author: THOMAS H. NEWTON, Judge.

text:
    Kory A. WELCH, Appellant, v. Eli CONTRERAS, et al., Respondents.
    No. WD 64832.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.

      James E. Kiley, Jr., Overland Park, KS, for appellant.
    David M. Druten, Overland Park, KS, for respondents.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART and THOMAS H. NEWTON, JJ.

      . On appeal, PMC sought to supplement the legal file with jury instructions from the Kansas litigation. We denied the request, and when PMC referred to the Kansas verdict and the jury instructions in its response, Ms. Welch sought to strike the response. While we denied her motion, we indicated that we would not consider "any statements or arguments in Respondents’ brief that reference matters outside the record on appeal.” Thus, we will consider the merits of the appeal without reference to the fact that the Kansas litigation was concluded in Ms. Welch’s favor.

      . See Blasinay v. Albert Wenzlick Real Estate Co., 235 Mo.App. 526, 138 S.W.2d 721, 725 (1940) (servant or agent can be held liable in his own right for his misfeasance or wrongful act).

   THOMAS H. NEWTON, Judge.

Ms. Kory A. Welch appeals a circuit court judgment dismissing her case with prejudice, claiming that she neither improperly split her cause of action nor violated the pending action doctrine or section 509.290.1(8), because the parties to her Missouri action were not the same parties to a similar action previously filed in Kansas. We affirm in part and reverse in part.

In January 2003 Ms. Welch filed an action in a Kansas state court against Mr. Eli Contreras, Producers Mortgage Corporation (PMC), John Doe(s) 1-5, and a number of other defendants. The case was removed to federal court and then remanded back to state court. While the case was pending in federal court, Ms. Welch filed a first amended complaint that inadvertently omitted Mr. Contreras as a defendant. A magistrate judge refused to allow Ms. Welch to file a second amended complaint to restore Mr. Contreras as a defendant, because he had not been timely served when the case had initially been removed. Hence, he was not a party to the Kansas action when Ms. Welch filed substantially similar claims against him and PMC in May 2004 in Platte County, Missouri.

Both lawsuits arose out of alleged misconduct on the part of Mr. Contreras and other PMC employees in a mortgage refinance transaction that involved Ms. Welch and her former husband and property they owned in Kansas. Mr. Contreras, a Platte County, Missouri, resident, was a mortgage loan officer trainee for PMC. In the Missouri action, Ms. Welch sought to hold him liable for breaching his fiduciary duties as an agent and employee of PMC; in both actions she sought to hold PMC liable under respondeat superior for its employees’ conduct.

The Kansas lawsuit, after the federal-based claims were dismissed, contains counts for fraud, negligence, civil conspiracy, defamation, and violation of the Kansas Consumer Protection Act. The Missouri lawsuit contains counts for fraud, negligence, civil conspiracy, defamation, and violation of the Missouri Merchandising Practices Act. Ms. Welch’s plea for damages under each count in the Missouri lawsuit is linked to recovery available under this Missouri statute. The counts in the Kansas action stand alone with respect to Ms. Welch’s claims for damages.

PMC and Mr. Contreras filed a motion to dismiss the Missouri lawsuit, claiming that the “pending action doctrine,” section 509.290.1(8), and an impermissible splitting of the cause of action barred Ms. Welch’s suit. The circuit court granted the motion, and this appeal followed. Ms. Welch claims that the doctrines which defendants invoked do not apply to cases involving different parties and that Mr. Contreras was never a party to the Kansas action because he was never served with process. Responding to her claims, defendants further contend that the doctrines of res judi-cata, respondeat superior, and collateral estoppel also apply to bar the Missouri litigation, because the Kansas matter was tried to a verdict on its merits, while this appeal has been pending. Because this contention refers to matters outside the legal record, we will not consider it further.

The parties state that the appropriate standard of review for the grant of a motion to dismiss is de novo and is guided by whether the petition “invokes principles of substantive law.” Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 409-10 (Mo.App. W.D.2000). Because the disposition of defendants’ motion to dismiss required the consideration of matters extraneous to the pleadings, the motion was actually a motion for summary judgment, and it should have been treated as such. Chaney v. Cooper, 954 S.W.2d 510, 515 (Mo.App. W.D.1997). Our review continues to be de novo, and we will affirm the circuit court’s grant of the motion if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Id.

There are no genuine issues of material fact. There is no dispute that Ms. Welch filed a lawsuit in Kansas against PMC and other defendants arising out of a mortgage refinance transaction. Nor do the parties dispute that the Missouri lawsuit, also arising out of the same mortgage refinance transaction, was subsequently filed against PMC and a person who was not a party to the Kansas lawsuit. Moreover, there can be no dispute that the tort claims in each lawsuit are based on the same legal theories, i.e., fraud, negligence, civil conspiracy, defamation, and violation of consumer protection legislation. The first prong of our summary judgment review has accordingly been met.

Section 509.290 sets forth objections that may be raised by motion. Under subsection 1(8), a party may object “[t]hat there is another action pending between the same parties for the same cause in this state.” This section is inapplicable because the previously filed action was not filed in Missouri.

Similarly, the “pending action doctrine,” otherwise referred to as abatement, does not apply to cases pending concurrently by the same parties in the courts of different states. Jewell v. Jewell, 484 S.W.2d 668, 674 (Mo.App.1972). Rules of comity, however, do apply, “and parallel results should normally be expected.” Id. Thus, where courts in two different states have coordinate jurisdiction, the one whose jurisdiction first attaches retains it and proceeds to final judgment regardless of any action taken by the other court. Id. See also Grey v. Indep. Order of Foresters, 196 S.W. 779, 783-84 (Mo.App.1917) (Missouri court did not err in refusing to recognize binding force of Canadian court judgment where parties’ dispute was first submitted to Missouri court’s jurisdiction). Comity and the duty to recognize the validity and effect of court proceedings in a foreign jurisdiction are not regarded as absolute rights, but are rather self-imposed restraints. Id. at 783. Thus, we cannot say as a matter of law, under principles of comity, that PMC was entitled to dismissal of the Missouri action. Nor, as a matter of judicial discretion, would this be an appropriate basis on which to affirm a motion for summary judgment. Chaney, 954 S.W.2d at 515.

Defendants also claim that Ms. Welch impermissibly split her cause of action. The Eastern District has established the principle that a plaintiff may not split her cause of action and try a single claim against different defendants seriatim. State ex rel. Todd v. Romines, 806 S.W.2d 690, 692 (Mo.App. E.D.1991); Hagen v. Rapid Am. Corp., 791 S.W.2d 452, 455 (Mo.App. E.D.1990). No authority is cited for this principle other than “our rules.” Hagen, 791 S.W.2d at 455. In apparent contrast, our supreme court has stated, “The rule against splitting a cause of action applies only where the several causes of action are between the. same parties.” Lee v. Guettler, 391 S.W.2d 311, 313 (Mo.1965) (quoting 1 C.J.S. Actions, § 102. p. 1312). In Lee a husband and wife brought separate actions for personal injuries arising out of an auto accident against one defendant. Id. at 312. Their actions were dismissed because they had previously filed a joint action against the same defendant for damages to their car arising out of the same collision that had allegedly caused their personal injuries. Id. The supreme court reversed, determining that the “joint action of a husband and wife for damage to their jointly owned property is a separate and distinct action from the separate action each has a right to maintain for his or her own personal injuries.” Id. at 313.

If we apply the test that is used to determine whether a cause of action is single and cannot be split, the result in Lee makes sense. That test is (i) “whether the separate actions brought arise out of the same act, contract, or transaction”; or (ii) “whether the parties, subject matter, and evidence necessary to sustain the claim are the same in both actions.” Nicholson Constr. Co. v. Mo. Hwy. & Transp. Comm’n, 112 S.W.3d 6, 10 (Mo.App. W.D. 2003). Clearly, the evidence necessary to sustain claims for property damage and personal injury are different, and joint chattel owners have interests that differ from individuals with personal injuries.

In our case, one plaintiff has sued multiple parties, including PMC, in Kansas. In Missouri, the same plaintiff has sued PMC and an employee omitted from her action in Kansas. The transaction is the same, the subject matter is the same, the legal theories are virtually the same, and the evidence needed to sustain the claims is exactly the same. PMC was sued in both actions under respondeat superior for the conduct of its employees, including Mr. Contreras. And while Ms. Welch has the right to file a lawsuit against Mr. Contreras in Missouri, she clearly cannot bring the same lawsuit twice against PMC. See Bagsby v. Gehres, 139 S.W.3d 611, 616 (Mo.App. E.D.2004) (court finds cause of action split even where previously filed suit involved eleven defendants and case at bar involved only one of the eleven); McCrary v. Truman Med. Ctr., 943 S.W.2d 695 (Mo.App. W.D.1997) (strict liability claims against hospital for surgery and implant dismissed as improper splitting of cause of action where previous suit alleged medical malpractice against hospital and dentist for same surgical procedure). As noted by the court in Hutnick v. Beil, 84 S.W.3d 463, 465 (Mo.App. E.D.2002), there are “sound policy reasons for prohibiting a party from splitting a cause of action.” Among those reasons is the protection of defendants from the harassment of a multiplicity of lawsuits on the same cause of action or claims. Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7,11 (1948).

Ms. Welch split her cause of action as to PMC. Thus, PMC was entitled to judgment in its favor as a matter of law. Chaney, 954 S.W.2d at 515. As for Mr. Contreras, Ms. Welch may proceed with the lawsuit against him. We reverse in part, affirm in part and remand for further proceedings.

VICTOR C. HOWARD, P.J., and JAMES M. SMART, J., concur.

      . Unless otherwise indicated, all statutory references are to RSMo (2000).

      . Ms. Welch claims in her suggestions in opposition to respondents’ motion to supplement legal file that PMC is named in the Missouri case under respondeat superior "solely in regard to the conduct of Mr. Contreras.” Whereas, in the Kansas action, states Ms. Welch, PMC is named under respondeat superior for the conduct of the different defendants named therein. The civil conspiracy claim in the Missouri pleading, however, does allege that PMC is liable under respondeat superior for the purported fraudulent conduct of employees and agents in addition to Mr. Contreras. And those employees and agents were defendants in the Kansas action.

      .PMC and Contreras did not attach the Kansas pleadings to their joint and separate answer to Ms. Welch’s Missouri petition. Instead, documents from the Kansas litigation were attached to defendants' memorandum of law in support of their motion to dismiss or stay.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roy VANCE, Appellant Pro Se, v. STATE of Missouri, Respondent.
    No. WD 64826.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.
    Roy D. Vance, Mineral Point, MO, pro se.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Roy Vance appeals the motion court’s judgment dismissing his Rule 29.15 post-conviction relief motion.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Brendan D. SEWELL-DAVIS by His Next Friend Russell E. Davis, and Russell E. Davis, Individually, Respondent, v. Jennifer Sewell FRANKLIN, Appellant.
    No. WD 64710.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.

      Edward Leon Campbell, Kirksville, MO, arguing on behalf of appellant.
    Howard Madison Hickman, Kirksville, MO, arguing on behalf of respondent.
    Before JAMES M. SMART, JR., P.J., HAROLD L. LOWENSTEIN, and LISA WHITE HARDWICK, JJ.
   PER CURIAM.

Jennifer Sewell Franklin (Mother) appeals the trial court’s judgment that awarded her joint physical and joint legal custody of her biological child, Brendan, with the child’s biological father, Russell E. Davis (Father), and designated Father’s as the child’s primary residence.

Brendan was born in November 2000. He has cerebral palsy. Brendan’s parents, who have never been married, lived together intermittently both before and after his birth. The couple separated for the final time in January 2003, when Brendan was just a little over two years old.

Father brought a petition seeking a declaration of paternity, custody, and support. A bench trial was held, and the court entered judgment in July 2004. The court determined that Brendan was Father’s biological child and awarded joint legal and joint physical custody to the parties. The court adopted Father’s proposed parenting plan and designated his residence as the child’s primary residence. The court awarded Mother specific periods of custody and ordered her to pay child support.

On appeal, Mother alleges four instances of trial court error. We remand for additional findings.

Standard of Review

As in other court-tried cases, we will affirm the trial court’s judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Loumiet v. Loumiet, 103 S.W.3d 332, 335-36 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The trial court is afforded broad discretion in awarding child custody, and we will affirm its decision unless we are firmly convinced that the welfare of the child requires a different disposition. Id. at 336.

Lack of Findings on Custody

In her first point, Mother argues that the trial court erred in failing to make specific findings with regard to its decision to award joint physical and legal custody to the parties. Mother says the court was required under section 452.875.6, RSMo, to make specific findings because the parties faded to agree as to custody and because the court rejected Mother’s proposed custody arrangement.

Where the parties have not agreed to a custodial arrangement, section 452.375.6 requires the court to include written findings in the judgment based on the public policy set forth in section 452.375.4. The court is to consider all relevant factors, including the factors listed in section 452.375.2(l)-(8). See § 452.375.6. In view of the public policy of the State that children should have “frequent, continuing and meaningful contact with both parents,” if the parties have not agreed to a custodial arrangement, the court shall include a finding as to the matter of frequent, eon-tinuing and meaningful contact with the parents, and also a finding detailing the specific relevant factors that made a particular arrangement in the best interest of the child. § 452.375.6. Subsection .6 further provides that such findings must be made if the court rejects a proposed custodial arrangement offered by both parents.

With regard to the section 452.375 findings, the trial court in this case stated only that “[e]ach of the applicable and relevant factors in subdivision 1-8 as set forth at § 452.375.2 were duly considered in accordance with the best interest of the child.” The court did not make a finding as to the need to promote frequent, meaningful contact with both parents; nor did the court refer to or describe the factors it determined to be relevant.

According to Mother, while Father had requested joint physical and legal custody, she was seeking sole physical custody and joint legal custody. Mother submitted a proposed judgment and parenting plan in which she requested joint legal custody and “primary physical custody.” Although Mother inadvisedly used the term “primary physical custody,” she actually, she says, was requesting “sole physical custody.” She points out that she clearly and specifically asked for sole physical custody at trial.

Father says the court was not required to make specific findings under section 452.375.6, because the parties did agree as to the custodial arrangements, but only disagreed about the actual parenting time (i.e., visitation time) and the primary residence. He argues that Mother’s plan, in essence, was for joint physical and legal custody, with hers designated as the primary residence. Father suggests that both parties were seeking joint physical custody because the parenting plans contained similar schedules, with schedules reversed as to the respective parents.

Father relies upon Simon-Harris v. Harris, 138 S.W.3d 170, 178 (Mo.App. 2004), for the proposition that where parties have agreed to joint physical custody but only disagree as to the division of parenting time, the court is not required to make the findings required by section 452.375.6. Because we have a contest of semantics, it is not clear that Simon-Harris applies here. Despite the ambiguity of Mother’s proposed judgment and parenting plan, she did, at trial, in fact ask for sole physical custody. In any event, the semantic contest may be irrelevant. In Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005), the parties had agreed on joint physical and legal custody, but they did not agree on the residence address for the child or on a parenting plan. Id. The Court said:

While these may be sub-issues of custody, they were contested and required the court’s resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required.

Id. The Supreme Court reversed the judgment and remanded the case for findings.

Buchanan governs this case. Father acknowledges that the parties did not agree on the parenting plan, the visitation arrangements, or the child’s primary residence. Thus, as in Buchanan, the trial court was mandated by section 452.375.6 to make findings based on the public policy set forth in section 452.375.4 and the specific relevant factors that made the custody arrangement in the child’s best interests.

The judgment is reversed, and we remand to the trial court with instructions to make those mandatory findings.

Ex Parte Communications

Mother next argues that the trial court erred in failing, sua sponte, to recuse itself or to grant her request for a new trial on the basis of the court’s inappropriate ex parte communications with Father and Father’s attorney on the day of trial.

At a hearing on Mother’s motion for new trial, Mother presented two witnesses who both testified that they witnessed an ex parte communication between the trial judge, Father, and Father’s attorney in the hallway on the day of trial. One witness said the judge spoke “briefly” to Father and Father’s attorney. One witness said the judge stood and talked for “about five minutes.” Both had the belief that it was against the rules, and unfair, for the judge to talk to only one side, regardless of the subject matter. The alleged communication took place during the lunch break, just before the presentation of Mother’s evidence. The court examined the witnesses about the witness’ observation of the encounter, but did not at that time either refute the allegation or explain the nature of the communication. With his response to the new trial motion, Father submitted three affidavits from his family members stating that “no meeting whatsoever” took place. Father presented no testimony at the hearing. At oral argument, Father concedes that there was a communication between the court, Father’s attorney, and Father, but contends that the suspicions of Mother’s witnesses were incorrect.

Mother says the court was obliged to recuse itself, sua sponte, under both Canon 3B(7) and Canon 2 of Rule 2.03. Canon 3B(7) prohibits a judge from initiating, permitting or considering ex parte communications or “other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding” with a few exceptions that are not applicable here. The Commentary states: “To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.” Rule 2.03, Canon 3B(7). Canon 2 requires a judge to avoid impropriety and the appearance of impropriety in all his activities. Provision A says, “[a] judge shall ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary says, “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Rule 2.03, Canon 2A.

Father states that even if a communication did take place, Mother has failed to show that the alleged ex parte communication was about a matter pending before the court, as required under Canon 3B(7). He notes that the record does not show what the subject matter of the alleged ex parte communication was, nor what information was communicated. With regard to Canon 2, Father points out that the appearance of impropriety is to be measured objectively based on whether a “reasonable” person would have questioned the impartiality of the judge. See In the Interest of K.L.W., 131 S.W.3d 400, 405 (Mo.App.2004). He says Mother’s two witnesses, one of whom was her mother, were in no way objectively reasonable because they were closely allied with Mother.

Mother argues that the judge should have either denied that the communication took place, or have explained it on the record, or have recused himself once the allegation was made, citing Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). In Smulls, the Supreme Court stated, in dictum: “When the record reflects facts indicating potentially improper extra-judicial communications ..., the judge should make a statement on the record refuting or explaining the allegations, or the judge should recuse.” Id. at 505 n. 7. We agree that where bias is alleged as a result of alleged ex parte communications between one of the parties and the court, the judge should “err on the side of caution” by placing on the record the pertinent facts showing no objectively reasonable concern. If there is an objectively reasonable concern, the judge, of course, should remove such concern by recusal. See Interest of K.L.W., 131 S.W.3d at 405.

The trial court here correctly noted that although this alleged contact happened during the trial, no one raised it until after the court’s decision. The court took no action to address the allegation, leaving it merely “hanging in the air.” Granted, because the communication took place in the hallway, in public, in sight of Mother’s witnesses, it is not clear that a person experienced in the legal system would have believed that the communication showed bias. It is not difficult, for instance, to imagine a judge asking merely about the number of witnesses anticipated to testify that afternoon, or something of that nature. However, the failure of the court to comment on the matter did nothing to help alleviate fears of partiality. Also, because the court did not rule on the new trial motion within ninety days, the motion was overruled by operation of Rule 78.06. Although the trial court may not have intended to avoid making a response to the allegation of an improper ex parte communication, because of the effect of the lapse of time, no findings were made in regard to the alleged ex parte communication.

This court understands that a communication of some kind took place, but has no information as to the nature of the communication. We do understand that there was no attempt to be surreptitious, and that Mother’s two witnesses apparently had the notion that judges, like jurors, are strictly forbidden to communicate with lawyers outside of court other than to offer a greeting. Moreover, we are aware that the issue was not raised until after the court made its decision. Nevertheless, such allegations should not go unanswered, even if raised after the fact, because litigants are entitled to understand facts that will provide reasonable confidence in the process. Because we are remanding for detañed findings on the custody arrangements, we believe the court should make a statement on the record as to the pertinent facts showing no objectively reasonable concern as to bias, or should remove any such concern by recusal.

Domestic Violence Findings

Mother argues, in her third point, that the court’s faüure to make findings regarding domestic violence under section 452.375.2(6) or section 452.375.13 was against the weight of the evidence.

Section 452.375.2(6) requires the court, in determining what custodial arrangement is in the ehüd’s best interest, to consider the mental and physical health of all individuals involved, including any history of abuse. That subdivision further provides:

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.

Id. Pursuant to section 452.375.13,

If the court finds that domestic violence or abuse ... has occurred, the court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other famüy or household member who is the victim of domestic violence or abuse ... and any other chüdren ... from any further harm.

There are significant differences in the two provisions. Whüe section 452.375.2(6) requires both findings of fact and conclusions of law, section 452.875.13 requires only findings of fact to support the court’s order as to custody or visitation. Loumiet, 103 S.W.3d at 343. Additionally, under section 452.375.2(6), the court is required to make specific findings if it finds a pattern of domestic violence and also finds that placing the child in the abuser’s custody is in the child’s best interest. To trigger the mandated findings under section 452.375.13, the court need find only that domestic abuse has occurred. This “logically would include a single isolated incident of domestic violence or abuse.” Loumiet, 103 S.W.3d at 343.

Section 452.375 does not define “domestic violence,” but this court previously has instructed courts to consider the following regarding that term: “the parent’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault on other persons.” See Dickerson v. Dickerson, 55 S.W.3d 867, 872 (Mo.App.2001) 0quoting § 452.400.1, on visitation rights).

Mother says both parties presented testimony about incidents that qualify as domestic violence or abuse and thus required findings by the court. Both parties presented evidence of arguing, name calling, pushing, and shoving. Mother testified that Father had physically prevented her from leaving the house and had ripped the telephone cord out of the wall to prevent her from calling the police. One of the altercations resulted in Mother obtaining an order of protection. The Adair County Sheriff testified about a “domestic disturbance” that he described as a “bad situation.” Father had thrown Mother’s belongings outside the home, The Sheriff stated that Father was “highly agitated and aggressive” and that the parties needed to be separated. Mother was pregnant at the time. Mother testified that Father had shoved her down on the couch when she was pregnant. Father denied this. Mother also testified and offered documentary evidence that Father had punched a hole in the wall of their home. Mother says even if the court did not believe this evidence presented a pattern of abuse, the court could not have found that no abuse occurred at all, as such a finding would be unsupported by the evidence. See Dickerson, 55 S.W.3d at 874. Thus, at a minimum, the court was required to make findings pursuant to section 452.375.13, she says.

Father points out that he denied physically abusing Mother and refuted all the allegations of domestic abuse except that he broke Mother’s telephone in anger and that Mother shoved him and knocked his glasses off. Father excuses the order of protection by stating that he “consented” to it. It is unclear whether he means simply that he did not contest it. Father observes that both sections 452.375.2(6) and .13 require the court to make specific findings only after it finds a pattern of domestic violence or finds that domestic violence has occurred. Because the trial court made no such findings here, Father says this court can infer, pursuant to Rule 73.01(c), that the court found no evidence that domestic violence or abuse had occurred.

Mother acknowledges that the court made no finding that domestic violence or abuse had occurred. She says, though, that the court’s failure to make such a finding was against the weight of the evidence. She relies on Dickerson, in which the court held: “Compliance with the requirements of subsections 452.375.2(6) and 452.375.13 is mandatory. If the record reflects evidence of domestic violence, the trial court must make -written findings consistent with these statutory provisions.” Id. at 872.

The trial court in Dickerson made no findings as to domestic violence, but the appellate court found ample evidence of domestic violence in the record. Id. At trial, the wife related numerous incidents where her husband had shoved, threatened, pushed down, and forcibly restrained her and other family members. Id. There was evidence that he had bruised and cut her, nearly hit her with a car, and attempted to push her out of a moving vehicle. Id. at 872-73. Testimony also was presented regarding the husband’s abuse of the children, including sexual abuse. Id. at 873. The husband denied being abusive, but the appellate court found that the conduct he did admit fell within the definition of domestic violence. Id. Some of that conduct is similar to that alleged in this case, e.g., pushing his wife out the front door, punching a hole in the wall, shoving his wife down on the couch, and snatching a telephone out of her hand to prevent her from calling the police. The husband in Dickerson also consented to the entry of a full order of protection. Id. The appellate court concluded: “The volume of evidence ... precludes any assumption, based on the trial court’s silence, that the court found no domestic violence occurred. Such a finding would be against the weight of the evidence.” Id. at 874 (citation omitted). The case was remanded for specific findings on the issue of domestic violence or abuse. Id.

In Marquez v. Marquez, 136 S.W.3d 574, 580 (Mo.App.2004), the trial court noted that there was testimony about domestic violence, primarily by the wife against the children, and acknowledged that she had denied those allegations. Still, the court made no specific findings as to whether domestic violence had occurred. The appellate court held: “[Notwithstanding our belief that the court considered the evidence and made its custody determination with the children’s best interests in mind, we are constrained to remand the case so that the court may make determinations that will comply with the requirement of section 452.375.13.” Id. at 580-81.

The judgment in this case makes only a slight allusion to the allegations of abuse and domestic violence, stating: “Both parties testified in painstaking detail concerning the shortcomings of the other parent. But neither advanced probative evidence that would show their existing acrimony and bitterness has had a negative impact on the well-being of the child.” The judgment does not include the specific findings of fact regarding domestic violence required by section 452.375, however.

It is a close call as to whether the trial court erred in failing to make specific findings regarding domestic violence and abuse in this case. The Dickerson and Marquez opinions suggest that such findings were necessary. Because of the legislature’s “justified concern” about the potential danger domestic violence poses for children, strict compliance with these statutes is warranted. See Loumiet, 103 S.W.3d at 344; see also Dickerson, 55 S.W.3d at 872 (non-discretionary nature of these provisions reflects legislative resolve that courts should consider domestic violence in making determinations on child custody and visitation). Again, because we are remanding for additional findings as to the custody arrangement, the court on remand should either make an explicit finding that no abuse or domestic violence occurred or, if it did occur, make the required statutory findings in this regard.

Guardian ad Litem

Mother argues in her final point that the court erred by failing, sua sponte, to appoint a guardian ad litem based on allegations of child abuse or neglect, as required by section 452.423.

Section 452.423.2 states that the “court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.” (emphasis added). For purposes of section 452.423, child “abuse” is defined as “any physical injury, sexual abuse, or emotional abuse inflicted on a child ... by those responsible for his care, custody, and control except ... discipline including spanking, administered in a reasonable manner.” Rombach v. Rombach, 867 S.W.2d 500, 504 (Mo. banc 1993). “Neglect” is defined as the “failure to provide by those responsible for the care, custody, and control of the child, the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for his well-being.” Id.

Mother says there was testimony at trial that amounted to allegations of abuse and neglect by both parties. As evidence of neglect, Mother cites Father’s testimony that Mother’s migraine headaches and depression prevent her from properly caring for Brendan, that she confines the child in his room while she is sleeping, and that she keeps a loaded gun in her house. She also cites her own testimony that Brendan burned his hand on a lawnmower at her house. Mother says evidence of abuse can be found in her testimony that Father “overpowered” her to prevent her from leaving while she was holding Brendan in her arms, that Father pushed her while she was holding Brendan, and that Father “pops” Brendan in the back of the head to make him mind.

Father points out that not only did neither party request appointment of a guardian ad litem, but neither raised allegations of abuse or neglect in any of their pleadings. He says the only allegations of abuse or neglect came in through testimony at trial, and that testimony did not rise to the level that would require the court to appoint a guardian ad litem, sua sponte. Father contends that his actions toward Mother while she was holding Brendan evidenced no hostility or anger toward the child. He also notes that he refuted Mother’s testimony about his discipline of Brendan. At any rate, Father says, it was clear that neither party considered those allegations to be about abuse or neglect in their testimony at trial.

Mother acknowledges that neither party requested appointment of a guardian ad litem. But she points to White v. White, which states that even if the parties do not request appointment of a guardian ad li-tem, the trial court commits error by not doing so, sua sponte, when abuse or neglect is alleged. 952 S.W.2d 320, 322 (Mo.App.1997) (citing Gilman v. Gilman, 851 S.W.2d 15,17 (Mo.App.1993)).

Generally, such allegations must be raised in the pleadings. See Rombach, 867 S.W.2d at 503 (mandatory appointment of guardian ad litem “is triggered only by an allegation of child abuse expressly stated in a pleading and not by the mere introduction of evidence at trial”). The Rom-bach Court noted, however, that the analysis could not end there. It went on to consider Rule 55.33(b), which provides for the amendment of pleadings to conform to the evidence at trial. Id. The Court concluded:

If sufficient evidence exists that, if believed, shows actual abuse or neglect occurred, the court, either upon motion of a party or sua sponte, should order the pleadings amended to conform to the evidence and appoint a guardian ad li-tem.

Id. at 504. Here, Mother notes that the parties testified to incidents of abuse and neglect without objection at trial. Relying on Rombach, Mother says the issues were tried by the express or implied consent of the parties and the allegations, therefore, should be treated in all respects as if they had been raised in the pleadings.

It is unnecessary for us to decide that issue at this time. We gratuitously note that on remand the parties will have the opportunity to revisit the need for appointment of a guardian ad litem and that Mother may file any additional motion, in proper form, for such an appointment at that time. See Walters v. Walters, 113 S.W.3d 214, 219 (Mo.App.2003); cf. Speer v. Colon, 155 S.W.3d 60, 62 n. 10 (Mo. banc 2005) (parties encouraged to “revisit” motion for order of contempt on remand for additional findings as to custody).

Conclusion

For the foregoing reasons, the judgment is reversed and remanded. On remand, the trial court is instructed to make the required written findings in compliance with sections 452.375.6 and 452.375.13, to make findings with regard to Mother’s allegations of ex parte communications, and to take whatever other action it deems appropriate.

      . All statutory references are to Revised Statutes of Missouri, 2000, unless otherwise indicated.

      . Section 452.375.4 provides, in relevant part:
      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 ..., 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.

      . The section 452.375.2 factors are:
      (1) The wishes of the child’s parents as to custody and the proposed parenting plants]

      (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 [parental] functions ...;
      (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 ....;
      (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.

      . This court noted in Davidson v. Fisher, 96 S.W.3d 160, 164 (Mo.App.2003), that the court, in considering section 452.375.2(l)-(8), need not comment on or make findings on any factors that clearly are not relevant. However, the court must make findings on the factors that are relevant. The public policy of frequent, continuing, and meaningful contact must always be included in the findings. § 452.375.6.

      . All references to.. Rules are to Missouri Court Rules, 2005, unless otherwise indicated.

      . Rule 73.01(c) provides in relevant part: "In cases tried without a juiy ... [a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.”


author: JAMES M. SMART, JR., Judge.

text:
    Selta TRAVIS, Respondent, v. Jerry TRAVIS, Appellant.
    No. WD 64706.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.

      Bradley P. Grill, Kansas City, MO, arguing on behalf of appellant.
    John E. Chick, Jr., Kansas City, MO, arguing on behalf of respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   JAMES M. SMART, JR., Judge.

Jerry Dale Travis appeals the trial court’s judgment ordering him to pay $7,000 to Selta May Travis for her attorney’s fees and expenses on appeal of the judgment that dissolved their marriage. The judgment is affirmed.

Background

Selta Travis (Wife) petitioned for dissolution of her eight-year marriage to Jerry Travis (Husband) in 2003. No children were born of the marriage. The dissolution court heard evidence about the parties’ respective incomes, as well as their marital and non-marital property and debts. The court dissolved the parties’ marriage by decree in March 2004. The court awarded to each his or her non-marital property and distributed the marital assets in accordance with Chapter 452, RSMo. The court ordered Husband to pay Wife $25,000 for property equalization. The court also ordered Husband to pay the entire marital debt of over $78,000 and to contribute $5,000 toward Wife’s attorneys’ fees.

Husband appealed that judgment to this court, contesting the allocation of assets and debts and the award of attorney’s fees. Wife then filed a motion seeking $10,000 for attorney’s fees and $1,000 in costs for the appeal. Wife’s motion listed the legal services that would be required and included a signed, notarized affidavit from Wife verifying the motion’s contents. Wife’s motion also referred the court to the evidence presented at the dissolution hearing about Husband’s income and ability to pay. Husband was fully employed at the time of trial. There was evidence that Husband had also attempted to secrete funds, and could not account for funds transferred from an account under his control. Husband did not submit a response to the motion for attorney’s fees.

A hearing was convened, and the court heard arguments on Wife’s motion. Husband’s counsel informed the court that Husband had been unemployed for almost a year and was seeking Social Security disability benefits. Husband was present and could have testified about an adverse turn in his circumstances, but declined to do so. The court directed Husband to file a response affidavit within five business days. The response that Husband then filed asserted that he was unemployed, unable to work, and seeking disability benefits, but the response did not include an affidavit from Husband.

On September 13, 2004, the court entered judgment sustaining Wife’s motion and awarding her $7,000 for legal fees and expenses on appeal.

Husband filed a motion for reconsideration, again asserting that he is unemployed and seeking disability benefits. At a hearing on the motion, Husband’s attorney advised the court that Husband was receiving food stamps, being supported by family, and seeking Social Security benefits. Counsel sought to offer Husband’s testimony about his financial situation. The court concluded that, absent evidence of some “drastic change” that had developed since the earlier hearing or some authority instructing to the contrary, no additional evidence would be taken because the matter had already been ruled upon. The court denied the motion to reconsider.

In October 2004, Husband filed this appeal of the judgment sustaining Wife’s motion for attorney’s fees on appeal. While this appeal was pending, this court ruled on Husband’s appeal of the dissolution judgment. On May 24, 2005, this court in Travis v. Travis, 163 S.W.3d 43, 47 (Mo. App.2005), reversed and remanded for further proceedings because the judgment contained “insufficient evidence” from which to “properly determine the equity of the underlying award.” The opinion also reversed the $5,000 award of attorney’s fees. Id. at 50.

We now consider Husband’s appeal of the judgment sustaining Wife’s request for attorney’s fees and costs on appeal.

Arguments

Husband asserts in two points on appeal that the' trial court erred in awarding Wife attorney’s fees on appeal and in denying his motion for reconsideration. He says the court abused its discretion in refusing his testimony at the reconsideration hearing, in accepting Wife’s inadequate documentation for attorney’s fees, and in disregarding his financial situation.

Pursuant to section 452.355.1, the trial court has the discretion to award attorney’s fees on appeal of a marital dissolution decree. See Hatchette v. Hatchette, 57 S.W.3d 884, 893 (Mo.App. 2001); Trapani v. Trapani, 686 S.W.2d 877, 878-79 (Mo.App.1985). That statute provides that the court may order one party to pay the other party’s reasonable attorneys’ fees “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.” § 452.355.1. This includes sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. Id.

An award of attorney’s fees will be affirmed on appeal unless unsupported by substantial evidence or against the weight of the evidence. In re Marriage of Crow, 108 S.W.3d 778, 783 (Mo. banc 2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The trial court is considered an expert on the necessity, reasonableness, and value of attorney’s fees. Greiner v. Greiner, 146 S.W.3d 442, 452 (Mo.App.2004). The trial court’s decision regarding attorney’s fees is presumptively correct, and we will reverse its award only upon finding that it has abused its discretion. Hatchette, 57 S.W.3d at 893. To establish an abuse of discretion, Husband must show that the award is against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice. Id.

Point I

Husband first argues that the trial court abused its discretion by refusing to hear his testimony at the reconsideration hearing. Husband says it was shocking, arbitrary, and unreasonable for the court to refuse his offer to testify when he was present in the courtroom and ready to testify.

A similar situation arose in Hatchette v. Hatchette. There, the wife filed a motion for attorney’s fees on appeal and the husband filed suggestions in opposition. Hatchette, 57 S.W.3d at 893. At the hearing, counsel for both parties agreed that no testimony was necessary and the court could rule based upon the pleadings. Id. When the husband complained on appeal that the court erred in granting the motion without an evidentiary hearing, this court held that he had waived his right to present evidence and failed to preserve his right to assert error on appeal by not objecting to the court deciding the matter on the pleadings. Id.

Here, Husband was present at the earlier hearing on Wife’s motion, but chose not to testify. Husband’s counsel informed the court about Husband’s financial circumstances at that time. Although the court ordered Husband to file a response affidavit and Husband’s counsel stated that an affidavit would be forthcoming, when the response was filed it did not include an affidavit from Husband. In his motion to reconsider, Husband complained that Wife is gainfully employed and “virtually debt free,” while he is required to pay $25,000 to Wife and $78,000 in marital debt. At the reconsideration hearing, counsel again informed the court of Husband’s allegedly dire financial circumstances, but the court declined to hear Husband’s testimony.

The court was not arbitrary and unreasonable in refusing to hear Husband’s testimony at the second hearing. Husband gave no indication that the information he wished to provide was previously unavailable, and he provides no authority to show that the court was required to reopen the issue and to hear his testimony. Hatchette indicates otherwise. 57 S.W.3d at 893. The judgment shows that the trial court considered the statements of counsel and Husband’s responsive pleadings in ruling on Wife’s motion. We find no indication that the court disregarded the evidence it was provided. Point denied.

Point II

Husband also argues that the court abused its discretion in sustaining Wife’s motion for attorney’s fees on appeal because it lacked adequate, detailed proof of the extent of the services to be rendered.

A party seeking attorney’s fees on appeal must show the extent of the necessary services to be rendered by counsel, and the expenses related thereto, so that the trial court may make an award based on evidence of such services and expenses. Trapani, 686 S.W.2d at 878-79. This also gives the appellate court evidence to examine, in connection with other relevant circumstances, in gauging the propriety of the trial court’s discretionary actions. Id. at 879.

Here, Wife’s motion listed the legal work anticipated to be necessary for the appeal: reviewing the transcript, securing and reviewing copies of all exhibits, research, preparing and attending a pre-sub-mission settlement conference, preparing a brief and attending the oral argument portion of the case, as well as anticipating expenses to be incurred. The cost of those legal services was estimated at $10,000 and other expenses were estimated at $1000.

Wife’s request is nearly identical to that which was found to be sufficient in Trapa-ni, 686 S.W.2d at 879. There, counsel’s affidavit stated: “[T]he services that affi-ant will be required to perform in representing [respondent’s] interests on [appellant’s] appeal include a review of the trial transcript and legal file, legal research on the issues raised by [appellant], the drafting and preparation of an appellate brief and the preparation and presentation for oral argument ... the reasonable hourly rate for services provided by affiant on behalf of [respondent being] $75.00 per hour.” Id. Although Wife’s request in this case does not include an hourly rate for services, Husband points to no case that specifically requires an hourly rate to be included in a prospective request for attorney’s fees.

The trial court, as an expert in the necessity, reasonableness, and value of attorney’s fees, can independently determine and award the fees it deems appropriate. Hatchette, 57 S.W.3d at 893. The trial court’s decision regarding attorney’s fees is presumptively correct. Id. We find no abuse of discretion in the court’s acceptance of Wife’s documentation supporting her request for attorney’s fees in this case and no error in the $7,000 fee award.

Husband also complains, under this point, that the judgment is “particularly egregious” in light of the dissolution court’s earlier order that he pay $5,000 for Wife’s attorney’s fees at trial, $25,000 for property equalization, and the entire marital debt, while Wife was debt-free and gainfully employed. Husband points out that the ability of a party to pay such an award is a factor to be considered, citing Greiner, 146 S.W.3d at 453.

In determining whether to award attorney’s fees, the trial court “may consider all relevant factors” and “is not limited to solely the financial resources of the parties.” Timmons v. Timmons, 139 S.W.3d 625, 631 (Mo.App.2004). See also § 452.355.1. In addition to the nature and extent of the services to be rendered, the trial court may take judicial notice of the principal action in its determination of attorney’s fees on appeal. Trapani 686 S.W.2d at 879. Wife’s pleadings referred the court to evidence at the dissolution hearing about Husband’s substantial income and his ability to pay the earlier legal fees. She also reminded the court of evidence at the dissolution hearing indicating that Husband had concealed funds during the pendency of the dissolution action. See also Travis, 163 S.W.3d at 48. The trial court properly could consider all the evidence presented in the dissolution action in deciding the motion for attorney’s fees on appeal, including the allocation of assets and debts.

Husband points to no evidence demonstrating that the trial court disregarded the dictates of the earlier order. We have no reason to believe that the trial court failed to consider the factors listed in section 452.355.1, including Husband’s financial resources. Because neither party requested findings of fact or conclusions of law, we must presume that factual issues were resolved in accordance with the result reached. Rule 73.01(c). Point denied.

Outcome of Earlier Appeal

In his reply brief, Husband contends that this court’s reversal of the dissolution judgment and the attorney’s fees award in Travis v. Travis, 163 S.W.3d 43, mandates a ruling in his favor in this appeal. The merits of the case should be considered by the trial court in deciding whether to grant a motion for attorney’s fees on appeal. See § 452.355.1; Hatchette, 57 S.W.3d at 893. Husband says the reversal of the underlying judgment demonstrates that his appeal had merit and supports his contention that Wife should be required to pay her own fees on appeal.

We disagree. This court made no determination as to whether the dissolution court’s award for attorney’s fees was an abuse of discretion. Travis, 163 S.W.3d at 50. We explained that due to our inability to determine the equity of the judgment itself, we also are unable rule on the propriety of the award of attorney’s fees. Id. Travis instructs the trial court, upon reconsideration, to “once again exercise its considerable discretion and again assess legal fees as the court deems appropriate and as provided by law.” Id. At any rate, “[a]n appeal is a distinct stage in the proceeding for which attorney fees may be granted. The denial of attorney fees for the trial is not controlling.” Trapani, 686 S.W.2d at 878.

The issue in this appeal is “did the trial court err with the information it had before it at that time?” In another appeal of an award for prospective attorney’s fees, the court observed:

Although the present stage of the case affords tangible proof of what services counsel has rendered, the issue is not what this court may consider a reasonable fee for the services which have been provided, but whether the trial court in February, 1989 had evidence before it upon which the allowance was properly made at that time.

Heins v. Heins, 783 S.W.2d 481, 485 (Mo. App.1990) (emphasis added). In other words, we need not reverse the trial court’s decision because of information that has subsequently come to light, such as the reversal of the dissolution judgment in this case. Rather, the propriety of the trial court’s decision may be adjudged on the basis of the evidence available to the court at that time. On that basis, we find no abuse of discretion here.

Conclusion

For the foregoing reasons, the judgment is affirmed.

HOWARD and NEWTON, JJ., concur.

      . All statutory references are to Revised Statutes of Missouri, 2000, unless otherwise noted.


author: GEORGE W. DRAPER III, Judge.

text:
    Ray Charles SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85275.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 25, 2005.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Alison K. Brown, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER III, Judge.

Ray Charles Smith (hereinafter, “Mov-ant”) appeals the denial of his Rule 24.035 post-conviction motion without an eviden-tiary hearing. We dismiss Movant’s appeal pursuant to the escape rule.

Movant pleaded guilty to one count of tampering in the first degree pursuant to Section 569.080.1 RSMo (2000). Movant failed to appear for sentencing after being released on bond pending the results of the pre-sentence investigation. A capias warrant was issued for Movant’s arrest on August 28, 2002, and he was apprehended in December 2002. Movant appeared before the trial court and was sentenced as a prior and persistent offender to serve twenty years imprisonment. Movant subsequently filed a timely motion for post-conviction relief pursuant to Rule 24.035, which the court denied without an eviden-tiary hearing. Movant now appeals.

Movant raises one point on appeal. Movant argues the motion court clearly erred when it summarily denied his post-conviction relief motion pursuant to the escape rule without addressing the merits of the claims. We do not reach Movant’s allegation of error because we invoke the escape rule and dismiss his appeal.

The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. Nichols v. State, 131 S.W.3d 863, 865 (Mo.App. E.D.2004). A willful failure to appear for sentencing invokes the escape rule. State v. Crump, 128 S.W.3d 642, 643 (Mo.App. E.D.2004). The escape rule applies to appeals on the merits as well as to motions for post-conviction relief under Rules 29.15 and 24.035. Fogle v. State, 99 S.W.3d 63, 65 (Mo.App. E.D. 2003). The escape rule can be invoked to dismiss post-conviction appeals regardless of whether the motion court reaches the merits of the motion or dismisses the motion based upon its application of the escape rule. Crawley v. State, 155 S.W.3d 836, 837 (Mo.App. E.D.2005).

Movant does not contend the motion court erred in invoking the escape rule. Movant fails to address the effect of the escape rule on the motion court’s disposition of Movant’s claim. The record reveals the trial court firmly admonished Movant that if he failed to appear for sentencing, it would not hesitate to impose the maximum sentence allowable or follow the State’s sentencing recommendation. It is undisputed Movant failed to appear, a warrant was issued for his arrest, and he was apprehended four months later.

The relevant inquiry in determining whether to apply the escape rule is deciding whether the escape adversely affected the criminal justice system. Randal v. State, 144 S.W.3d 874, 876 (Mo.App. W.D.2004). This determination if left to the sound discretion of the appellate court. State v. Selvy, 72 S.W.3d 219 (Mo.App. E.D.2002).

The record supports a finding Movant knowingly alluded the authorities because he was aware that a warrant was issued for his arrest, and he failed to turn himself in. This resulted in a six month delay in sentencing. Further, the trial court repeatedly rebuked Movant’s failure to appear and subsequent flight after the trial court “took a chance” by placing him on bond pending the pre-sentence investigation. We agree with the trial court which found Movant’s escape had an adverse effect on the criminal justice system. The motion court did not err in applying the escape rule, and therefore, Movant was not entitled to a review of the merits of his post-conviction relief claims.

Movant’s appeal is dismissed.

GARY M. GAERTNER, SR., P.J. and KENNETH M. ROMINES, J„ concur.


text:
    Danny M. HILL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85350.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 25, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Danny M. Hill (Movant) appeals from the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant contends the motion court erred in denying his motion because his counsel was ineffective for failing to advise him of a potential statute of limitations defense and thus, his guilty plea was unintelligent, unknowing, and involuntary.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, 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 84.16(b).


text:
    Deraid D. HUMPHREY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85326.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 25, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Deraid D. Humphrey, appeals from the judgment denying his Rule 24.035 motion after an evidentiary hearing. On appeal, movant argues that under section 217.450 RSMo.2000 of the Uniform Mandatory Disposition of Detainers Law, the plea court lacked jurisdiction to accept his plea because he was not notified of a de-tainer within one year after it was filed with the Department of Correction’s facility where he was incarcerated.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    John CULPEPPER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85447.
    Missouri Court of Appeals, Eastern District, Division One:
    Oct. 25, 2005.
    Mark A. Grothoff, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, John Culpepper, appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. On appeal, movant argues that his trial counsel rendered ineffective assistance by failing to object to certain statements made by the prosecutor during closing argument.

The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Daniel GRIZZLE, Plaintiff/Appellant, v. PENSKE LOGISTICS, INC., Defendant/Respondent.
    No. ED 86110.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 25, 2005.
    Daniel Grizzle, Overland, MO, pro se.
    Charles Bernard Jellinek, St. Louis, MO, for respondent.

      Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Daniel Grizzle (Appellant) appeals from a judgment of the trial court entered upon a jury verdict finding in favor of Penske Logistics, Inc. on Appellant’s wrongful discharge claim. We have reviewed the briefs of the parties and the record on appeal and conclude that there was no error at the trial court level. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Respondent, v. Wilburn L. NASH, Appellant.
    No. ED 85488.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 25, 2005.
    Margaret M. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Wilburn Nash (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of St. Francois County upon his conviction by a jury of six counts of child molestation in the first degree and six counts of statutory sodomy in the first degree. In his appeal, Defendant contends that the trial court abused its discretion when it overruled his trial attorney’s objection to a physician’s testimony that the victim’s behavior during an examination suggested sexual abuse.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Fayette P. MILLER, Respondent, v. JONESBURG STATE BANK, Defendant, and Sharon Miller, Appellant.
    No. ED 85492.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 25, 2005.

      Craig S. Redler, Attorney at Law, St. Louis, MO, for appellant.
    Darryl L. Hicks, Attorney at Law, War-renton, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Sharon Miller (“Daughter”), appeals from a judgment of the Circuit Court of Warren County (“thé trial court”) entered in favor of Respondent, Fayette P. Miller (“Wife”). The judgment quieted title to real estate located in New Florence, Missouri (“the property”). It further declared null and void a previous default judgment, entered by the St. Charles County Family Division Circuit Court (“the St. Charles court”), which purported to dissolve the marriage of Wife and Roosevelt Miller (“Husband”). We affirm.

Husband became the owner of the property on April 14, 1988. Husband and Wife were married on or about October 26, 1989. No children were born of the marriage. Daughter is the daughter of Husband but not Wife. On April 10, 1992, Husband and Wife became the owners of the property as tenants by the entirety. They both resided on the property from approximately- the middle of 1988 until January of 1996. Husband and Wife separated in or about January of 1996. Husband continued to reside on the property until his death.

On December 6, 1999, Husband filed a petition for dissolution of marriage and an application for service by publication in the St. Charles court. On March 9, 2000, a “Default Judgment And Decree Of Dissolution” was entered by the St. Charles court. Pursuant to the terms of the judgment, Husband was awarded the property.

Husband died intestate on April 7, 2003. On May 12, 2003, Wife filed a petition to quiet title to the property in the trial court asserting that she is the fee simple owner of the property. In Daughter’s answer to the petition to quiet title, Daughter asserted that she is entitled to the property as the only heir at law of Husband. The trial court held that the St. Charles court lacked jurisdiction to dissolve the marriage of Husband and Wife, and dispose of the property. Thus, the trial court declared the St. Charles court default judgment null and void, and awarded Wife fee simple title to the property. This appeal by Daughter followed.

In her first point on appeal, Daughter claims that the trial court erred in permitting Wife to introduce extrinsic evidence at trial for the purpose of establishing that the St. Charles court improperly entered the default judgment.-

A collateral attack on a judgment is an effort to impeach the judgment in a proceeding which is not initiated for the express purpose of annulling the judgment. Major v. Frontenac Industries, Inc., 968 S.W.2d 758, 761 (Mo.App. E.D. 1998). A collateral attack has merit only when the record affirmatively reveals that the judgment was void for lack of jurisdiction. Groh v. Groh, 910 S.W.2d 747, 753 (Mo.App. W.D.1995). A judgment cannot be contradicted by extrinsic evidence. Howard v. Howard, 916 S.W.2d 875, 876 (Mo.App. E.D.1996).

The only specific extrinsic evidence Daughter claims was allowed in as evidence by the trial court is brief testimony by Wife explaining that she did not live in St. Charles at the time of the St. Charles court proceedings. Wife further explained that she did not learn of the St. Charles default judgment until after the death of Husband. Wife’s counsel indicated the evidence was not being offered for the purpose of attacking the St. Charles default judgment. The trial court could have reasonably found the evidence to be admissible as an attempt to refute Daughter’s affirmative defense that Wife should be precluded from bringing an action to quiet title “due to the failure of the Plaintiff [Wife] to act and the doctrine of laches.”

Furthermore, there is no evidence that the trial court considered or relied on extrinsic evidence in declaring the judgment of the St. Charles court to be null and void. To the contrary, in a letter to the parties filed on October 14, 2004, the court stated that it came to the conclusion that the judgment of the St. Charles court is void upon “examination of the entire record of the dissolution proceedings.... ” Therefore, the trial court did not impermissibly allow Wife to introduce extrinsic evidence for the purpose of establishing that the St. Charles court improperly entered a default judgment. Point denied.

We will now address Daughter’s third point on appeal before addressing her second point on appeal. In her third point on appeal, Daughter contends that service by publication was adequate to grant jurisdiction to the St. Charles court over the petition to dissolve the marriage of Husband and Wife.

Generally, a trial court can proceed in matters affecting status (such as the marriage itself) without personal jurisdiction, but the action in rem does require compliance with the rales relating to service of process and proper notice. Williams v. Williams, 950 S.W.2d 919, 924 (Mo.App. W.D.1997). A service by publication notice for in rem or quasi in rem civil actions shall include “a description of any property to be affected.... ” Rule 54.12(c)(3)(C). “When service is sought by means of constructive notice, strict compliance with the statute and rale allowing service by publication is required.” In re Marriage of Chamberlain, 63 S.W.3d 326, 330 (Mo.App. S.D.2002). “Defective or improper service by publication is the equivalent of no service at all.” Id., quoting Skalecki v. Small, 832 S.W.2d 954, 956 (Mo.App. S.D.1992).

In this case, a description of the property was not included in the service by publication notice. This defect in the notice constitutes a violation of the service by publication requirements set out in Rule 54.12. Because the service by publication requirements of Rule 54.12 were not met, the St. Charles court was without jurisdiction to enter a judgment. Thus, the judgment of the St. Charles court was wholly void. See In re Marriage of Southard, 733 S.W.2d 867, 868 (Mo.App. S.D.1987). Therefore, the trial court did not err in finding the default judgment rendered by the St. Charles court to be null and void. Point denied.

In light of this finding, we need not address Daughter’s contention in the second point on appeal that the St. Charles court had subject matter jurisdiction over the dissolution proceeding.

Based upon the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER III and KENNETH ROMINES, JJ„ concur.


text:
    Courtney EVERETT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85635.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 25, 2005.
    Timothy Forneris, Assistant State Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, 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.

Appellant Courtney Everett (“Everett”) appeals from the decision of the Circuit Court of St. Louis County, the Honorable Emmett M. O’Brien presiding,' denying Everett’s motion for post-conviction relief, pursuant to Rule 24.035, without an evi-dentiary hearing, after Everett pled guilty to one count of Assault in the First Degree, in violation of Section 565.050 RSMo. (2000), one count of Armed Criminal Action, in violation of Section 571.015, and one count of kidnapping, in violation of Section 565.110.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The judgment is AFFIRMED pursuant to Rule 84.16(b)(2).

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


author: NANNETTE A. BAKER, Presiding Judge.

text:
    Ronald J. FISCHER, Respondent, v. Donald H. BRANCATO, et al., Appellants.
    No. ED 86014.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 25, 2005.

      Thomas A. Connelly, St. Louis, MO, for appellants.
    David M. Heimos, Clayton, MO, for respondent.
   NANNETTE A. BAKER, Presiding Judge.

Donald H. Braneato (“Debtor”), Georgia Brancato (“Wife”), Donald H. Brancato, Inc. (“DHBI”) and North County Ortho-paedics, Inc. (“NCOI”) appeal from a final judgment of the trial court in favor of Ronald J. Fischer (“Fischer”). We find no error and affirm.

Background

This is the second time this case has been before this court. In an August 2004 opinion, we determined that the trial court erred when it held that Fischer failed to prove a fraudulent transfer by Debtor under the Missouri Uniform Fraudulent Transfer Act (“MUFTA”) Section 428.005-.059 and we held that Fischer was entitled to the relief provided by MUFTA. Fischer v. Brancato, 147 S.W.3d 794, 800 (Mo.App. E.D.2004). The evidence as set forth in that opinion is as follows: On February 2, 1996, the Circuit Court of the City of St. Louis entered a judgment in favor of Fischer and against Debtor, in the amount of $165,525.64. Since then, Fischer has attempted to collect said judgment, but Debtor has avoided payment of the monies by transferring the income he would have earned for his professional services as an orthopedic surgeon to Wife, through the use of the corporate defendants, DHBI and NCOI, effectively rendering himself “judgment proof.”

On June 4, 2001, Fischer filed a petition in St. Louis County alleging a civil conspiracy to engage in a fraudulent conveyance and civil conspiracy to tortiously interfere with his judgment lien. Following a bench trial in equity, the trial court found that there was no proof of a transfer made directly by Debtor and that the lack of proof defeated liability under MUFTA. In its judgment of May 3, 2003, the trial court also sustained Debtor’s objection that Fischer failed to properly plead that he was seeking to pierce the corporate veil of DHBI and NCOI, and held that Fischer failed to sufficiently demonstrate by the facts adduced at trial that DHBI or NCOI were the alter egos of Debtor. Fischer then filed a motion for reconsideration and to amend the judgment. The trial court denied both motions.

Fischer filed an appeal, arguing in his sole point that the trial court erred in holding that he had failed to prove a fraudulent transfer by Debtor, and that this failure defeated liability under MUFTA. This court agreed. We held that because Fischer sufficiently pleaded and tried his cause of action for conspiracy to engage in a fraudulent conveyance under MUFTA, he was entitled to the relief it provides, regardless of whether he pleaded piercing the corporate veil or alter ego as separate causes of action. Brancato, 147 S.W.3d at 800. Moreover, it was not necessary to hold the other defendants liable for Debt- or’s debt in order to void the transfers of Debtor’s income to DHBI, NCOI and/or Wife such that Fischer could be permitted to collect his judgment. Id. The opinion concluded that:

It is absolutely apparent from Creditor’s petition, which was supported by overwhelming evidence at trial, that Debtor and Wife conspired to fraudulently convey, through the use of the corporate defendants DHBI and NCOI, the income Debtor would have received for his professional services as an orthopedic surgeon. Debtor did this “with an intent to hinder, delay and defraud” [Fischer] of his obligations under the February 1996 judgment. As such, all of the income Debtor would have earned for his professional services as an orthopedic surgeon in his medical practice since [Fischer] obtained the February 2, 1996 judgment, which we find was fraudulently conveyed to Wife, DHBI and/or NCOI, shall be retransferred back to Debtor personally such that [Fischer] is able to collect his judgment from that income.

The case was reversed and remanded for further proceedings consistent with the opinion.

On February 11, 2005, the trial court entered an amended judgment as follows:

1. Per Section 428.039.1(1), Wife, [DHBI], a Missouri corporation, and [NCOI], a Missouri corporation, shall herein retransfer back to Defendant, [Debtor], personally, all income earned from performance of his professional services in his medical practice as an orthopedic surgeon since February 2, 1996, in amounts adequate for Plaintiff, [Fischer], to collect from these monies a sufficient sum from which to satisfy in full his Judgment entered in his favor and against [Debtor], in the amount of $165,525.64, together with all post-judgment interest accrued on said Judgment as allowed by law;
2. Per Section 428.039.1(2), Plaintiff [Fischer] may attach or levy execution against any asset of [Debtor’s] transferred or the proceeds of that asset of Defendants, Wife, [DHBI] and [NCOI] jointly and severally, in order to satisfy in full the Judgment in favor of [Fischer] and against [Debtor] in the amount of $165,525.64, together with all post-judgment interest accrued on said Judgment as allowed by law;
3. Per Section 428.039.1(3)(a), Defendants Wife, [DHBI] and [NCOI] are enjoined from further disposition of any asset transferred or of any other property of Defendants until said Judgment in favor of Plaintiff [Fischer] and against Defendant [Debtor] in the amount of $165,525.64, together with all post-Judgment interest accrued on said Judgment as allowed by law, is satisfied in full;
4. Per Section 428.039.1(3)(c), the [e]ourt grants any other relief the circumstances may require to enable the Judgment in favor of Plaintiff [Fischer] and against Defendant [Debtor] in the amount of $165,525.64, together with all post-Judgment interest accrued on said Judgment as allowed by law, to be satisfied in full.

Debtor now appeals the trial court’s amended judgment, claiming that the trial court erred in entering its amended judgment because it was a general judgment and not in accordance with the appellate opinion. In his sole point relied on, Debt- or asserts that since Fischer had not pleaded “piercing the corporate veil”, that our opinion limited Fischer’s recovery to an order retransferring the income received by Debtor and fraudulently conveyed to DHBI, NCOI and/or Wife. Debt- or claims that the trial court’s judgment on remand expanded the holding of this court.

Standard of Review

A trial court must render judgment in accordance with the mandate of the appellate court. Ironite Products Co., Inc. v. Samuels, 17 S.W.3d 566, 570 (Mo. App. E.D.2000). However, the mandate is not to be read and applied in a vacuum. Id. The appellate court’s opinion is part of the mandate and must be used in interpreting the mandate. Id. Accordingly, proceedings on remand should be in accordance with the mandate and the result contemplated in the appellate court’s opinion. Id.

The law of the case doctrine governs successive appeals involving the same issues and facts. Id. at 571. Under this doctrine, the appellate decision becomes the law of the case in a subsequent proceeding in the same cause and precludes re-examination of issues decided in the original appeal. Id. This rule applies to matters decided by the appellate court’s opinion, either directly or by implication. Id.

The mandate of the appellate court is not its judgment. Lombardo v. Lombardo, 120 S.W.3d 232, 243 (Mo.App. W.D.2003). The appellate court’s opinion is its judgment, which is communicated to the lower court by its mandate. Id. In other words, the mandate constitutes the official communication of the appellate judgment to the subordinate court. Id. When the terms of mandate remand the cause to the subordinate tribunal, the effect is to revest jurisdiction in that court to-take the acts directed. Id.

It is well settled that a trial court, on remand, with respect to the issues addressed by the appellate court on appeal, has only that authority granted to it by the appellate court in its mandate. Id. In determining its authority on remand, the trial court is not only to be guided by the mandate, but by the judgment or opinion of the appellate court. Id.

Discussion

Debtor alleges that since our previous opinion made clear that Fischer did not plead piercing the corporate veil, he could not obtain a general judgment against Wife, DHBI or NCOI, but could only obtain the relief of the retransfer of assets to Debtor. Further, Debtor claims that the amended judgment entered by the trial court did not comply with the appellate court’s mandate.

In our earlier opinion we noted that the trial court had “reasoned as a matter of law that [Fischer] could not succeed in his cause of action because he failed to plead specifically the theory of piercing the corporate veil or alter ego.” Brancato, 147 S.W.3d at 800. We disagreed with that finding and held that such pleadings were not necessary for the trial court to grant Fischer relief under MUFTA. Id. We further stated that, “[b]ecause Creditor sufficiently pleaded and tried his cause of action for conspiracy to engage in a fraudulent conveyance under MUFTA, he is entitled to the relief it provides, regardless of whether he pleaded piercing the corporate veil or alter ego as separate causes of action.” Id. We also held that it was not necessary to hold the other defendants hable for Debtor’s debt in order to void the transfers of Debtor’s income to DHBI, NCOI and/or Wife such that Fischer could be permitted to collect his judgment. Id. Finally, we held that it was absolutely apparent from Fischer’s petition, which was supported by overwhelming evidence at trial, that Debtor and Wife conspired to fraudulently convey, through the use of the corporate defendants DHBI and NCOI, the income Debtor would have received for his professional services as an orthopedic surgeon. Id. Debtor did this “with an intent to hinder, delay and defraud” Fischer of his obligations under the February 1996 judgment. Id.

In support of his argument that the trial court was limited to ordering a retransfer of assets, Debtor relies upon the specific language at the end of our opinion, which states, “all of the income Debtor would have earned for his professional services as an orthopedic surgeon in his medical practice since [Fischer] obtained the February 2,1996 judgment, which we find was fraudulently conveyed to Wife, DHBI and/or NCOI, shall be retransferred back to Debtor personally such that [Fischer] is able to collect his judgment from that income.” Brancato, 147 S.W.3d at 801. Citing this language, Debtor argues that the trial court impermissibly attached a judgment hen on other property of Debtor, Wife, DHBI and NCOI beyond what we mandated. However, Debtor ignores the portion of the opinion which stated that Fischer is entitled to the relief provided by MUFTA. Mat800.

Section 428.039.1 of MUFTA provides the following remedies to creditors seeking relief:

(1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by applicable laws of this state;
(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure;
(a) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(b) Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(c) Any other relief the circumstances may require.
2. If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.

Since our earlier opinion held that Fischer was entitled to the relief provided under MUFTA notwithstanding his failure to plead piercing the corporate veil, we cannot say that the trial court’s judgment was overbroad or in any way expanded our holding. Accordingly, we affirm the judgment of the trial court.

ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ., concur.

      . This court has reviewed the Motion taken with the case. Respondent’s Motion to Dismiss Appeal or, Alternatively, to Expedite Appeal and Require Appellants to Post a Sufficient Supersedeas Bond is denied.

      . All statutory references are to RSMo. 2004, unless otherwise indicated.


text:
    Jeffrey M. McGUIRE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 85882.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 25, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Special Assistant Attorney General, Missouri Department of Revenue, Jefferson City, MO, for appellant.
    A. David Arand, Breigel, Davis & Arand, L.L.C., Union, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Director of Revenue (“Director”), appeals from the judgment of the Circuit Court of Gasconade County granting Respondent’s, Jeffrey M. McGuire (“McGuire”), motion for judgment on the pleadings and ordering Director to rescind the suspension of McGuire’s driving privileges. We reverse and remand.

On July 16, 2004, McGuire was arrested for driving while intoxicated after he consented to a breath analyzer test that determined his blood alcohol content exceeded the legal limit. Subsequently, McGuire’s driving privileges were suspended pursuant to sections 302.505, RSMo 2000 and 302.525. The effective date of McGuire’s suspension was September 25, 2004.

On September 23, 2004, McGuire filed a petition for trial de novo. On October 13, 2004, Director filed an answer, which included McGuire’s arrest report, a Missouri Department of Health datamaster maintenance report (“maintenance report”), and a Guth Laboratories certificate of analysis (“certificate of analysis”). The maintenance report, dated July 16, 2004, indicated that calibration checks were performed on a simulator solution with lot number 08180, and reflects an expiration date of October 9, 2004. The undated certificate of analysis analyzed a simulator solution with lot number 03060, and reflects an expiration date of April 14, 2004.

On January 5, 2005, McGuire filed a motion for judgment on the pleadings, asserting that Director’s own pleadings indicated that Director could not prove the effectiveness of the simulator solution. On January 21, 2005, the trial court granted McGuire’s motion for judgment on the pleadings. In its judgment, the trial court found that Director’s own pleadings raised the issue of the effectiveness of the simulator solution because the certificate of analysis reflects the simulator solution expired on April 14, 2004, more than three months prior to the date the breath analyzer test was administered to McGuire. The court entered judgment for McGuire because there was no evidence on the pleadings “to indicate that the simulator solution was not deficient,” citing Lasley v. Director of Revenue, 17 S.W.3d 174 (Mo. App. W.D.2000). Subsequently, the court ordered Director to rescind the suspension of McGuire’s driving privileges and correct his driver record accordingly. This appeal by Director followed.

In Director’s sole point on appeal, it argues the trial court erred in granting McGuire’s motion for judgment on the pleadings and ordering Director to rescind the suspension of McGuire’s driving privileges because Director’s pleadings reflect that a current simulator solution was used.

Director contends that including a certificate of analysis for a different simulator solution than the one used to perform the maintenance check does not support a judgment on the pleadings against it. It asserts the maintenance report reflects that an approved and current simulator solution was used to check the breath analyzer used in McGuire’s arrest.

A motion for judgment on the pleadings should be denied where there is an issue of fact on the face of the pleadings. Cantor v. Union Mut. Life Ins. Co., 547 S.W.2d 220, 224 (Mo.App.1977). When reviewing a judgment on the pleadings in favor of a plaintiff, we look to the defendant’s answer and accept all alleged facts therein as true. Armstrong v. Cape Girardeau Physicians, 49 S.W.3d 821, 824 (Mo.App. E.D.2001). An exhibit to a pleading is a part of the pleadings for all purposes. Rule 55.12.

A driver who has had his license suspended by the director of revenue can petition for a trial de novo. Verdoom v. Director of Revenue, 119 S.W.3d 543, 545 (Mo.banc 2003); Section 302.535.1. Proof of compliance with the regulation regarding maintenance checks only becomes an issue if a proper, timely objection is made to the admission of breath analyzer test results. Reed v. Director of Revenue, 834 S.W.2d 834, 836 (Mo.App. E.D.1992). Absent a proper objection, the director of revenue’s failure to prove compliance with the maintenance check requirement does not destroy the sufficiency of its case. Id. at 837. When proof of compliance does become an issue due to a proper objection, proof is not limited to the records themselves. Canania v. Director of Revenue, 918 S.W.2d 310, 314 (Mo.App. S.D.1996). Rather, the director of revenue can prove compliance with the regulations regarding maintenance checks through all available evidence. Dillon v. Director of Revenue, 999 S.W.2d 319, 323 (Mo.App. W.D.1999).

In Lasley, the case the trial court relies on, a trial de novo took place. 17 S.W.3d 174 (Mo.App. W.D.2000). During the trial de novo in Lasley, the driver made a timely objection to the admission of breath analyzer test results, causing proof of compliance with the regulation regarding maintenance checks to become an issue. Id. at 177. After the objection, the director of revenue presented evidence in an attempt to prove compliance with the regulation regarding maintenance checks. Id. The court then found that the director of revenue did not meet its burden of showing the breath analyzer was properly maintained. Id.

In this case, unlike the Lasley case, a trial de novo did not take place. Instead, the trial court entered judgment on the pleadings in favor of McGuire. Accepting all alleged facts in Director’s answer as true reveals an inconsistency between the maintenance report and the certificate of analysis. Due to this inconsistency, the pleadings reflect an issue of fact as to whether the simulator solution utilized to calibrate the breath analyzer used on McGuire was deficient. In the context of a trial de novo, McGuire will have to make a timely, proper objection to the admission of the breath analyzer test results, and then evidence will be presented to determine whether Director complied with the regulation regarding maintenance checks. This is a matter to be resolved in the context of a trial de novo rather than in a judgment on the pleadings. Therefore, the trial court erred in granting McGuire’s motion for judgment on the pleadings and ordering Director to rescind the suspension of McGuire’s driving privileges. Point granted.

Based on the foregoing, we reverse the trial court’s judgment, and remand to the trial court to enter a judgment reinstating the suspension of McGuire’s driving privileges.

GEORGE W. DRAPER, III, and KENNETH ROMINES, JJ. concur.

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

      . We note that McGuire has filed no brief responding to the Director’s appeal.


author: LAWRENCE E. MOONEY, Judge.

text:
    In re C.R.F. A Male Minor Child, Through His Next Friend, C.R.C., and C.R.C., Individually, Respondents, v. B.M.F., Appellant.
    No. ED 84720.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 25, 2005.

      Joseph J. Porzenski, St. Charles, MO, for appellant.
    Michael C. Todt, St. Charles, MO, for respondents.
   LAWRENCE E. MOONEY, Judge.

In this declaration of paternity action, Mother, B.M.F., appeals from the trial court’s judgment changing her minor child’s surname to that of Father. Because we find there was insufficient evidence adduced demonstrating that the name change was in the child’s best interest, we reverse and remand with directions.

Mother gave birth to a son on April 24, 2001. Two days later, Father, C.R.C., filed his petition for paternity and custody of the child. Mother cross-petitioned for determination of father/child relationship, custody of the child, and for child support. The trial court entered judgment declaring Father to be the natural father of the child, awarding joint physical and legal custody, awarding child support to Mother, awarding Mother partial retroactive child support, ordering each party to pay their own attorney’s fees, and changing the child’s surname to Father’s. Mother appeals.

Mother claims the trial court erred in granting Father’s request to change the surname of the child from Mother’s surname to Father’s surname. Mother contends there was no evidence offered by Father that the name change was in the child’s best interest.

In this court-tried case, we will affirm the judgment of the trial court unless there is no substantial evidence to support the decision, it is against the weight of the evidence, or the trial court erroneously declares or applies the law. Bleehle v. Poirrier, 110 S.W.3d 853, 855 (Mo.App. E.D.2003) citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “In cases determining the surname of a child born out of wedlock, the trial court has wide discretion and should be guided by what is in the best interests of the child.” Brown v. Shannakan, 141 S.W.3d 77, 82 (Mo.App. E.D.2004); see also, Blechle, 110 S.W.3d at 855, quoting B.L.W. by Ellen K. v. Wollweber, 823 S.W.2d 119, 122 (Mo.App. S.D.1992) citing Kirksey v. Abbott, 591 S.W.2d 751, 752 (Mo.App. E.D. 1979). The law does not presume it is in the child’s best interest to carry the father’s surname. Brown, 141 S.W.3d at 82; see also, Blechle, 110 S.W.3d at 855. Additionally, neither parent has the absolute right for a child to bear his or her name. Id; see also, Kirksey, 591 S.W.2d at 752. “The parent seeking to change the child’s name bears the burden of proving the name change is in the child’s best interests.” Brown, 141 S.W.3d at 82; see also, Blechle, 110 S.W.3d at 855.

Here, Father testified that he was requesting the name change because, in his words, “I am his father and he is my son and I believe he should carry on my name.” Father also testified that he was unaware of anyone who would be harmed by the name change, and that the child was carrying the middle name of his maternal grandfather. Father presented no other evidence regarding the name change, and conceded at oral argument that evidence concerning the name change was sparse.

Father’s remarks are not sufficient evidence to sustain his burden of demonstrating that the change in surname was in the child’s best interest. The evidence here of Father’s motivation does not constitute evidence that the name change is in the best interest of the child. Because there was insufficient evidence presented demonstrating that the change of name was in the child’s best interest, the trial court erred in granting Father’s request to change the child’s surname. Point granted. On remand, the trial court is directed to rescind its order changing the child’s surname to Father’s surname.

The judgment of the trial court with respect to the change in child’s surname is reversed and the cause is remanded with directions. In all other respects, the judgment is affirmed.

KATHIANNE KNAUP CRANE, P.J., and BOOKER T. SHAW, J., concur.

      . Mother also alleges error in the trial court's award of joint legal custody, in its award of retroactive child support, and in ordering the parties to pay their own attorney’s fees. We summarily deny these allegations of error and find that no jurisprudential purpose would be served by an exposition of the detailed facts and law. Rule 84.16(b). The parties have been furnished with a memorandum, for their information only, setting forth the reasons for our order.