author: McANULTY, Judge.

text:
    LABORATORY CORPORATION OF AMERICA HOLDINGS, Appellant, v. Hon. Robbie RUDOLPH, Not Individually, But As Secretary, Commonwealth of Kentucky, Finance and Administration Cabinet; Commonwealth of Kentucky, Finance and Administration Cabinet; Commonwealth of Kentucky, Cabinet for Health and Family Services, As Successor to the Cabinet for Families and Children; and Paternity Testing Corporation, Appellees.
    No. 2004-CA-001025-MR.
    Court of Appeals of Kentucky.
    July 29, 2005.
    Rehearing Denied Jan. 11, 2006.

      Bruce F. Clark, Mark W. Leach, Stites & Harbison, PLLC, Louisville, KY, for Appellant.
    Nora K. McCormick, Assistant General Counsel of Cabinet for Health and Family Services Frankfort, KY, for Appellee, Cabinet for Health and Family Services.
    Gregory D. Stumbo Attorney General of Kentucky, Raymond F. DeBolt, Jr., Assistant Attorney General Frankfort, KY, for Appellees, Robbie Rudolph and Finance and Administration Cabinet.
    Donald P. Cetrulo, Lexington, KY, for Appellee, Paternity Testing Corporation.
    Before GUIDUGLI, McANULTY, and MINTON, Judges.
   OPINION

McANULTY, Judge.

In this case, Laboratory Corporation of America (LabCorp) seeks review under the Kentucky Model Procurement Code (KMPC) of the former Cabinet for Families and Children’s decision to award the contract for statewide genetic testing services for the 2004 fiscal year to Paternity Testing Corporation (PTC). As characterized by LabCorp, this case is about the arbitrary and capricious award to a non-responsive, non-responsible bidder that sought to cover its inexperience by misrepresenting its qualifications in its bid. Lab-Corp presented evidence in support of its claim in a bid protest before the state agency charged with deciding such protests; however, the agency denied any relief under the protest. Upon review, the trial court concluded that LabCorp did not have standing to seek judicial review because it had not alleged fraud, collusion, dishonesty or political patronage. While we disagree with the trial court’s conclusion as to standing, we nonetheless affirm the result for reasons discussed below.

The Commonwealth of Kentucky, by and through the Cabinet for Health and Family Services (the Health Cabinet, formerly known as the Cabinet for Families and Children), contracts with third-party vendors for genetic testing to establish paternity. The KMPC governs pm-chasing by the Commonwealth. See Kentucky Revised Statutes (KRS) Chapter 45A. So the KMPC is applicable to the Health Cabinet’s solicitation for bidders for the genetic testing contract (the contract) at issue in this case.

In April of 2003, in accordance with KRS 45A.695, the Health Cabinet issued a Request for Proposals (RFP) for the contract, which was to begin July 1, 2003, and continue one fiscal year through June, 2004. The 25-page RFP detailed the description of services required; the information and data required; the relative importance of the particular qualifications; the deadline and proper form of response; and all necessary attachments. As part of the description of services required, the Health Cabinet established ten vendor requirements. The following statement prefaced the ten enumerated requirements: “To be eligible to submit a bid, Vendor shall meet the following criteria.” Vendor Requirement 10, the primary source of contention in LabCorp’s appeal, states: “Must have tested a minimum of 15,000 cases in paternity within the last calendar year.” The vendor was also to provide supporting documentation that it met this vendor requirement.

Once the vendors submitted their bid proposals, a review committee was to evaluate each proposal using a consensus evaluation methodology. The evaluators were to assign a possible score for ten specified criteria, and the bid would be awarded to the vendor achieving the highest score.

LabCorp, PTC, and two other bidders submitted bid packages in response to the RFP. The Health Cabinet awarded the contract to PTC and notified the other bidders that they had not been selected. Less than two weeks after receiving the notification that it had not been selected, LabCorp filed a bid protest under KRS 45A.285.

While the protest was pending, LabCorp made an open records request under KRS 61.872 to the Health Cabinet and the Finance and Administration Cabinet (the Finance Cabinet) seeking the evaluation of bids and the bid documents submitted by the other bidders.

Four months after LabCorp filed its protest, the secretary of the Finance Cabinet issued a letter denying LabCorp’s protest. Two months later, LabCorp received the records it had requested in its open records request. After reviewing the bid documents and the evaluators’ score sheets, LabCorp filed another protest through its attorneys.

In support of its second protest, Lab-Corp alleged that PTC did not meet Vendor Requirement 10. Additionally, Lab-Corp did not believe that PTC’s proposal justified the contract award because the proposal demonstrated that, in addition to the minimum case requirement, PTC was not qualified for a number of other reasons.

PTC’s response that it met Vendor Requirement 10 was as follows: “PTC performed approximately 39,844 tests in the calendar year of 2002.” As to the supporting documentation that it met this require- ; ment, PTC stated, “PTC performed testing on approximately 40,000 individuals in 2002. PTC can provide a printout of all cases and case numbers for further verification upon request. Additional information is also available upon request.”

Two weeks after LabCorp filed its second protest, the secretary of the Finance Cabinet issued a letter denying the protest. LabCorp then filed a Verified Complaint and Request for Injunctive Relief in the Franklin Circuit Court. The trial court conducted a hearing the following day and denied LabCorp’s motion for in-junctive relief.

In its complaint, LabCorp alleged that PTC’s bid was inadequate and was non-responsive to the RFP. In particular, PTC did not meet Vendor Requirement 10 based on the paternity industry standard that a “case” customarily includes three individuals to determine paternity — one test of the child, one test of the mother, and one test of the putative father. Based on PTC’s response, PTC was ineligible to make a bid.

In addition to PTC’s ineligibility, Lab-Corp asserted in its complaint that the award to PTC was not supported by substantial evidence, and PTC’s bid response contained false and misleading information. LabCorp claimed that the consideration of the PTC proposal by the Health Cabinet and/or the Finance Cabinet and the contract award to PTC violated KRS 45A.695, KRS 45A.285 and KRS 45A.290. The consideration and award constituted arbitrary and capricious action under the procedural and substantive due process clauses of the Kentucky Constitution (Section 2) and the United States Constitution.

Less than one month after LabCorp filed its complaint, the Finance Cabinet filed a motion for judgment on the pleadings partially on the grounds that Lab-Corp lacked standing. Two months later, the trial court granted the motion and cited Pendleton Bros. Vending, Inc. v. Com. Finance and Admin. Cabinet, 758 S.W.2d 24 (Ky.1988), in support of its ruling that LabCorp’s allegations did not rise to the level necessary to establish standing for judicial review.

On the same day that the clerk entered the trial court’s order and judgment, Lab-Corp filed a motion for leave to file an amended complaint. In support of its motion, LabCorp argued that the RFP defined “case” to include the mother, child and father. This is consistent with the industry standard definition of “case.” In addition, LabCorp sought to assert the legal position that the actions of the Cabinet in awarding the contract to PTC was “in violation of statute,” and was “arbitrary and capricious” under the Kentucky Constitution. Finally, LabCorp believed that PTC’s bid proposal contained intentional and knowingly misleading statements that were intended to cause the Health Cabinet to overlook the fact that PTC was unqualified under the Health Cabinet’s vendor requirements.

The day after LabCorp filed the motion to amend its complaint, LabCorp responded to the trial court’s order with its first motion to alter, amend or vacate. The trial court denied the motion and affirmed its earlier opinion and order. In so doing, the trial court held that LabCorp’s new allegation of dishonesty did not confer standing on LabCorp. And even if the allegation were valid, the contract would be voidable by the Finance Cabinet against PTC, but not void.

After the trial court ruled on LabCorp’s first motion to alter, amend or vacate, LabCorp filed another motion to alter, amend or vacate that ruling on the grounds that the trial court misconstrued the holding and import of Pendleton Bros. The trial court stated that “[t]he disagreement between the parties regarding the RFP’s technical terms does not confer judicial review” and denied LabCorp’s second motion to alter, amend or vacate. LabCorp appeals from this series of opinions and orders.

LabCorp raises a number of arguments for our review. First, LabCorp addresses the facts that PTC has fulfilled its contractual obligations for the fiscal year 2004, and the genetic testing contract for the 2005 fiscal year was awarded to a different vendor — not LabCorp or PTC. LabCorp asserts that the issue is not moot in spite of these facts because an actual case or controversy exists and this issue is likely to recur.

Second, LabCorp argues that this Court’s standard of review is de novo because the trial court issued a judgment on the pleadings.

Third, LabCorp argues that Pendleton Bros, does not limit standing for disappointed bidders to allegations tantamount to fraud. Pendleton Bros, acknowledges that the KMPC “changed the rules of the game” of state purchasing by “providing access not previously available to challenge and investigate the propriety of government purchasing contracts.” Id. at 24. Accordingly, judicial review in this case furthers the policies of the KMPC, which are set out in KRS 45A.010 and include (1) providing safeguards for the maintenance of a procurement system of quality and integrity and (2) ensuring fair and equitable treatment of all people who deal with the system. And in administrative proceedings such as this one, “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceedings in which the facts were adjudicated was conducted regularly.” Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 374 (Ky.1988). LabCorp argues that judicial review for- disappointed bidders maintains the supremacy of the law.

Fourth, LabCorp asserts that it has raised justiciable claims that the award to PTC and the denial of LabCorp’s protests were arbitrary and capricious and contrary to law. In particular, LabCorp contends that PTC should have been disqualified and not even evaluated because it failed to meet the mandatory criteria of Vendor Requirement 10. This requirement was not a mere technicality. And the dismissive approach taken by the Health Cabinet, the Finance Cabinet and the trial court was contrary to law. According to LabCorp, the trial court relied on one line in Pendleton Bros.: “On the other hand, every purchasing decision or alleged omission is not subject to judicial oversight.” Id. at .30. LabCorp asserts that such reliance, however, swallowed the rule of the case.

Further, LabCorp’s fourth argument asserts that it was improper and contrary to law for the Finance Cabinet to rely on its ex parte discussions with the contract’s purchasing officer in denying LabCorp’s bid protest. Finally, LabCorp contends that KRS 45A.695(3) specifies that the RFP was to have provided adequate notice of the type of information and data required of each bidder. And any corrections or changes to the RFP were to be made by a modification. No such modification of Vendor Requirement 10 was ever issued in this case.

Fifth, LabCorp argues that the trial court erred in holding that only the Commonwealth, and not LabCorp, could assert a claim against PTC based on misrepresentation and on being a non-responsive bidder. LabCorp alleges that PTC misrepresented its experience to give a false impression in order to mislead the Health Cabinet and obtain an advantage over other bidders. Such misrepresentations subvert the purposes of the KMPC.

Based on the above arguments, Lab-Corp desires this Court to enforce the holding of Pendleton Bros, by remanding this case to the trial court for LabCorp to proceed for its bid preparation costs.

In response, PTC argues that LabCorp’s cause of action is moot, at least as to PTC. It is moot because PTC has fulfilled its contractual obligations. In addition, Lab-Corp has never demanded any relief from PTC in either its original or its amended complaint. None of the exceptions to the mootness doctrine apply in this case, and PTC should be dismissed as a party. Notwithstanding this argument, PTC argues that (1) the trial court correctly applied the legal standard for judgment on the pleadings; and (2) LabCorp has no standing to contest the bid award on the basis of a disputed definition of a bid term.

Robbie Rudolph (as Secretary for the Finance Cabinet) and the Finance Cabinet filed a combined response, which mirrors the fundamental arguments of PTC. They argue that the trial court was correct in its determination that LabCorp did not have standing. Alternatively, they argue that the issue is moot because the underlying case no longer exists due to the contract’s expiration on June 30, 2004.

Consistent with the arguments of the three other appellees, the Health Cabinet contends that LabCorp’s cause of action is moot. In addition, the Health Cabinet addresses several perceived inconsistencies in LabCorp’s arguments on appeal and reiterates that the Health Cabinet’s contract award was not arbitrary, capricious or contrary to law.

The threshold question is whether the controversy over the contract award in this case is moot. Considering LabCorp’s argument that it is entitled to judicial review because the Health Cabinet’s decision to award a contract to an unqualified bidder was arbitrary, capricious and contrary to law, we believe that an actual case or controversy exists in spite of the underlying contract’s expiration. The KMPC allows for bid protests, and Kentucky law affords judicial review of administrative actions if an award is arbitrary, capricious or made in violation of the KMPC, as LabCorp alleges. See KRS 45A.285(2) and Pendleton Bros., 758 S.W.2d at 25, 28-29. The matter is not moot.

We now turn to the issue of the proper standard of review. As mentioned above, we must decide whether the contract award to PTC by the Health Cabinet and as upheld by the Finance Cabinet was arbitrary, capricious or contrary to the provisions of the KMPC. See id. See generally American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm’n, 379 S.W.2d 450, 456 (Ky.1964) (“Basically, judicial review of administrative action is concerned with the question of arbitrariness.”)

Under KRS 45A.285, the KMPC allows for an aggrieved prospective bidder to file a protest with the secretary of the Finance Cabinet. In its entirety, KRS 45A.285 is as follows:

(1) The secretary of the Finance and Administration Cabinet, or his desig-nee, shall have authority to determine protests and other controversies of actual or prospective bidders or offerors in connection with the solicitation or selection for award of a contract.
(2) Any actual or prospective bidder, of-feror, or contractor who is aggrieved in connection with the solicitation or selection for award of a contract may file a protest with the secretary of the Finance and Administration Cabinet. A protest or notice of other controversy must be filed promptly and in any event within two (2) calendar weeks after such aggrieved person knows or should have known of the facts giving rise thereto. All protests or notices of other controversies must be in writing.
(3) The secretary of the Finance and Administration Cabinet shall promptly issue a decision in writing. A copy of that decision shall be mailed or otherwise furnished to the aggrieved party and shall state the reasons for the action taken.
(4) The decision by the secretary of the Finance and Administration Cabinet shall be final and conclusive.

Under the KMPC, any decision of any official or board “appointed by the Commonwealth concerning any controversy arising under, or in connection with, the solicitation or award of a contract, shall be entitled to a presumption of correctness and shall not be disturbed unless the decision was procured by fraud or the findings of fact by such official ... do not support the decision.” KRS 45A.280.

In Pendleton Bros., Kentucky’s highest court determined that the KMPC provided “access not previously available to challenge and investigate the propriety of government purchasing contracts.” Specifically, the Pendleton Bros, court held that the KMPC had effected a statutory change so that procurement is now a regulated administrative procedure subject to court challenge if the decision is contrary to law, or arbitrary and capricious. See id. at 25. To aid in the application of the court’s holding, however, it cautioned that “every purchasing decision or alleged omission is not subject to judicial oversight.” Id. at 30.

LabCorp alleged in its complaint that the Health Cabinet acted contrary to various provisions of the KMPC in considering PTC’s bid and in ultimately awarding the contract to PTC. In addition, Lab-Corp asserted that the Health Cabinet and the Finance Cabinet acted arbitrarily in denying its protest and in failing to grant relief. As pleaded — a procurement decision that was both contrary to law and arbitrary — LabCorp had standing to judicially challenge the award of the contract to PTC. But our analysis does not stop here as we now consider the evidence in support of LabCorp’s claim.

Turning to the facts of this case, LabCorp filed two bid protests. It filed the first after its initial notification that the Health Cabinet had awarded the contract to another bidder. Once LabCorp received PTC’s bid proposal, it filed another protest in which it alleged that PTC was unqualified under the RFP’s Vendor Requirement 10.

The secretary of the Finance Cabinet determined the merits of LabCorp’s protests and denied both of them. In the secretary’s final determination, as to Vendor Requirement 10, it reasoned that the solicitation did not define the terms, “case” or “test.” Although not defined in the solicitation, the secretary found that the purchasing officer responsible for the procurement and for drafting the specifications intended that a vendor must have performed a minimum of 15,000 tests, rather than 15,000 cases. And the secretary found that the purchasing officer discussed and clarified this issue at the mandatory pre-bid conference attended by all bidders, including LabCorp.

On the issue of information ascertained and provided at the mandatory pre-bid conference, the secretary found that the purchasing officer stated, in response to a bidder question, that 19,039 tests were completed for the 2002 fiscal year. From this number, the secretary reasoned as follows:

[A] requirement that a vendor must have completed 15,000 tests, rather than 15,000 cases, would be in keeping with the agency’s prior experience and requirements. Since the solicitation did not define “case” or “test,” and particularly since the agency’s intent was clarified at the aforementioned mandatory pre-bid conference, the agency reasonably and justifiably relied on the statement that PTC had performed approximately 40,000 tests as meeting the requirements of the RFP.

LabCorp seizes on the latter statement that the term was clarified at the pre-bid conference as evidence that a modification was warranted under administrative regulations promulgated to carry out the KMPC. See 200 KAR 5:311. We do not believe, however, that the failure to issue a modification was arbitrary, capricious or contrary to the law. It was not unreasonable for the secretary to conclude that the purchasing officer clarified a bid term and such clarification was in keeping with the General Information Section of the RFP and did not rise to the level of a modification. See Section IV, General Information 10 (“Any information supplied by the Cabinet in r esponse to a prospective applicant’s questions must be supplied to all identified prospective applicants;”).

On appeal, LabCorp takes issue with the secretary’s alleged reliance on ex parte communications with the purchasing officer. The record does not reflect that Lab-Oorp ever Requested an administrative hearing, which would have afforded it an opportunity to call witnesses and, perhaps more importantly, cross-examine witnesses. As no party requested a hearing and no hearing was conducted, LabCorp will not be permitted in this appeal to take issue with the secretary’s reliance on the purchasing officer’s statements of intent with regard to terms in Vendor Requirement 10.

In summary, based on LabCorp’s arguments and evidence in support of its bid protest, the award in this- case was not made in violation of the provisions of the KMPC. But LabCorp was entitled to judicial review based on that which it pleaded in its complaint. The substance of Lab-Corp’s claim, however, concerns an alternative interpretation of a bid term. A large measure of discretion is to be afforded to a contracting officer in a negotiated procurement, and this Court, like the lower court and the secretary of the Finance Cabinet, is unwilling to accept LabCorp’s interpretation over that of the contracting officer absent a valid reason for doing so. LabCorp has provided no such reason. Thus, while we disagree with the trial court’s conclusion as to standing, we affirm as to the result reached by the trial court that this case was no more than a disagreement over a bid term that was adequately addressed at the administrative level.

GUIDUGLI, Judge, concurs in result.

MINTON, Judge, concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Guy T. WOOLFOLK, Appellant.
    No. ED 84585.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 21, 2006.
    John P. Rogers, Clayton, MO, for appellant.
    Shaun J. Mackelprang, Stephanie Mor-rell, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Guy Woolfolk (hereinafter, “Defendant”) appeals from the trial court’s judgment after a jury convicted him of one count of robbery in the first degree, Section 569.020 RSMo (2000) and one count of felonious restraint, Section 565.120 RSMo (2000). Defendant, a prior and persistent offender, was sentenced to serve concurrent terms of twenty-five years and fifteen years, respectively.

Defendant raises three points on appeal. First, Defendant argues the trial court violated his constitutional right to present a defense when it failed to find the State committed a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, (1963) violation by withholding information regarding one of the investigating police officers. Second, Defendant alleges the trial court abused its discretion in granting the State’s motion in limine restricting testimony with respect to the termination of one of the investigating police officers. Finally, Defendant argues his right to equal protection was violated when the State used six of seven peremptory challenges to strike African-American women from the venire panel, thus violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find no error. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


author: LISA WHITE HARDWICK, Judge.

text:
    Larry D. CARLYLE, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS and Dennis Agniel, Chair Missouri Board of Probation and Parole, Appellant.
    No. WD 65441.
    Missouri Court of Appeals, Western District.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 2006.

      Michael J. Spillane, Jefferson City, MO, for Appellants.
    John P. O’Connor, Michael L. Belancio, Co-counsel, Kansas City, MO, for Respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   LISA WHITE HARDWICK, Judge.

The Missouri Department of Corrections (MDOC) and the Chairman of the Probation and Parole Board appeal from a judgment in favor of Larry Carlyle on his petition for declaratory judgment. Appellants contend the circuit court improperly applied the law in determining that Carlyle had no prior prison commitments and, therefore, was not required by Section 558.019.2(1), RSMo 2000, to serve a minimum of forty percent of his current sentence before becoming eligible for parole. We affirm the judgment based on the circuit court’s proper application of existing law.

Factual and Procedural History

On January 5, 2001, Carlyle was convicted of driving while intoxicated. The circuit court suspended execution of his four-year prison sentence and ordered probation. Carlyle violated the probation and, upon revocation, he was delivered to the MDOC on January 26, 2004, to serve the four-year sentence.

MDOC informed Carlyle that he was required to serve a minimum of forty percent of his sentence under Section 558.019.2(1) because he had a prior prison commitment. Carlyle had a prior felony conviction for which he had served in MDOC’s “120-day call back” treatment program. MDOC concluded that Carlyle’s participation in the program constituted a “prior commitment” for purposes of applying the forty percent mandatory minimum provision.

On December 3, 2004, Carlyle filed a petition for declaratory judgment to challenge the calculation of his minimum release date. He asserted MDOC improperly considered the time served on his prior conviction because Section 559.115.7, RSMO Cum.Supp.2004, expressly provides that participation in a 120-day incarceration program does not qualify as a “previous prison commitment” under Section 558.019. Although Section 559.115.7 did not become effective until June 27, 2003— more than two years after Carlyle committed the drunk driving offense for which he is now incarcerated — Carlyle argued the provision should be applied retroactively based on the precedent established in State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004) (retroactively applying an early prison release statute), Irvin v. Kempker, 152 S.W.3d 358 (Mo.App.2004) (retroactively applying § 559.115.7 for purposes of determining prior commitment), and Powell v. Missouri Department of Corrections, 152 S.W.3d 363 (Mo.App.2004) (retroactively applying § 559.115.7). As an inmate with no prior prison commitment, Carlyle asserted he should be eligible for release after serving fifteen percent of his sentence, pursuant to the sentencing guidelines in 14 C.S.R. 80-2.010.

The parties submitted the case on stipulated facts. On April 6, 2005, the circuit court entered judgment in Carlyle’s favor. The court retroactively applied Section 558.115.7 and determined that Carlyle was eligible for immediate release because he had served fifteen percent of his sentence by January 26, 2005. MDOC and the Chairman of the Probation and Parole Board appeal from the judgment. Carlyle was released on parole on July 7, 2005.

Point on Appeal

The Appellants contend the circuit court erroneously determined that Section 559.115.7 could be retroactively applied. They argue that Section 1.160 prohibits an amendatory law from retroactively reducing punishment. Appellants further contend the circuit court erred in relying on the precedent recently established in Irvin and Powell because those cases were “wrongly decided” by our court.

In reviewing this court-tried case, we must affirm the circuit court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When, as here, a court-tried case is submitted on stipulated facts, we need only determine “whether the trial court drew the proper legal conclusions from the facts stipulated.” Sheldon v. Bd. of Trs. of Police Ret. Sys., 779 S.W.2d 553, 554 (Mo. banc 1989). Questions of law are reserved for the independent judgment of the appellate court without deference to the trial court’s determination. Langdon v. United Rests., Inc., 105 S.W.3d 882, 886 (Mo.App.2003).

Our court most recently addressed the retroactive application of Section 559.115.7 in Nieuwendaal v. Missouri Department of Corrections, 181 S.W.3d 153 (Mo.App. W.D.2005). Nieuwendaal affirmed the holdings from Irvin and Powell that “ § 1.160 did not apply because § 559.115.7 was a new statute that did not repeal or amend a previous statute and because § 559.115.7 did not shorten the defendant’s sentence or alter the law creating the offense.” Id. at 155.

All three of our prior decisions relied on the Supreme Court’s reasoning in State ex rel. Nixon v. Russell, 129 S.W.3d 867. Russell held that Section 558.016.8, a new parole eligibility statute enacted in the same set of legislation as Section 559.115.7, applied retroactively because it did not change the offender’s punishment. Id. at 870-71. The Court affirmed that Section 1.160 is inapplicable to any new statute that does not shorten or increase the length of an offender’s sentence. Id. Applying Russell, we held in Nieuwendaal: “Likewise, § 559.115.7 does not increase the length of an offender’s sentence or affect substantive rights. The statute may be applied retroactively[.]” Slip op. at 4.

Appellants argue that our prior cases should have followed the Supreme Court’s prior ruling in State v. Lawhorn, 762 S.W.2d 820, 824-26 (Mo. banc 1988), rather than Russell. In Lawhom, the Court considered whether an ex post facto violation occurred when a new law mandating a minimum prison term of forty percent was applied to an inmate who was originally required to serve at least one-third of his term. A law falls within the ex post facto prohibition if it is retrospectively applied to the disadvantage of an offender by altering “substantial personal rights.” Id. at 824. The Court explained that “no ex post facto violation occurs if a change does not alter ‘substantial personal rights,’ but merely changes ‘modes of procedure which do not affect matters of substance.’ ” Id The Court ultimately held that the new law could not be retroactively applied because it adversely affected the offender’s substantive rights by enlarging his minimum prison term. Id. at 825-26.

We agree that Lawhom addressed one of the key issues raised in this appeal: whether a statute that affects the minimum prison time served is substantive or procedural. However, Lawhom’s holding that such matters are substantive appears at odds with the Supreme Court’s more recent ruling in Russell that new statutes affecting the minimum time served in prison are merely procedural and can be retroactively applied. Finding no way to reconcile or distinguish the two decisions, we can only conclude that Russell overruled Lawhom sub silentio. Thus, we find no error in the circuit court’s reliance on Russell, and its progeny in Irvin and Powell, in determining the outcome of this case.

Existing law permits the retroactive application of Section 559.115.7. Accordingly, the circuit court properly applied the new statute in determining that Carlyle’s previous 120-day incarceration did not constitute a “previous prison commitment” for purposes of Section 558.019.2(1). The judgment is affirmed.

All concur.

      . Section 558.019.2 provides in relevant part:
      (1) If the defendant has one previous prison commitment to the department of corrections for a felony offense, the minimum prison term which the defendant must serve shall be forty percent of his sentence or until the defendant attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first[.]

      . Carlyle argues that this appeal is moot because MDOC has already acquiesced in the circuit court’s judgment by releasing him on parole. This contention is without merit. A live controversy remains in that Carlyle is still serving his four-year sentence on parole, even though he is out of prison. See State ex rel. Nixon v. Russell, 129 S.W.3d 867, 870 (Mo. banc 2004)

      . Section 1.160 provides:
      No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:
      (1) That all such proceedings shall be conducted according to existing procedural laws; and
      (2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amen-datory law.


text:
    Mary Elizabeth YOUNG, Appellant, v. Nelson Lee YOUNG, Respondent.
    No. WD 65450.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 2006.
    John W. Stapleton, Jr., Kansas City, MO, for appellant.
    Nelson Lee Young, Florence, MS, pro se.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Mary Elizabeth Young appeals from the judgment of the Circuit Court of Jackson County entered upon this court’s remand in Young v. Young, 152 S.W.3d 887 (Mo.App. W.D.2005). Judgment affirmed. Rule 84.16(b).


text:
    Gary W. DIEKHOFF, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64598.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 2006.
    Susan L. Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and HOWARD, JJ.
   Order

PER CURIAM.

Gary W. Diekhoff appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief seeking to vacate, set aside or correct the judgment of his convictions for two counts of sodomy in the first degree, § 566.062. The appellant pled guilty in the Circuit Court of Cooper County and was sentenced to consecutive terms of imprisonment in the Missouri Department of Corrections of fifteen and ten years.

The appellant raises two points on appeal. In Point I, he claims that the motion court erred in overruling his Rule 24.035 motion for post-conviction relief, without an evidentiary hearing, because in doing so it violated Rule 24.035®, by not making the required findings of fact and conclusions of law. In Point II, he claims that the motion court erred in overruling his Rule 24.035 motion for post-conviction relief, without an evidentiary hearing, because he alleged facts, in his motion, which were not refuted by the record and if true, would establish that the trial court violated Rule 24.02(e) by accepting his guilty pleas without a sufficient factual basis for each.

We affirm pursuant to Rule 84.16(b).


author: ROBERT G. ULRICH, Presiding Judge.

text:
    Robbie Arthur ALBERSWERTH, Respondent, v. Teresa Leann ALBERSWERTH, Appellant.
    No. WD 65322.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.

      Weldon W. Perry, Jr., Lexington, MO, for Appellant.
    Wanda A. Hansbrough, Parkville, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Teresa Alberswerth appeals the Lafayette County Circuit Court’s Judgment of Modification, which modified a Judgment Decree of Dissolution of Marriage. Ms. Alberswerth presents four points on appeal. First, she claims the modification judgment does not contain sufficient written findings with regard to the modification of child custody. Second, she claims the trial court’s award of sole physical custody of the two minor children, born to the parties during their marriage, to Mr. Alberswerth was not supported by substantial evidence and was against the weight of the evidence. Third, she claims the trial court erred in assessing attorney’s fees and Guardian Ad Litem fees against her. Finally, she claims the trial court erred in allowing certain documents to be admitted during trial. Ms. Albers-werth’s first point and third point, with respect to attorney’s fees, are granted and the judgment is reversed and remanded. Her second point is not reached, and her third point, with respect to Guardian Ad Litem fees, and fourth point are denied.

Facts

Robbie and Teresa Alberswerth were married on April 20, 1985. They had two sons during the marriage; Chance Albers-werth was born December 31, 1990, and Trace Alberswerth was born October 7, 1993. The marriage was dissolved on October 25, 2002.

Ms. Alberswerth is a schoolteacher and Mr. Alberswerth owns and operates a brickyard. They live approximately two blocks from one another and from the children’s school. Trace Alberswerth has been diagnosed as having Attention Deficit Disorder with Oppositional Defiance Disorder. ' He has been and continues to be under the care of both a psychiatrist and a psychologist and takes medication to treat his behavioral issues.

In the Judgment Decree of Dissolution of Marriage, the trial court awarded no child support to either party, awarded Mr. Alberswerth sole legal custody of the children, and designated Mr. Alberswerth the primary residential parent for the two children. Ms. Alberswerth was awarded parenting time with the two children from 3:00 p.m. to 6:00 p.m. on weekdays during the school year. Ms. Alberswerth also was awarded parenting time with the children overnight on Thursdays. Mr. Alberswerth was awarded parenting time with the children the remainder of the time during the week. The children alternated weekends between Mr. and Ms. Alberswerth. The Judgment further decreed that Mr. Al-berswerth was to call Ms. Alberswerth every Sunday at 7:00 p.m. to review their calendars and their sons’ activities for the upcoming week.

The physical custody schedule during the summer was as follows: During the week, Mr. Alberswerth had parenting time with the children from 6:00 p.m. to 9:00 p.m. and Ms. Alberswerth had parenting time with the children the remainder of the time. The weekend physical custody schedule was the same as during the school year, with the children alternating weekends between Mr. and Ms. Albers-werth. The Judgment additionally provided for physical custody arrangements for holidays and birthdays and made other provisions consistent with a comprehensive parenting plan.

The Judgment also contained a right of first refusal, which'read as follows:

Each party shall grant to the other a “right of first refusal” for parenting time with regard to care of the minor children. Said right of first refusal would “vest” if the children are to be outside the custody of the parent with the children for two hours or more.

Further, the Judgment contained a provision stating that the parents had the right to alter, modify, and otherwise arrange for specific custody periods on terms and conditions conducive to the best interests and welfare of the children.

On November 7, 2003, Ms. Alberswerth filed a Motion to Modify Judgment of Dissolution of Marriage alleging that the circumstances of her sons and Mr. Albers-werth had changed substantially and on a continuing basis such that the children’s best interest required modification of custody, visitation, and support as set forth in the Judgment of Dissolution. Ms. Alberswerth alleged, inter alia, that Mr. Albers-werth behaved inappropriately toward or in the presence of Trace Alberswerth and that he refused to offer her the right of first refusal set forth in the dissolution judgment. She prayed for legal, and physical custody of the children, child support, attorney’s fees, and costs.

Because of the allegations of abuse or neglect, the court appointed a Guardian Ad Litem. In her proposed parenting plan, filed with the court on January 16, 2004, Ms. Alberswerth sought joint legal custody and primary physical custody, with Mr. Alberswerth having visitation one weekday per week from 8:00 p.m. to 9:00 p.m., every other weekend, and six weeks during the summer.

On June 8, 2004, trial was scheduled for September 17, 2004. On September 1, 2004, Ms. Alberswerth received notification that Mr. Alberswerth would call Dr. Kevin Mays at trial as an expert witness and that his deposition was scheduled for September 8, 2004. Dr. Mays was Trace Albers-werth’s treating psychologist. On September 2, 2004, the next day, Ms. Alberswerth filed several relevant motions with the trial court; these were a Motion to Strike Expert Witness Opinion and Testimony, a Motion to Quash Depositional Notices, and a Motion in Limine. The trial court conditionally granted the Motion to Strike Expert Witness Opinion and Testimony, granted the Motion to Quash Depositional Notices, and denied the Motion in Limine.

Trial was had on September 17, 2004. During trial, a redacted letter written by Dr. Mays was admitted into evidence, pursuant to a pretrial stipulation. Certain medical records of Dr. Mays were also admitted, over Ms. Alberswerth’s objections.

On October 18, 2004, the trial court rendered its Judgment of Modification. The court found that modification was required because “since the dissolution of the marriage, the parties have interacted in a manner which is not in the best interest of the minor children.” The trial court also found that Ms. Alberswerth “has demonstrated an inability to properly care for and handle Trace Alberswerth’s needs.” Finally, the trial court found that “the best interest of the minor children warrants and demands a modification of the original judgment to reduce the interaction of parties around and including the minor children.”

The trial court left Mr. Albers-werth’s sole legal custody of the children unchanged but modified the physical custody arrangement. During the school year, Ms. Alberswerth was awarded parenting time with the children from 3:00 p.m. on Thursdays until 3:00 p.m. on Fridays and every other weekend. During the summer, Mr. and Ms. Alberswerth were awarded parenting time with the children in alternating two-week periods, with the parent not currently with custody having custody of the children over the interim weekend of the two-week period. The right of first refusal was changed to go into effect when the child or children are to be outside the custody of a parent for more than eight hours, as opposed to two hours as set forth in the original dissolution judgment.

The trial court also awarded the Guardian Ad Litem her fee of $5,175.00 and ordered Ms. Alberswerth to pay the full amount. Mr. Alberswerth was additionally awarded his attorney’s fees in the amount of $7,837.00. The remainder of the Judgment remained unchanged or is of no interest in this matter.

Point I

In her first point on appeal, Ms. Alberswerth argues that the modification judgment does not contain the required detailed written findings of relevant statutory factors relied upon in modifying the custody arrangement. Ms. Alberswerth is correct. The trial court erred as a matter of law because it failed to make the required findings in compliance with section 452.375.6.

When reviewing a modification of child custody, the judgment of the trial court will be affirmed if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). An appellate court defers to the trial court’s superior ability to assess witness credibility and views all facts and reasonable inferences in a light most favorable to the trial court’s decision. Dunkle v. Dunkle, 158 S.W.3d 823, 832-33 (Mo.App. E.D.2005). A trial court has broad discretion with respect to custody issues and custody decisions are given greater deference than civil cases. Id. at 833. An appellate court presumes the trial court awarded custody in accordance with the children’s best interest after a thorough review of the evidence and a trial court’s judgment will be reversed only if the appellate court is firmly convinced that the welfare and best interests of the children require a different disposition. Id. Each case is reviewed in light of its own unique facts. Huber ex rel. Boothe v. Huber, 174 S.W.3d 712, 714 (Mo.App. W.D.2005).

“Determining custody and custodial arrangements of children in dissolution actions is one of the most important and most sensitive duties of the court.” Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). Section 452.375 governs child custody. Cerutti v. Cerutti 169 S.W.3d 113, 115 (Mo.App. W.D.2005); § 452.375. When awarding child custody, the trial court must determine the best interests of the child. Cerutti 169 S.W.3d at 115; § 452.375.2. To determine what custody arrangement would be in the child’s best interest, the trial court must consider the eight statutory factors listed in section 452.375.2 and the public policy statement set forth in 452.375.4. Cerutti 169 S.W.3d at 115; § 452.375.2, .4.

When child custody is contested, as it was in this case, written findings must be made in the judgment based on both the eight factors of subsection two and the public policy contained in subsection four. Cerutti, 169 S.W.3d at 115; § 452.375.6. Section 452.375.6 states in relevant part:

If the parties have not agreed to a custodial arrangement ... the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

§ 452.375.6 (emphasis added). The Missouri Supreme Court made clear in Speer that section 452.375.6’s dictate that the judgment must detail the specific relevant factors that made the chosen custody arrangement in the best interest of the child applies to all relevant factors listed in section 452.375.2 and the public policy statement. Speer, 155 S.W.3d at 62; § 452.375.6. In Buchanan, 167 S.W.3d at 702, the Missouri Supreme Court reiterated Speer and stated that, if custody is a contested issue, “written findings that include discussion of the applicable factors from section 452.375.2 are required.” This written consideration of all pertinent factors is intended to allow a more meaningful appellate review. Swallows, 172 S.W.3d at 915.

The mandate for written findings is clear; what degree of specificity is required by a trial court in its written findings is not as clear. Section 452.375.6 uses the word “detail” and this word is repeated in the cases interpreting and applying this statute. The trial court must detail the relevant factors. “The trial court is not, however, required to do a complete ‘laundry list’ of the statutory factors under section 452.375.2(1)-(8). Instead, it must only address in detail those factors that it considered particularly relevant to its custody determination.” Dunkle, 158 S.W.3d at 833 (internal citations and quotation marks omitted). Prior cases examining the sufficiency of written findings are helpful.

In Tipton v. Joseph-Tipton, 173 S.W.3d 692 (Mo.App. W.D.2005), the trial court did not make any findings concerning the eight section 452.375.2 factors or the public policy statement found in section 452.375.4. Id. at 694. The judgment merely quoted the public policy statement and declared that joint legal and physical custody “in the best interests of the minor children.” Id. This court reversed and remanded the judgment with directions for the trial court to make the statutorily required findings. Id.

In Cerutti, 169 S.W.3d at 115, the only finding in the judgment regarding child custody was that the mother was the proper person to have custody and control of the minor child. This court held that the judgment did not address the public policy or the eight statutory factors of 452.375 and reversed the judgment. Id.

In In re Marriage of Swallows, 172 S.W.3d at 914, the trial court made the following findings:

Now, the Court, being fully advised in the premises, finds from the evidence that there has been such continuing and substantial change of circumstances which would require modification of the judgment, to-wit: [Father] is regularly employed, has a stable and safe home environment and supervised visitation with the minor child is no longer required. The Court also finds that [Mother], who by her own admission believes that a child of this age “belongs with the mother” has, without good cause, consistently refused to promote an ongoing and continuing relationship with the minor child and [Father],

The father argued that the judgment met the statutory requirements, despite the fact that it did not explicitly contain the statutory findings. Id. at 915. He contended that the judgment’s contents reflected that the trial court considered relevant factors that corresponded to those enumerated in section 452.375.2(2), (3), and (4). Id. The Southern District stated that Speer and Buchanan “make it clear that § 452.375.6 requires written findings detailing the specific relevant factors that made the chosen arrangement in the best interests of the child.” Id. at 916. The court noted that a finding was not made that the chosen arrangement was in the child’s best interests and that the judgment “failed to detail the specific relevant factors that [the trial court] concluded would make this arrangement in [the child’s] best interest.” Id. The appellate court reversed and remanded the judgment. Id.

In Fortner v. Fortner, 166 S.W.3d 615, 622 (Mo.App. W.D.2005), this court reversed a judgment for failure to make sufficient findings. This court noted that, while a trial court need not mechanically discuss all eight factors listed in section 452.375.2, it must discuss the relevant factors in such a manner that meaningful appellate review is possible. Id. This court further noted that the judgment at issue did not reference section 452.375, indirectly discussed just two of the eight factors, and failed to discuss the fourth factor, which is the public policy of frequent, continuing, and meaningful contact with the parents. Id.

In Erickson v. Blackburn, 169 S.W.3d 69 (Mo.App. S.D.2005), the trial court’s judgment was deemed to have complied with the statutory mandate to make written findings. The appellate court noted that, while the findings did “not track the order or verbiage of the factors listed in the statute, the court’s findings of fact clearly show that the judge made written findings on, at a minimum, five of the eight statutory factors.” Id. at 75. The Southern District observed:

The court made findings on the following facts. It concluded that the child has bonded with her half-brother and “with children her own age” (Factor # 3). Appellant is the party who chooses not to communicate with Respondent regarding matters involving the child, which creates a negative impact on the child and “directly impairs the ability of the child to enjoy a nurturing, loving relationship with both parents” (Factor # 4). [The child] has improved in school and has adjusted well to life with Respondent and his wife, who have provided her with a suitable home (Factor # 5). Respondent has provided [the child] with adequate medical and dental care, while Appellant has engaged in conduct that is harmful to the child, including repeatedly trying to get the child to express an opinion regarding with whom she would like to live, causing the child additional stress (Factor # 6). And finally, although it is possible that Respondent could be deployed to Afghanistan, such is not certain, and it would be speculative to assume that his deployment is imminent (Factor # 7).

Id. The appellate court concluded that the trial court’s findings complied with section 452.375.6 in that findings were made on the relevant factors listed in section 452.375.2. Id. at 76.

In the modification judgment rendered by the trial court in this case, the trial court made the following relevant findings:

3. This Court finds that since the dissolution of marriage, the parties have interacted in a manner which is not in the best interest of the minor children thus requiring modification of the Parenting Plan entered at the time of the dissolution of the parties’ marriage.
4. This Court further finds that Respondent Teresa Alberswerth has demonstrated an inability to properly care for and handle Trace Alberswerth’s needs.
5. This Court finds, as demonstrated by the evidence presented in the trial of this case which caused the pleadings to be modified to conform to the evidence, the best interest of the minor children warrants and demands a modification of the original judgment to reduce the interaction of parties around and including the minor children.

Ms. Alberswerth argues that these findings fail to comply with section 452.375. She contends that neither the eight statutory factors nor the public policy statement are addressed in the written findings. Ms. Alberswerth’s position is that the findings are inadequate in that they “do not identify, let alone ‘detail’ any of the actual facts and circumstances from the evidence the Court relied on in reaching a conclusion on the custody issue.” She also notes that there is no explicit reference to Chance Alberswerth. She claims that caselaw and the statutory mandate require more detailed findings be rendered in a case where child custody is contested.

Mr. Alberswerth argues that the third and fifth findings sufficiently address the public policy statement regarding the best interest of the child. He further claims that factors (1), (3), (5), (7), and (8) are irrelevant and that the remaining factors ((2), (4), and (6)) are addressed. Thus, he contends that the written findings comply with the statutory mandate.

The trial court’s findings fail to comply with section 452.375.6 and do not allow for meaningful appellate review. The third finding merely indicates that the original custody arrangement needed to be modified. The fifth finding indicates that it is in the children’s best interests that Mr. and Ms. Alberswerth do not have to interact frequently. Neither of these findings indicates that it is in the children’s best interest for sole physical or legal custody to be awarded to Mr. Alberswerth as opposed to Ms. Alberswerth. These two findings could support awarding sole custody to either party as long as the original arrangement was modified and Mr. and Ms. Alberswerth were not required to frequently interact. As for the fourth finding, this supports awarding Mr. Albers-werth custody of Trace Alberswerth, but it does not address Chance Alberswerth in any way.

Contrary to Mr. Alberswerth’s protestations, the trial court’s findings are insufficient. This court fails to see how the findings “detail” any of the factors. As discussed, supra, the trial court need not discuss every factor and it is not necessary to explicitly list each factor and then make a finding Consideration of the factors may be implied from the findings, but this court cannot imply what is simply not there.

The point is granted.

Point II

In her second point on appeal, Ms. Al-berswerth argues that the award of sole physical custody of the children to Mr. Alberswerth was not supported by substantial evidence and was against the weight of the evidence. As discussed, supra, the modification judgment does not contain the required detailed written findings of relevant statutory factors relied upon in modifying the custody arrangement. This court is unable to evaluate whether the award of sole physical custody was supported by substantial evidence without these written findings; therefore, this point cannot be addressed at this time.

Point III

In her third point on appeal, Ms. Alberswerth argues that the trial court erred in assessing the entire sum of the Guardian Ad Litem’s $5,175 fee and $7,837 of Mr. Alberswerth’s $16,500 attorney’s fees against her. She claims the assessment of fees against her was an abuse of discretion because she commenced the modification proceedings to address legitimate issues involving the children’s best interests and because the totality of evidence at trial indicates that the assessment of fees against her was improper.

As a general rule, parties to a domestic relations case are responsible for paying their own attorney’s fees. Barancik v. Meade, 106 S.W.3d 582, 593 (Mo.App. W.D.2003). A trial court is permitted, although not required, to award attorney’s fees under section 452.355.1. Id. A trial court is given considerable discretion in awarding attorney’s fees and an award of attorney’s fees will be overturned only upon showing an abuse of discretion. Aurich v. Aurich, 110 S.W.3d 907, 916 (Mo.App. W.D.2003). “To demonstrate an abuse of discretion, the complaining party must show the trial court’s decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice.” Id.

When awarding attorney’s fees, the trial court must comply with section 452.355. Geary v. Geary, 697 S.W.2d 318, 320 (Mo.App. E.D.1985). A trial court may award attorney’s fees only after considering all relevant factors, including the financial resources of both parties. Bar-ancik, 106 S.W.3d at 594. The relevant factors will balance differently in each case. Id. “A court is always required to consider the financial resources of both parties before deciding a request for attorney fees. In the absence of evidence as to the parties’ financial resources, an award of attorney fees cannot be supported.” Id. (internal citations and quotation marks omitted); see also Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo. banc 1979).

Detailed or extensive information regarding the parties’ financial resources is not required; information adduced from testimony as opposed to formal statements filed with the court is sufficient. See, e.g., In re the Marriage of Hoskins, 164 S.W.3d 188, 198 (Mo.App. S.D.2005)(affirming award of attorney’s fees, despite the fact that father did not offer a Statement of Property and Debt into evidence, because there was testimony regarding the assets of both mother and father). While detailed formal information regarding the parties’ financial resources is not necessary, evidence must have been presented from which the court can draw on in considering the relevant factors.

In Barancik, 106 S.W.3d at 594, a child custody modification action, the evidence of the financial resources of the parties was testimony to the effect that father had obtained free lawyer services and that mother was unemployed at the time of trial. This court stated: “Although present earnings are among the relevant factors to be considered in awarding attorney fees, a court must know what debt each party owes and what non-employment income each party has before it can determine either the need or ability to pay” and reversed mother’s award of attorney fees. Id.

In Geary, 697 S.W.2d at 321, the appellate court stated:

In most cases where the award of attorney’s fees is an issue on appeal, the finances of the parties are before the court, either for purposes of distributing marital property or awarding maintenance or child support. Such matters were not at issue here, and the court knew only that father was a sales manager for an insurance company and leased a home in an upper middle class neighborhood, and that mother worked as a sales representative. This evidence as to the parties’ financial resources was insufficient to support the award of attorney’s fees.

The court reversed and remanded the judgment. Id.

This case is similar to Geary in that the finances of the parties were not before the court. This was a modification to a dissolution decree; the only disputed issue was child custody. In the original judgment, neither party was ordered to pay child support, and neither party sought child support in the modification action. Because neither party sought child support, there was virtually no evidence of the parties’ financial resources. At trial, Mr. Al-berswerth submitted a Form 14, but clearly stated that he was not seeking child support, and the numbers listed on the Form 14 were not recited or questioned. The Form 14 submitted by Mr. Albers-werth states that the parent receiving support had a monthly income of $2,500 and the parent paying support had a monthly income of $2,978. It determined that the presumed child support amount was $508. Other than the Form 14, the only evidence of the parties’ financial resources was: testimony that Ms. Alberswerth was a schoolteacher and Mr. Alberswerth owned and operated a brickyard; Mr. Alberswerth’s testimony that he was quickly becoming a poor man; Mr. Alberswerth’s testimony that his finances had been strained the last year; Mr. Alberswerth’s testimony that he had to pay for the children’s sporting equipment, insurance, and Trace’s medication; and testimony that Trace Albers-werth stated his mother took or was taking all of his father’s money and that his father was poor.

Mr. Alberswerth’s assertions on his Form 14 of what each party’s income was is not sufficient information from which the court can consider the financial resources of both parties. Neither party’s debt was reflected, nor were Mr. Al-berswerth’s numbers corroborated or challenged by Ms. Alberswerth, probably because both parties considered child support to be a non-issue. While the dissolution action may have contained a great deal of information pertaining to the parties’ financial resources, that action occurred almost two years prior to the modification trial and the parties’ situation could have changed. As information regarding the parties’ financial resources was not available to the trial court, the trial court could not have considered this factor, and any award of attorney’s fees was improper.

On remand, if either party seeks attorney’s fees, information pertaining to the parties’ financial resources should be presented. Once it is in possession of this information, the trial court is instructed to consider it, as required by section 452.355. Only after considering the parties’ financial resources, may the trial court make an award of attorney’s fees.

As for the Guardian Ad Litem fees, section 452.423.5 provides that the court may, in its discretion, award Guardian Ad Litem fees as a judgment. Section 452.423 does not require that the financial resources of both parties be considered before awarding Guardian Ad Litem fees. A trial court’s award of Guardian Ad Litem fees will not be disturbed unless it was an abuse of discretion. Prewitt v. Hunter, 105 S.W.3d 874, 877 (Mo.App. E.D.2003). A trial court may consider the circumstances surrounding the appointment of a Guardian Ad Litem in determining how the Guardian Ad Litem’s fees should be paid. Stirling v. Maxwell, 45 S.W.3d 914, 916 (Mo.App. W.D.2001).

In the argument portion of -her brief, Ms. Alberswerth seems to complain that the Guardian Ad Litem did not folly perform her duties. She complains that neither the Guardian Ad Litem’s testimony nor the billing statement indicate that the Guardian Ad Litem visited Ms. Albers-werth’s house to ascertain the quality of the living circumstances there. Ms. Al-berswerth further states that the Guardian Ad Litem informed the court that she had consulted and interviewed the children’s teachers and yet one of Trace’s teachers testified that the Guardian Ad Litem had not contacted her. She also complains that the Guardian Ad Litem cross-examined her too thoroughly and did not cross-examine the other witnesses thoroughly enough.

Ms. Alberswerth’s contention that the Guardian Ad Litem failed to fulfill her duties is raised for the first time in the argument section of her brief and is not raised in her point relied on. An appellate court need not consider issues raised in the argument portion of a brief that are not raised in the point relied on. State v. Smith, 157 S.W.3d 687, 690 n. 3 (Mo.App. W.D.2004). This claim is not considered.

Ms. Alberswerth next claims that Guardian Ad Litem’s bill was presented without evidence to support it and should, therefore, have been rejected. Ms. Al-berswerth quotes the following language from In re Morrison, 987 S.W.2d 475, 480 (Mo.App. S.D.1999), as precedent for requiring the Guardian Ad Litem to provide evidence in support of a bill for services:

It is incumbent on a guardian ad litem to show the extent of necessary services and attorney’s fees rendered in regard to matters for which the Appellants, or either of them, could properly be responsible. Such evidence is necessary so that the trial court’s award may be based on evidence, and so that an appellate court may have a record to review in determining the propriety of the trial court’s discretionary action. As previously mentioned, the mere filing of' a document does not put it into evidence. Lack of a notice, a hearing, and any evidence on this issue requires us to reverse the award of Guardian Ad Li-tem’s fees.

She acknowledges, however, that the bill was presented and admitted without objection at trial after being folly and finally tabulated during the proceedings immediately prior to the close of trial.

Ms. Alberswerth did not raise in her point relied on the claim that the Guardian Ad Litem’s fees were not properly before the court and the claim was not raised at trial. Because the issue was not raised with the trial court, the issue has not been preserved for appeal. Schriner v. Edwards, 69 S.W.3d 89, 100-01 (Mo.App. W.D.2002). The dissimilarity of Morrison is evident, however, even in a cursory review of the claim ex gratia. In Morrison, the Guardian Ad Litem’s fee 1 statement was not admitted into evidence during trial; it was filed with the court after the trial had concluded. 987 S.W.2d at 480. In this case, the Guardian Ad Litem testified as to her hours, the statement was admitted into evidence .after both parties viewed the billing statement, and neither party objected to the billing statement, though they could have objected if they desired. Neither party questioned the Guardian Ad Litem regarding the number of hours she claimed to have been worked or her hourly rate. See, e.g., Prewitt, 105 S.W.3d at 877 (affirming judgment ordering payment of Guardian Ad Litem fees because Guardian Ad Litem testified as to the number of hours worked and appellant did not question the Guardian Ad Litem regarding his fees). The claim is without merit.

Ms. Alberswerth concludes that the imposition of attorney’s fees and Guardian Ad Litem’s fees was meant to be punitive and discourage her from seeking a modification in the future. This, too, is not raised in the point relied on. The claim is without merit, however. No evidence exists that the award of Guardian Ad Litem fees was meant to be punitive or to discourage Ms. Alberswerth from seeking a modification if a change in circumstances occurs.

Evidence supports the court’s award requiring that Ms. Alberswerth pay the full Guardian Ad Litem fees. The Guardian Ad Litem was appointed in response to Ms. Alberswerth’s allegations of abuse and neglect, which were not found to be true. Section 452.423.5 leaves the allocation of Guardian Ad Litem fees to the trial court’s discretion. The statute does not contain factors that must be considered or guidelines that must be followed when awarding attorney’s fees.

Cases affirming judgments requiring the non-alleging party to pay the fees are instructive. In Homfeld v. Homfeld, 954 S.W.2d 617, 624 (Mo.App. W.D.1997), the trial court ordered both mother and father to pay a portion of the Guardian Ad Litem fees. Father argued on appeal that this was error because the Guardian Ad Litem was appointed due to mother’s allegations about the father and child. Id. This court affirmed the judgment. Id. It observed that, while a trial court must appoint a Guardian Ad Litem pursuant to section 452.423.2 if allegations of abuse or neglect are asserted, a trial court may appoint a Guardian Ad Litem pursuant to section 452.423.1 in dissolution cases where custody, visitation, or child support is at issue and those issues were present in the case. Id. As a Guardian Ad Litem was properly appointed under section 452.423.1 and because section 452.423.5 allowed the court to order payment of the fees by one or both parties, the judgment was not an abuse of discretion. Id. Thus, once a Guardian Ad Litem is appointed, whatever the reason, the trial court may order one or more of the parties to pay the fees. The Guardian Ad Litem was properly appointed and the trial court ordered Ms. Alberswerth to pay her fees. That decision is within the trial court’s authority and, given that Ms. Alberswerth allegations were not found to be true, does not shock the conscience of the court. There was no abuse of discretion.

Ms. Alberswerth alludes to the argument that she is financially unable to pay the fees. This is not raised in her point relied on and need not be considered by this court. Nonetheless, this issue is also deemed without merit upon review. Financial inability to pay is not a defense to a judgment requiring payment of Guardian Ad Litem fees. See, e.g., In re Reeder, 946 S.W.2d 1, 5-6 (Mo.App. W.D.1997)(/«dpmera£ requiring mother to pay portion of Guardian Ad Litem fees affirmed, despite mother’s claim she was financially unable to do so). Cases appearing to hold otherwise are distinguishable. In Dutton v. Dutton, 668 S.W.2d 585, 592 (Mo.App. E.D.1984), the appellate court determined that a judgment requiring mother to pay a portion of the Guardian Ad Litem fees was an abuse of discretion because of the large difference in incomes between mother and father. The court noted that mother earned approximately $800 per month in income while father earned approximately $2,700 per month in income. Id. Due to the difference in income, the appellate court stated “[u]nder these circumstances, neither party should be required to bear the other’s attorney fee, and [mother] should not be expected to contribute to the payment of the guardian ad litem fee.” Id. This case is not binding, though. At the time this case was decided, section 452.423 had not yet been enacted. The Dutton court applied section 452.355, which applies to attorney’s fees and, as noted, supra, explicitly instructs the court to consider the financial resources of the parties and used that statute to resolve both the award of attorney’s fees and Guardian Ad Litem fees. Section 452.423 was enacted in 1988 and now governs payment of Guardian Ad Litem fees in dissolution proceedings; section 452.423 does not require consideration of the parties’ financial resources. Thus, Ms. Al-berswerth’s claims of financial inability to pay do not render the court’s judgment an abuse of discretion.

The point is granted as to attorney’s fees and denied as to the Guardian Ad Litem fees.

Point IV

In her fourth point on appeal, Ms. Al-berswerth argues that the trial court erred when it admitted as evidence the medical log, notes, and records of Dr. Kevin Mays, Trace Alberswerth’s treating psychiatrist since June of 2002. Ms. Alberswerth contends that these records should not have been admitted because they were hearsay because Mr. Alberswerth identified Dr. Mays as a witness only fifteen days before trial and because they were admitted in violation of the trial court’s pretrial rulings.

On June 8, 2004, trial was scheduled for September 17, 2004. On September 1, 2004, Ms. Alberswerth received notification that Mr. Alberswerth would call Dr. Kevin Mays at trial as an expert witness and that his deposition was scheduled for September 8, 2004. Dr. Mays was Trace Alberswerth’s treating psychologist. On September 2, 2004, the next day, Ms. Al-berswerth filed several motions with the trial court. One of the motions was a Motion to Strike Expert Witness Opinion and Testimony. In this motion, Ms. Al-berswerth complained that neither she nor her attorney had been consulted when the deposition date and time was set. She further complained that Dr. Mays had been identified as an expert witness in an untimely manner and that identifying him as a witness so close to the trial date was unfair and prejudicial. She indicated she would need time to investigate Dr. Mays and to locate counter expert witnesses if necessary. Ms. Alberswerth also filed a Motion to Quash Depositional Notices, including the depositional notice for Dr. Mays. The last relevant motion Ms. Al-berswerth filed was a Motion in Limine, which sought to prevent the appearance of Dr. Mays and any anticipated opinion or testimony to be elicited from him at trial. As to these motions, the trial court’s docket sheet states:

Respondent’s Motion to Strike Expert Witness Opinion and Testimony is granted but the court will allow Dr. Mays’ testimony as to explaining information contained in medical reports previously provided to counsel.
Respondent’s Motion Quash depositional Notices is Granted
Respondent’s Motion in Limine is denied.

The docket entry is the only evidence in the record of how the court ruled with respect to these motions.

Before trial, the parties agreed to the admittance into evidence of a letter from Dr. Mays, dated September 9, 2004, regarding the medications Trace Albers-werth was taking, his behavioral response, and the increasing aggression adolescent males may experience. That letter was admitted into evidence without objection. The letter described the various medications and dosages Dr. Mays had prescribed, the changes in medications, and Trace Alberswerth’s behavioral responses to the medications and change in medications. In addition, portions of Dr. Mays’ records were admitted, over Ms. Albers-werth’s objections. Ms. Alberswerth was sent a copy of these records on September 9, 2004, pursuant to section 490.692. Ms. Alberswerth contends that, by allowing the medical logs to be admitted, the trial court, in effect, allowed Dr. Mays to testify in absentia.

The trial court granted Ms. Albers-werth’s Motion to Quash Depositional Notices and Ms. Alberswerth does not contend that Dr. Mays’ deposition was taken. Thus, this motion is not at issue. Instead, Ms. Alberswerth claims that admitting the medical logs into evidence was contrary to the court’s granting of her Motion to Strike Expert Witness Opinion and Testimony.

The Motion to Strike Expert Witness Opinion and Testimony and the Motion in Limine were similar. Both the Motion to Strike Expert Witness Opinion and Testimony and the Motion in Limine sought to prevent Dr. Mays from rendering an expert opinion or testifying. Both motions also cited the same reasons for the request — namely, that Dr. Mays was not timely disclosed as an expert witness. In essence, the motions were identical, with different labels. “In limine” is defined as “in or at the beginning” and a motion in limine is traditionally used as a way of suppressing testimony or evidence at the beginning of litigation. Rhodes v. Blair, 919 S.W.2d 561, 563 (Mo.App. S.D.1996). When objecting at trial to the admission of the medical records, Ms. Alberswerth objected because the issue of the admissibility of the medical records “was previously addressed and covered in the Motion in Limine that was argued in this case.” She, too, referred to the Motion to Strike Expert Witness Opinion and Testimony as a motion in limine. The Motion to Strike Expert Witness Opinion and Testimony was also a motion in limine.

The trial court conditionally granted the Motion to Strike Expert Witness Opinion and Testimony, but denied the Motion in Limine. An in limine ruling is a preliminary expression of the court’s opinion regarding the admissibility of the evidence at issue. Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App. E.D.1998). “The trial court is not bound by its in limine ruling and may admit the evidence when offered at trial.” Id. Thus, an order sustaining a motion in limine and excluding evidence is an interlocutory order and is subject to change by the trial court during the course of the trial; the trial court is free to alter its pretrial ruling and admit the evidence. Smith v. Associated Natural Gas Co., 7 S.W.3d 530, 536 (Mo.App. S.D.1999); Choate v. Natvig, 952 S.W.2d 730, 733 (Mo.App. S.D.1997). The trial court Motion to Strike Expert Witness Opinion and Testimony was a motion in limine and the trial court could reverse its ruling at trial.

The question now considered is whether the trial court erred in and abused its discretion by admitting the medical logs at trial without considering the conditionally granted Motion to Strike Expert Witness Opinion and Testimony. Ms. Alberswerth states in her point relied on that the records were hearsay and improper given the untimely disclosure of Dr. Mays as an expert witness. These contentions are not addressed in the argument portion of her brief, which focuses solely on the fact that the trial court acted inconsistently- with its pretrial ruling, and are abandoned, State v. Massey, 156 S.W.3d 789, 790 (Mo.App. W.D.2005), but are considered ex gratia.

The admissibility of evidence is within the discretion of the trial court and the trial court’s decision is reviewed for an abuse of discretion. Legg v. Certain Underwriters at Lloyd’s of London, 18 S.W.3d 379, 386 (Mo.App. W.D.1999). There has been an abuse of discretion when the trial court’s ruling is so unreasonable and arbitrary that it shocks the sense of justice and is clearly against the logic of the surrounding circumstances. Eltiste v. Ford Motor Co., 167 S.W.3d 742, 757 (Mo.App. E.D.2005). If. reasonable people could disagree about the propriety of the trial court’s judgment, it cannot be said there was an abuse of discretion. Zimmer v. Fisher, 171 S.W.3d 76, 79-80 (Mo.App. E.D.2005).

“Errors regarding the admission or exclusion of evidence will result in reversal only if there is substantial and glaring injustice.” Legg, 18 S.W.3d at 386 (internal citations and quotation marks omitted). ‘When reviewing matters involving admission of evidence, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial as to deprive the defendant of a fair trial.” State v. Moore, 88 S.W.3d 31, 36 (Mo.App. E.D.2002). An error in the admission of evidence is prejudicial if it affects the result or outcome of the trial. Riley v. Union Pacific R.R., 904 S.W.2d 437, 443 (Mo.App. W.D.1995).

Missouri trial courts are vested with broad discretion in administering the rules of discovery and an appellate court will not disturb the trial court’s ruling absent an abuse of discretion. Id. at 446. Additionally, examination of a witness whose name has not been disclosed, despite being requested, is a matter resting within the sound discretion of the trial court. Id. “In unusual cases, that discretion has even extended to the point of allowing the examination of a witness whose name, though requested, was not disclosed, where there was an opportunity for an overnight deposition.” Gantt v. Baldwin, 927 S.W.2d 957, 960 (Mo.App. W.D.1996). See also Riley, 904 S.W.2d at 443 (affirming trial court’s decision to not strike witnesses identified four days before trial, despite adverse party’s objection that he lacked sufficient time to depose the identified witnesses).

In this case, Dr. Mays was disclosed as a witness sixteen days before trial. Ms. Alberswerth claims this was untimely. Missouri cases have held that “[u]ntimely disclosure of an expert witness’ identity is so offensive to the underlying purposes of the discovery rules that prejudice may be inferred.” Bacon v. Uhl, 173 S.W.3d 390, 398 (Mo.App. S.D.2005). The rule that prejudice may be inferred, however, does not mean that prejudice must be inferred. The stipulated letter describes the medication names and quantities Trace Alberswerth was taking and the effects on his behavior. It describes the different combinations of medication types and quantities that were tried and their impact on Trace Alberswerth’s behavior. The medical logs admitted consist of a medication log, which lists the date, name of the medication, dosage, and any refills and of a log with the date and any notes regarding the medication and a handwritten log describing Trace’s reaction to medication as relayed to Dr. Mays or his staff by Trace or his parents. Much of this second log is not legible, and what can be read is not harmful to either parent. It merely states Trace’s behavior and other reactions in response to the changes in medication. The contested medical logs are not prejudicial to either party. The court knew that Trace Alberswerth had certain behavioral problems and was taking medication for those problems. The medical logs neither incriminate nor place blame on one parent as opposed to the other; they merely state the medication prescribed and the behavioral response to the medication. An in-depth investigation into Dr. Mays’ background or the securing of counter expert witnesses was unnecessary as there was nothing harmful to counter. As far as Dr. Mays’ identity as an expert witness is concerned, the untimely disclosure was not prejudicial and the trial court did not abuse its discretion in allowing their admittance at trial.

Neither was the medical logs inadmissible hearsay. Hearsay is an out of court statement made by someone not before the court that is offered to prove the truth of the matter asserted. State v. Larson, 941 S.W.2d 847, 854 (Mo.App. W.D.1997). Hearsay is not admissible at trial unless an exception to the hearsay rule applies; one of the exceptions is the business records exception. Id.

Section 490.680 sets forth the requirements for a document to be admitted under the business record exception to the hearsay rule. The requirements are that the custodian testifies to its identity and mode of preparation, that it was made in the course of business at or near the time of the event, and that the court determines the sources of information, method, and time were such so as to justify admission of the records. C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 138 (Mo.App. S.D.2004). “Thus, the ‘bottom line’ regarding the admissibility of the business records is the discretionary determination by the trial court of their trustworthiness.” Id. A trial court is afforded broad discretion in determining whether the parties complied with section 490.680. State v. Williamson, 836 S.W.2d 490, 497 (Mo.App. E.D.1992).

Professional records of medical doctors are within the purview of section 490.680 and, upon proper identification and qualification, are admissible into evidence. Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 681 (Mo. banc 1959). Verification from all persons who contributed to the business records is not necessary. Id. at 682.

Section 490.692 allows the records to be admitted without the custodian having to appear in court. Somogyi, 136 S.W.3d at 138. It allows certified copies of business records to be admitted at trial if all parties are served with the records and a certifying affidavit at least seven days before trial. State v. Calhoon, 7 S.W.3d 494, 495 (Mo.App. W.D.1999). The business records exception to the hearsay rule allows qualified records to be introduced as evidence without the person who prepared the records having to personally appear in court. Id. All business records, including medical records, may be admitted under section 490.692, if they comply with it and section 490.680. See, e.g., State v. Goodson, 943 S.W.2d 239, 240 (Mo.App. E.D.1997). Even under section 490.692, “the court’s decision whether to admit the business records remains a discretionary determination of the trustworthiness of the records.” Somogyi, 136 S.W.3d at 138.

Ms. Alberswerth was sent a copy of the contested medical records on September 9, 2004, pursuant to section 490.692. Ms. Alberswerth does not claim that Mr. Al-berswerth failed to comply with section 490.680 or 490.692. The trial court determined that the medical records were trustworthy and that determination was not an abuse of discretion.

Section 490.692.2 requires that the records and affidavit be served at least seven days prior to trial. The certificate of service states that the business records and affidavit were sent to Ms. Alberswerth on September 9, 2004. The affidavit indicates it was sworn on September 10, 2004, however. If it was sworn on September 10, 2004, it would fail to comply with the seven day requirement as trial was had on September 17, 2004. This court need not determine which date is accurate, however, as, even if the seven day notice was not complied with and admission of the medical records was error, it was not prejudicial. “To warrant reversal, improperly admitted evidence must have prejudiced the defendant. Unless the error materially affects the merits of the action, the judgment should not be reversed.” Larson, 941 S.W.2d at 854. The point is denied.

Conclusion

The judgment is reversed and remanded with instructions for the trial court to make the findings required by section 452.375.6 and to obtain information regarding both Mr. and Ms. Alberswerth’s financial resources as required by section 452.355.1 if an award of attorney’s fees is made. All other aspects of the judgment are affirmed.

All concur.

      . Neither primary residential custody nor primary physical custody are "among the four types of custody dispositions recognized by § 452.375.5, which are: (1) joint physical custody; (2) sole physical custody; (3) third-party custody; and (4) visitation.” In re Marriage of Swallows, 172 S.W.3d 912, 913 n. 1 (Mo.App. S.D.2005). Given that the children's time was divided fairly evenly between Mr. and Ms. Alberswerth, the trial court appears to have awarded each party joint physical custody. Both parties agree with this characterization.

      . As noted, primary physical custody is not among the four custody dispositions recognized by section 452.375.5.

      . Neither the original judgment nor the modification judgment explicitly state what form of physical custody is awarded to Mr. and Ms. Alberswerth. In the original judgment, as noted in footnote 1, the court awarded Mr. Alberswerth sole legal custody and primary residential custody, but otherwise merely set forth each party’s parenting time with the children. Both parties agree that the original judgment awarded them joint physical custody and the details of the arrangement are consonant with that interpretation. Section 452.375.1(3) defines joint physical custody as an arrangement where each parent is awarded "significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervisions of each of the parents.” The original judgment awarded both Mr. and Ms. Alberswerth significant periods of time with the children, an arrangement consistent with the definition of joint physical custody.
      The modification judgment also fails to explicitly state whether the trial court modified the judgment to award: (1) Mr. and Ms. Al-berswerth joint physical custody with different allocations of parenting time or (2) Mr. Alberswerth sole physical custody. The modification judgment, again, merely sets forth each party’s parenting time with the children. Both Mr. and Ms. Alberswerth label the modified arrangement an award of sole physical custody to Mr. Alberswerth. The fact that the trial court used the term "parenting time” rather than "visitation” may indicate an intention to order joint custody.
      The term sole physical custody is not defined by section 452.375.1. "Given the definition of joint physical custody, however, sole physical custody would logically encompass custodial arrangements in which one of the parents is not awarded significant periods of custodial time.” Timmerman v. Timmerman, 139 S.W.3d 230, 234 (Mo.App. W.D.2004)(quotation marks omitted). If a parent is awarded sole physical custody, the other parent is awarded visitation; if both parents have joint physical custody, neither parent is awarded visitation. Id. "What constitutes significant periods of custodial time for purposes of joint physical custody is not defined but left for the trial court's determination.” Id.

      Whether the court awarded sole or physical custody does not impact the analysis in this opinion, but it has significant ramifications for the future. If the custodial arrangement is designated as one of joint physical custody, a parent must show a change in circumstances and that modification is in the child's best interests before a modification of parenting time may be allowed; if the custodial arrangement is designated as one where one parent has sole physical custody and the other parent has visitation, the visitation arrangement may be modified upon only showing that the modification is in the child’s best interests. Id. at 236.
      As it is clear that the original award was one of joint physical custody, there is no uncertainty regarding the standard for modification of that original award. Should either parent seek to modify the current award of custody, the trial court will have to determine which modification standard is proper. That is not an issue this court must address at this time, however.

      . Effective January 1, 2005, Rule 78.07(c) requires that in "all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” This rule was not in effect at the time ■ the modification judgment was issued.

      . All citations to section 452.375 are to § 452.375, RSMo Cum.Supp.2004.

      . The eight statutory factors found in section 452.375.2 are:
      (1)The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
      (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
      (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
      (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
      (5) The child’s adjustment to the child’s home, school, and community;
      (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
      (7) The intention of either parent to relocate the principal residence of the child; and

        (8) The wishes of a child as to the child’s custodian.

      . Section 452.375.4 states:
      The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

      . She notes that she brought this to the court's attention in a timely post-trial motion. She further notes that Mr. Alberswerth addressed the potential problem of inadequate findings in his post-trial motion asking the court to correct clerical errors. Instead of amending the judgment to include additional findings, the trial court left the modification judgment unaltered.

      . All citations to section 452.355 are to § 452.355, RSMo 2000.
      Section 452.355.1 states in relevant part:
      Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the. pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.

      . Ms. Alberswerth prayed for child support in her Motion to Modify Judgment of Dissolution of Marriage. This was not pursued at trial, however, as she did not submit a Form 14 for the court’s review.

      . Mr. Alberswerth states that considerable evidence was presented at trial that “Dad is poor.” This is a gross exaggeration, and Mr. Alberswerth fails to cite any portion of the record in support of this assertion.

      . Mr. Alberswerth never indicated how much money he spent on these items.

      . All citations to section 452.423 are to § 452.423, RSMo Cum.Supp.2004.
      Section 452.423.5 states:
      5. The guardian ad litem shall be awarded a reasonable fee for such services to be set by the court. The court, in its discretion, may:
      (1) Issue a direct payment order to the parties. If a party fails to comply with the court’s direct payment order, the court may End such party to be in contempt of court; or
      (2) Award such fees as a judgment to be paid by any party to the proceedings or from public funds. Such an award of guardian fees shall constitute a final judgment in favor of the guardian ad litem. Such final judgment shall be enforceable against the parties in accordance with chapter 513, RSMo.
      Section 452.423.2 states:
      The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.

      . The Guardian Ad Litem interviewed several people, including both parents and both children, did a home visit with Mr. Albers-werth, appeared at depositions, reviewed evidence before trial, and actively participated in the trial. Ms. Alberswerth asserts in her brief that the Guardian Ad Litem’s remarks and witness examinations account for 77 pages of the 385, page transcript. This is not an insignificant portion of the transcript and indicates the Guardian Ad Litem was an active participant in the trial.

      . An exception is if the party is represented by legal aid or another nonprofit organization. See § 514.040.3.

      . The statutory findings this court is instructing the trial court to make in Point I have no bearing on this point and the fact that the judgment is remanded in order for those findings to be made does not preclude the award of Guardian Ad Litem fees from being affirmed.

      . Dr. Mays was to testify, as Trace’s treating psychologist, regarding the medications Trace was prescribed and his behavioral responses to those medications. He was to testify, as an expert witness, regarding the aggressive behaviors adolescent males typically exhibit and the expected side effects of the medications Trace was prescribed.

      . All citations to section 490.692 are to § 490.692, RSMo 2000.

      . The certificate of service, Mr. Albers-werth’s brief, and the Motion to Strike Expert Witness Opinion and Testimony filed by Ms. Alberswerth state that Ms. Alberswerth received notice on September 1, 2004. In her brief, Ms. Alberswerth states she did not receive notice until September 2, 2004. It seems likely that notice was sent on September 1, but a one day discrepancy has no impact on our conclusion.

      . All citations to section 490.680 are to § 490.680, RSMo 2000.


text:
    STATE of Missouri, Respondent, v. Pythian JEFFRIES, III, Appellant.
    No. ED 85759.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 7, 2006.

      Gwenda Renee Robinson, Lisa M. Stroup, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Defendant, Pythian Jeffries, appeals from the judgment upon his convictions by a jury for domestic assault in the second degree, a class C Felony, Section 565.073, RSMo 2000, and domestic ássault in the third degree, a class A misdemeanor, Section 565.074, RSMo 2000, for which Defendant was sentenced as a prior and persistent offender to seven years’ imprisonment for domestic assault in the second degree and a concurrent sentence of ninety days for the domestic assault in the third degree. Defendant contends the trial court plainly erred by permitting the State to introduce evidence of previous acts of misconduct that he allegedly committed.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).