce action; therefore, that court alone had continuing, exclusive jurisdiction over the child. Noting that “it is almost inevitable that conflicts of jurisdiction may occasionally develop[,]” the Supreme Court resolved the conflict by holding that “in a case properly coming within the provisions of § 211.031 the jurisdiction of the juvenile court supersedes and is paramount to the incidental jurisdiction which a divorce court may have over the custody of the child of the parties.” Id. at 180-81. After reviewing numerous provisions of Chapter 211, the Court was convinced that “the general assembly, in enacting the new juvenile act of 1957 and certain predecessor laws of a similar nature, recognized that other laws and procedures relating to the care and custody of children were not entirely sufficient and therefore intended that the juvenile court be given paramount jurisdiction over other courts in matters relating to the care and custody of children coming within the provisions of Chapter 211.” Id. at 182.

In the case at bar, it is undisputed that Daughter was subject to the jurisdiction of the juvenile division when the Dentons’ dissolution action was tried. That being the case, the juvenile division’s jurisdiction was paramount and superseded the jurisdiction of any other court to decide the issues of Daughter’s custody and support. See Ogle v. Blankenship, 113 S.W.3d 290, 291-92 (Mo.App.2003).

For the reasons stated above, the trial court did not have jurisdiction to adjudicate the issues of child custody, visitation and child support. Accordingly, the pronouncements in the judgment concerning these three issues, being null and void, are reversed. See Reed v. Reed, 62 S.W.3d 708, 715 (Mo.App.2001). The case is remanded to the trial court with instructions to vacate those portions of the judgment addressing the issues of child custody, visitation and child support. In all other respects, the judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J., Concur.

      . All references to rules are to the Missouri Court Rules (2005).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . The charges were filed in January 2003. Husband was charged with endangering the welfare of a child, receiving stolen property and possession of a controlled substance with intent to distribute.

      . These debts included a mortgage balance of $44,500; a cellular telephone bill of $1,400; a loan from Wife’s mother in the amount of $20,000; medical bills in the amount of $20,000; a loan from Husband’s mother in the amount of $16,000; and a loan from Husband’s brother in the amount of $5,000.

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

      . The first step of this process was irrelevant in the case at bar because neither Husband nor Wife had any nonmarital property.

      . In addition to the child support award, the decretal portion of the judgment also contains what appears to be a provisional ruling on the issues of child custody and visitation. This provisional ruling was to take effect only after the termination of the juvenile division’s jurisdiction over Daughter. This attempt to adjudicate the issues of custody and visitation, however, was a nullity; the trial court’s jurisdiction to do so had been pre-empted by the existence of the pending juvenile proceeding involving Daughter. See Matter of J.F.K., 853 S.W.2d 932, 935 (Mo. banc 1993).


author: JOHN E. PARRISH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Lee HAYES, Defendant-Appellant.
    No. 26604.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 31, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JOHN E. PARRISH, Judge.

Donald Lee Hayes (defendant) was convicted, following a jury trial, of statutory rape in the first degree (Count I), § 566.032, and statutory sodomy (Count II), § 566.062. This court affirms.

Defendant’s arguments on appeal include that the evidence was not sufficient to prove the offenses of which he was found guilty.

On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980). In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976); State v. Churn, 701 S.W.2d 578, 580 (Mo.App.1985).

State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). See also State v. Xia, 60 S.W.3d 28, 30 (Mo.App.2001).

At the time of trial S.H. was 14 years old. She was in the eighth grade. She lived with a foster family. Before being placed with a foster family, she had lived with her father after her mother left the home. Defendant is S.H.’s uncle. When S.H. was in the second and third grades, defendant lived with S.H.’s grandmother at Steelville.

S.H. described to the court and jury acts committed by defendant when she was at her grandmother’s residence. S.H. used the words “china” and “hot dog,” respectively, to describe a female vagina and a male penis. In a videotaped statement, S.H. told of being with defendant in defendant’s bedroom at her grandmother’s residence. She said defendant had her unbutton her pants, take them off, and he on the bed; that he had sexual intercourse with her. S.H. said it hurt.

On another visit, defendant and S.H. were in the kitchen. Defendant told S.H. to touch his “hot dog” with her mouth. Defendant told her to suck his penis. She did what defendant told her to do. S.H. told of other incidents when he would touch her vagina and have her touch his penis.

S.H. told her foster mother that she had been molested. Her foster mother reported what she had been told to a social worker who referred S.H. to the Child Advocacy Center. S.H. was interviewed by a Child Advocacy Center worker. The videotaped statement was the interview at the Child Advocacy Center. It was admitted in evidence and shown to the jury.

Defendant raises six points on appeal. Point I is directed to the venire from which the jury was selected. Points II, III and TV are directed to evidence issues. Point V is directed to the closing argument by the state. Point VI challenges the sufficiency of the state’s evidence.

Point I-Venire

Trial of this case took place July 23, 2004. On July 21, voir dire was conducted in another Dent County ease. After a jury was selected for the case that was to be tried that date, the panel members who were not selected for that case and who had not been stricken for cause or hardship were directed to return the next day. On July 22, voir dire was conducted for a case set for trial that day. The defendant in it was Robert Hayes, brother of this defendant. The prosecuting attorney stated that the case involved a girl about 13 years old named S.H.; that when she was about 11 years old, she had contact with her uncle, Robert Hayes, the defendant in the case that was for trial that day. The panel was told, “The evidence is going to be that the time when she was alone with him, on more than one occasion, he had sexual intercourse with her and he had deviate sexual intercourse with her.” The panel was asked if any panel member knew those persons or had heard anything about that case. One member of the panel responded that she knew S.H. At the close of voir dire, strikes were made for cause. During the time for making peremptory strikes, the defendant in that case, Robert Hayes, pleaded guilty to the charges for which he was scheduled to stand trial. The guilty plea hearing was conducted outside the presence of the prospective jurors.

After the panel members returned to the courtroom, the trial court advised them that there had been “a resolution in [the] case.” The panel members were told there would be another case the following day; that those who were not excused would be needed the following morning. The names of those panel members who were excused and who would not be required to return were read. The others were told to return the following day.

Following the discharge of the venire panel, the case that is the subject of this appeal was called for the purpose of addressing “particular objections” defense counsel wished to raise. The attorney who was representing this defendant also represented the defendant in the ease that had been resolved. He told the trial court:

The defense objects to the use of this panel as it presently is constituted because we believe that the case against [defendant] is contaminated by the voir dire of the case involving his brother, Robert Hayes. The alleged victims in each case were similar. The alleged transgressions in each case were similar. [The prosecuting attorney], in briefing the voir dire with regard to subject matter of this case, obviously indicated who the alleged victim was, and that was certainly proper. But the problem from the defense standpoint is, now that the information with regard to our previous trial has taken place and suddenly the defendant has disappeared, has the potential to contaminate the jury with regard to the brother. It is true that the Court did not declare to the jury what the resolution was, but I think the implication is certainly there and strong that it was resolved by some kind of resolution with regard to being unfavorable to the defendant. In any case, we believe that this panel is prejudiced. We’ve offered the Court to select another panel from either another jurisdiction to bring them in, or pass til [sic] — request a continuance until after this panel — or at least, actually defense originally hoped to pass it til [sic] the new panel convenes the first of October. If that’s not possible, we believe that it would certainly be appropriate to continue it, say, thirty days to allow these people to, frankly, forget what the subject matter of this particular case was and who the name of the particular defendant was. We believe that trying this case with almost the same names and two separate people so close, that that certainly contaminates the defense’s ability to have a fair trial without some implication from the previous case.

Following remarks by the prosecuting attorney, the trial judge stated, for purposes of subsequent appellate review, the process that had been followed.

We commenced having a trial on July 21st with another unrelated manner [sic], and a jury was picked and a jury trial was conducted on that particular matter, and the balance of the pool from that that was not chosen, and we did strike off all those that were struck for cause in that particular case and by agreement none of them were allowed to return, in addition, some who had some hardship, they were not allowed to return at all. The balance of that panel from the first trial was then summonsed back for today’s date for a trial in State v. Robert Hayes, and that cause, after we got through the process of making your preemptory [sic] strikes was resolved. The next trial, and the process that the Court anticipated that the record will show, all those that were struck for cause in the voir dire in State v. Robert Hayes and those excused because of hardship were not allowed to [sic] back tomorrow’s date on the 23rd. What will remain will be the balance of the pool and that is the process this Court has taken up because it has such a large volume of jury trials that are taking place of late, and as a consequence, we try several in a row. It is the Court’s view that the objection that [defense counsel] makes might have some validity. However, the only way that that can be proven up is in a voir dire examination tomorrow. If the Court feels that as a consequence of some examination that either counsel does that [sic] the pool is tainted in some way, the Court would then again entertain the request to strike the entire venire panel.

The next morning, prior to commencement of trial in this case, defendant’s attorney made the following request.

Your Honor, first I would like to renew our objection to the use of this venire panel on the basis of the fact that the discussions yesterday with respect to the case, the victim in the case, as well as the names of the — name and recognition of the defendant at that time, we believe prejudices the likelihood of a fair trial with regard to this defendant since now all of a sudden that case was resolved.

The trial court denied defendant’s request noting, “[T]he only way we’re going to know if yesterday’s proceedings had any impact on the remaining panel will be to cover that issue in voir dire. So your request is denied.” Trial commenced with voir dire.

Point I argues that the trial court erred; that it abused its discretion in denying defendant’s request to quash the venire panel. Defendant contends he was denied trial by a fair and impartial jury because the “same venire panel had gone through voir dire the day before in State v. Robert Hayes and were informed that [defendant’s] brother [,] Robert, was on trial for statutory rape and statutory sodomy of his niece, [S.H.], the same charges against the same victim [defendant] was facing, and the venire panel knew that Robert’s case had been ‘resolved’ after voir dire.”

The trial court is afforded wide discretion in ruling on a motion to quash the entire jury panel. State v. Everage, 124 S.W.3d 11, 13 (Mo.App.2004). However, that discretion is not unfettered. In making its determination, the court must consider the defendant’s right to a trial before a fair and impartial jury. See id. (stating that, when ruling on a motion to quash the entire venire, a court must consider whether the entire jury panel has been tainted so as to deprive the defendant of a fair trial). Thus, if the jury panel has been prejudiced against a criminal defendant such that a fair and impartial jury cannot be impaneled, the court must quash the entire panel and begin anew. The defendant bears the burden of demonstrating that the trial court erred in denying his motion to quash the jury panel. State v. Sprinkle, 122 S.W.3d 652, 669 (Mo.App.2003).

State v. Muldrow, 145 S.W.3d 471, 473 (Mo.App.2004). The trial court suggested to defense counsel that whether the jury panel had been tainted so as to require its discharge could be addressed on voir dire; that the trial court had nothing before it that required the granting of defendant’s requests to discharge the panel at the times those requests were made.

As the trial court observed, “A defendant has a right, through the process of voir dire, to discover bias or prejudice on the part of prospective jurors.” State v. Nicklasson, 967 S.W.2d 596, 608 (Mo. banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998). “Where [a defendant] claims the trial court abused its discretion, [the defendant] has the burden of showing ‘a real probability that he was thereby prejudiced.’” Id, quoting State v. Gray, 887 S.W.2d [369] at 382 [(Mo.banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995) ].

Near the beginning of voir dire, the trial court stated to the venire panel:

I believe all but maybe one of you were present here yesterday, and the Court proceeded with a case, and we reached a resolution in that matter.
Now, I don’t want there to be any misunderstanding in this regard, and I know counsel will cover some of this issue, particularly [defendant’s trial attorney]. The defendant in this case, Mr. Donald Hayes, is related to the defendant in the case yesterday. Is [sic] there any of you on the panel who, if knowing that they are related, and that these are not the same cases as we dealt with yesterday, is [sic] there any of you who are going to hold that matter, whatever transpired therein, against this defendant, Donald Hayes? If so, raise your hand.
I see none.
Is [sic] there any of you who does not understand that those are totally unrelated matters, and that this is a separate case, and that you are not bound to listen to the facts in this case and decide this case based solely on the facts that are presented to you in this case? If so, raise your hand.
I see no hands.

The attorneys then commenced their inquiry. The prosecuting attorney inquired if any member of the panel had heard anything about the case and if any were acquainted with defendant or with S.H. There were no responses.

Defendant’s trial attorney asked no questions directed to the panel’s participation in voir dire in the previous two cases, including the one in which Robert Hayes was defendant and S.H. was the victim. His inquiry demonstrated no error by the trial court in denying defendant’s request to quash the panel. No factual basis for the claimed error appears in the voir dire. To the contrary, the trial court’s inquiry regarding any effect of the prior day’s proceedings revealed nothing that would support defendant’s claim that he could not receive a fair trial before a jury selected from the panel that was assembled.

Defendant acknowledges that no case was found with facts akin to those in this case regarding jury selection. Two cases cited by defendant that were reversed because of circumstances involving juries warrant comment, State v. Baumruk, 85 S.W.3d 644 (Mo. banc 2002), and State v. Lynch, 816 S.W.2d 692 (Mo.App.1991).

Baumruk involved a murder charge directed to a shooting that occurred at the St. Louis County Courthouse, the same location where the murder case was tried. The shooting that resulted in the death of the person who was the subject of the murder trial occurred during a dissolution of marriage case in which at least three persons, in addition to the victim for whom defendant was on trial for murder, were shot by that defendant. The courthouse shooting took place on the same premises where the murder trial was held. The court, in holding it had been error to deny a request for change of venue, observed, “The verdict must be based on the evidence that is developed at trial regardless of the heinousness of the crime or the apparent guilt of the offender. [Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) ]. The association between the jurors and crime scene in this case created a prejudicial environment, which undermines the basic guarantee of trial by jury.” 85 S.W.3d at 650.

The facts in this case regarding the jury that decided the case are not similar to those in Baumruk. It was the location of the crime that precluded the jury in Baumruk from being “a panel of impartial ‘indifferent’ jurors.” Id. In Baumruk, the concern was that the jurors would perceive themselves placed “in the shoes of the victims”; that they “arrived at the courthouse and entered through metal detectors that had been installed as a direct result of Baumruk’s shooting spree. Jurors walked the same halls, used the same elevators, stairwells, and escalators that were used by escaping victims. The trial was held in a courtroom nearly identical to the courtroom that was the scene of the crime. The jurors, in effect, sat at the murder scene while determining guilt or innocence and the penalty to be imposed.” Id. (Footnotes omitted.) The environment of the trial in this case does not pose a question regarding “the impartiality of the adjudicator” as proclaimed in Baumruk. See Id. Baumruk is of no consequence to this appeal.

Lynch is of no assistance to defendant. To the contrary, the fault found in the trial court’s conduct in Lynch was addressed by the trial court in this case. In Lynch, a member of the jury panel was reported to have made a statement about the case to other jurors at a café during lunch break. The comment was that “these proceedings are taking too long, we could have already convicted the guy and gone home by now.” 816 S.W.2d at 693. Defense counsel in the case moved for mistrial. It was not granted nor was inquiry of the jury panel conducted regarding the alleged statement. Trial proceeded. On appeal, the conviction was reversed, the court stating that the trial court erred in not conducting an independent investigation to determine if bias existed among the jury. The court noted, “[I]n general, subject to limitations, it is recognized ‘the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.’ ” 816 S.W.2d at 695, quoting Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

Voir dire was conducted in this case the morning of trial. It afforded defendant the opportunity to inquire for the purpose of proving bias. No bias was shown. Additionally, Instruction No. 1, patterned after MAI-CR3rd 302.01, admonished the jury that it was their duty to determine the facts “only from the evidence and the reasonable inferences to be drawn from the evidence.” “When a jury receives proper and adequate instructions, it is presumed the jury will properly follow the instructions as given.” State v. Payton, 895 S.W.2d 283, 285 (Mo.App.1995). Point I is denied.

Point VI — Sufficiency of the Evidence

Point VI alleges that the trial court erred in denying defendant’s Motions for Judgment of Acquittal on Counts I and II and in sentencing him for the offenses alleged in those counts because the evidence was insufficient to prove either charge occurred. Defendant argues that the evidence was not sufficient because “the only evidence supporting [defendant’s] convictions was [S.H.’s] un-sworn, out-of-court statement, which was not corroborated by any other evidence.”

S.H. testified at trial. The videotaped statement made at a Child Advocacy Center was also viewed by the jury. In her videotaped statement, S.H. said when she was in the second or third grade defendant put his penis (his “hot dog”) into her vagina (her “china”). She said this took place in defendant’s bedroom at S.H.’s grandmother’s house. S.H. told the interviewer that defendant told her to unbutton her pants, take them off, and lay on the bed. She said it hurt.

At trial, S.H. told about a time when she was in defendant’s bedroom with him at her grandmother’s house. She said defendant did something she did not like; that he touched her. She said he touched her “china” with his hand. She was then asked the following questions and gave the following answers:

Q. Did he tell you to do anything with your clothes?
A. No.
Q. [S.H.], do you remember being interviewed by a Child Advocacy Center worker? Do you remember Dina?
A. Yes.
Q. Do you remember telling her that he told you to unzip and take off your pants?
A. I don’t remember.

S.H. was asked if she remembered being in the kitchen of her grandmother’s home. She answered, ‘Tes.” She was asked if she was there with defendant. S.H. said she was. She said defendant touched her vagina; that he had her touch his penis. She described what he had her do with her hand on his penis; that he had her “[g]o up and down.” She said a white substance came out of his penis; that it was on her hand.

S.H. was asked if defendant had her touch him with anything besides her hand. She answered, “No.” S.H. was then asked the following questions and gave the following answers:

Q. [S.H.], do you remember being at the Child Advocacy Center and telling them what he had you touch him with?
A. My mouth.
Q. Did he tell you to do something with your mouth?
A. Put it on him.
Q. What did he tell you to do after you put your mouth on his hot dog?
A. Go up and down with it.

Defendant argues that S.H.’s testimony at trial recanted the videotaped statement made at the Child Advocacy Center. He says she denied the events she described on the videotape; that, therefore, there was not sufficient evidence for him to be convicted because “the only evidence ... was [S.H.’s] unsworn, out-of-court statement, which was not corroborated by any other evidence.”

Defendant relies on State v. Pierce, 906 S.W.2d 729 (Mo.App.1995), as authority for his claim of error in Point VI. The criminal charge in Pierce was statutory rape. Pierce was accused of having sexual intercourse with a female to whom he was not married and who was then 14 years old. A hotline call was made to the Division of Family Services (DFS) regarding Pierce’s girlfriend’s concern about what to do to prevent Pierce from getting their son, Sam, in the event she left Pierce. The call included information concerning a relationship between Pierce and the 14r-year-old.

A DFS investigator contacted the 14-year-old. The investigator stated that the girl told her about sexual intercourse between her and Pierce. A videotaped interview was attempted but the audio did not work; thus, there was no sound recording of the statement by the girl. A hospital S.A.F.E. examination of the girl was conducted within 72 hours from the time the investigator said the girl stated she had last had sexual intercourse with Pierce — a time period when evidence of sperm could be discovered. The results of the examination were not admitted in evidence.

The 14-year-old testified that the investigator’s visit to her was because of an allegation by Pierce’s girlfriend that the girl and Pierce had “slept together.” She stated that the investigator and a deputy sheriff who accompanied the investigator told her that if she told them what they wanted to hear, they would let her go and would do nothing to her. She said she then admitted having sexual intercourse “because ‘it was what they wanted to hear’ and because she wanted to go home and be left alone.” Pierce, 906 S.W.2d at 732. She claimed that her statements to the investigator about having had sexual intercourse with Pierce were lies.

Pierce addressed the issue, “Where the only substantive evidence against the defendant in a statutory rape case is an out-of-court statement made by the prosecu-trix to authorities, but prior to and at trial, the prosecutrix repeatedly recants her statement that sex occurred, may the conviction be upheld without corroborating evidence?” 906 S.W.2d at 733. Pierce notes that § 491.074, RSMo 1994, provided that prior inconsistent statements of any witness testifying at trial of an offense under certain chapters, including chapter 566, “shall be received as substantive evidence and the party offering the prior inconsistent statement may argue the truth of such statement.” Id. at 733 (emphasis in original). Pierce declared that § 491.074 settled the question of the purpose for which an inconsistent statement was admissible, the question of the necessity of corroboration in rape cases in which an out-of-court statement is recanted by a prosecutrix’s testimony. Pierce held that, under the unique factual situation in that case, corroboration of the prosecutrix’s out-of-court statement was necessary; that there was not corroborating evidence; and, therefore, the conviction in Pierce would be reversed. Id. at 735.

Defendant argues that his situation is like that in Pierce; that based on the testimony of S.H. at trial, the trial court erred in not granting his motions for acquittal as to both Counts I and II. In Pierce, the prosecutrix continually denied that rape occurred. She stated that she had not told the truth when she told the DFS investigator that she had sexual intercourse with Pierce. Pierce involved circumstances where the prosecutrix had “prior to and at trial ... repeatedly recant[ed] her statement that sex occurred.” Id. at 733.

S.H. did not recant, either at trial or before trial, her statements that described sexual intercourse or sodomy, i.e., she did not withdraw a prior statement nor make a confession of error with respect to an earlier statement. Rather, there were inconsistencies in statements she made at trial compared to the videotaped statement she had given at the Child Advocacy Center. S.H. was not asked if her earlier statement was untrue nor did she state it was untrue. She was asked about being in defendant’s bedroom with him. She said defendant touched her vagina with his hand. She stated he did not tell her to do anything with her clothes. However, when asked if she remembered being interviewed by the Child Advocacy Center worker and if she remembered telling her defendant told her to unzip and take off her pants, she stated she remembered being interviewed by the Child Advocacy Center worker but said she did not remember if she told the worker that defendant told her to unzip and take off her pants. She stated in her videotaped statement that defendant had her unbutton her pants and take them off and he on the bed; that he had sexual intercourse with her; that it hurt.

During S.H.’s direct testimony at trial she was asked if defendant had her touch him with anything besides his hand in the kitchen of her grandmother’s house. She said, “No.” She was then asked if she remembered being at the Child Advocacy Center and telling them what he had her touch him with. She answered, “My mouth.” She was then asked the following questions and gave the following answers:

Q. Did he tell you to do something with your mouth?
A. Put it on him.
Q. What did he tell you to do after you put your mouth on his hot dog?
A. Go up and down with it.

The jury heard S.H.’s testimony. Unlike in Pierce, they also saw and heard the videotaped recording of the statement she gave at the Child Advocacy Center. Likewise, unlike in Pierce, S.H. at no time stated that statements she made in the videotaped interview were false or that they were made in error. S.H. did not withdraw or repudiate her prior statements although there were inconsistencies between those statements and her trial testimony.

Pierce identified dangers in accepting out-of-court statements as substantive evidence. In the facts in Pierce, there was an absence of adequate safeguards to assure reliability. For those reasons, Pierce held the judgment of conviction in that case fell short of affording due process. Id. at 735. The issues identified in Pierce as circumstances that cast doubt on the reliability of the out-of-court statements given by the prosecutrix in that case were:

[I.] One reason for this is the lack of trustworthiness in the atmosphere where the prior out-of-court statement was procured. A less than impartial questioner could, hypothetically, maneuver the witness into giving an inaccurate statement. See 4 J. Weinstein and M. Burger, Weinstein on Evidence, § 801(d)(l)(A)[01], at 801-807 (1985).
[II.] Additionally, the jury may draw unreliable inferences from its mistrust of the declarant’s present demeanor. The demeanor may have been equally poor at the time she made the prior statement, but that demeanor is hidden from the critical eyes of the present trier of facts. S. Goldman, Guilt By Intuition: The Insufficiency of Prior Inconsistent Statements To Convict, 65 N.C.L.Rev. 1, 11 (1986-87). A witness’ unsatisfactory trial demeanor should not provide a sufficient basis to permit conviction solely on that witness’ prior unobserved statement. See People v. Casillas, 60 Cal. App.2d 785, 141 P.2d 768, 772 (CalApp. 1943).
[III.] Another danger is that people tend to believe the prior statements rather than the in-court repudiation. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

Id. 735-36. Pierce further suggested that when a prior inconsistent statement is accepted by a fact-finder, “the truth of which the declarant denies at trial,” the decision of a finder of fact “often is based on guess or intuition, not credible facts.” Id. at 736.

Here, unlike in Pierce, the questions and answers that produced S.H.’s out-of-court statement were seen and evaluated by the jury. The questioner was a Child Advocacy Center worker. The jury had the same opportunity to assess whether S.H.’s statements were maneuvered so as to result in “an inaccurate statement” as it did to assess whether answers given to attorneys’ questions at trial were maneuvered so as to result in inaccuracies. The jury had the opportunity to assess the partiality or impartiality of the questioner. Unlike in Pierce, danger [I] is not a factor.

The issue of demeanor, danger [II] in Pierce, is not the factor in this case that it was in Pierce. The jury in this case saw and heard S.H.’s testimony at trial. It also saw and heard the videotaped statement made at the Child Advocacy Center. The jury had the opportunity to compare the witness’ trial demeanor with her demeanor when she gave the out-of-court videotaped statement.

Danger [III] in Pierce was the assessment that people would tend to believe prior statements rather than in-eourt repudiations. In Pierce there were straightforward recantations of the inconsistent statement on which the conviction was based, recantations made before trial and at trial. The prosecutrix in Pierce stated that her earlier statement was false. Here, S.H. never stated any prior statement she made was false, nor was she asked if particular statements were false. In Pierce there were recantations. Here there were not.

Finally, Pierce suggested a danger was posed when a fact-finder accepted an out-of-court statement “the truth of which the declarant denies at trial.” That situation existed in Pierce. It did not exist in this case. As heretofore noted, S.H. neither was asked if any of the prior statements on the videotape the jury saw were false, nor did she state they were false.

This case is, on its facts, distinguishable from Pierce. The videotaped statement the jury saw and heard was received as substantive evidence. § 491.074. The jury was afforded the opportunity to assess both the statements made during the videotaped interview and the statements S.H. made in her trial testimony and to evaluate the questioning process by which answers to questions were elicited. On the basis of the record before this court, under the facts of this case, this court finds no due process violation of defendant’s right to a fair trial. Point VI is denied.

Points II, III and IV — Evidence Issues

Defendant contends there was error in the trial court allowing the state to make references so a “second victim,” S.H.’s sister R.H., during the course of the trial (Point II); in allowing the prosecuting attorney to elicit testimony from a witness regarding R.H. because R.H. was available to testify, thereby denying defendant the opportunity to confront R.H. (Point III); and, in permitting the prosecuting attorney to elicit testimony of a witness regarding the credibility of the victim (Point IV). Defendant tacitly admits he failed to preserve the issues he now claims were errors for appellate review in that, in each instance, he alleges the trial court “plainly abused its discretion.”

“In order to preserve an eviden-tiary issue in a jury trial for appellate review, an objection must be made when the evidence is sought to be introduced; that objection must be asserted as error in a motion for new trial; and the issue must be presented in the appeal brief.” State v. Guidorzi, 895 S.W.2d 225, 228 (Mo.App. 1995). That did not occur in this case. Thus, defendant seeks plain error review as permitted by Rule 30.20.

Defendant is not, however, as a matter of right entitled to plain error review. “The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review.” State v. White, 92 S.W.3d 183, 189 (Mo.App.2002). The decision of whether to grant plain error review is left to the appellate court. State v. Campbell, 122 S.W.3d 736, 740 (Mo.App.2004). In considering claims of plain error, this court first looks to see if the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If this court found substantial grounds to believe manifest injustice or a miscarriage of justice occurred, it would determine whether it actually did occur. Id.

The record on appeal in this case includes a 156-page transcript and a 77-page supplemental transcript of voir dire proceedings in previous cases. (The supplemental transcript was provided to permit this court to address Point I.) It includes a legal file and State’s Exhibit No. 1, the videotape addressed in Point VI. A review of that record does not cause this court to believe the complaints defendant now makes in Points II, III, and IV resulted in manifest injustice or miscarriage of justice. Defendant’s requests for plain error review in Points II, III, and IV are denied.

Point V — Closing Statement

Point V argues that the trial court committed plain error in failing to sua sponte declare a mistrial during the course of the state’s closing argument. The prosecuting attorney referred to the safety of other children and to “damage to the victim, and the potential damage to other victims in determining what punishment ... should be.” Defendant asks this court to grant review for plain error and to reverse defendant’s convictions because the argument led “the jury to convict [defendant] and assess punishment for irrelevant reasons.”

Defendant did not object at trial to the parts of the state’s argument about which he now complains. The state argues that under these circumstances, plain error review is inappropriate; that “[t]rial judges are not expected to assist counsel in trying cases, and trial judges should act sua sponte only in exceptional circumstances.”

This court stated in State v. Vaughn, 32 S.W.3d 798, 800 (Mo.App.2000), with respect to a claim of plain error directed to closing argument of the state, “Fatal to Appellant’s argument is the absence in the record of a contemporaneous objection by defense counsel at the time of the prosecutor’s purported improper closing arguments. ‘[P]lain error will seldom be found in unobjected closing argument,’ ” quoting State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992). Vaughn stated, “ ‘Because trial strategy looms as an important consideration in any trial, assertions of plain error concerning matters contained in closing argument are generally denied without explanation.’ ” Id., quoting State v. Weicht, 23 S.W.3d 922, 930 (Mo.App. 2000).

This court explained, in State v. Wright, 934 S.W.2d 575 (Mo.App.1996):

In State v. Silvey, 894 S.W.2d 662 (Mo.banc 1995), the Supreme Court of Missouri discussed requests for plain error review directed to events occurring during closing argument. In declining to grant plain error review, the court said:
Plain error review “should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.” State v. McMillin, 783 S.W.2d 82, 98 (Mo.banc 1990) (quoting, State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983)). Relief should rarely be granted on assertions of plain error as to closing argument because, “in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo.banc 1988).

Id. at 584-85.

In Wright, consistent with the action taken in Silvey, this court declined to grant plain error review regarding statements in closing argument to which no objections were made. See also State v. Markham, 63 S.W.3d 701, 709 (Mo.App. 2002); State v. Motley, 56 S.W.3d 482, 485 (Mo.App.2001); State v. Nunley, 992 S.W.2d 892, 895 (Mo.App.1999).

Consistent with Silvey and its progeny, this court declines defendant’s request for plain error review of statements made in closing argument to which no objections were made. Point V is denied. The judgment is affirmed.

PREWITT, P.J., and RAHMEYER, J., concur.

      . The offenses charged are alleged to have occurred "between January 1, 1998, and December 31, 2000.” The language in §§ 566.032 and 566.062, RSMo Cum.Supp. 1997, is the same as the language in the RSMo 2000 revision of those statutes. References to statutes in this opinion will be to RSMo 2000 unless otherwise stated.

      . The words “trial of a criminal offense” appear in RSMo 2000 in lieu of the specific chapters referred to in the 1994 revision. The change is of no consequence in this case.

      . The definition of "recant” is: "1: to withdraw or repudiate (a statement or belief) formally and publically: RENOUNCE 2: REVOKE: to make an open confession of error.” Merriam-Webster’s Collegiate Dictionary, Eleventh Ed. (2003).