text:
    Michelle B. (Giles) BECKWITH, Respondent, v. Bruce GILES, Appellant.
    No. WD 58185.
    Missouri Court of Appeals, Western District.
    Dec. 5, 2000.

      Appellant, pro se.
    Andrea Paige Bolstad, Liberty, for respondent.
    Before EDWIN H. SMITH, P.J., ULRICH, J. and ELLIS, J. .
   ULRICH, Judge.

Bruce Giles appeals from the judgment of the Circuit Court of Clay County modifying his Decree of Divorce with Michelle B. (Giles) Beckwith. The judgment of modification terminated the parties’ joint legal custody, awarded Ms. Beckwith sole legal and physical custody of the parties’ minor child, restricted Mr. Giles’ visitation with the minor child, and increased his child support obligation. Mr. Giles contends that the trial court erred in (1) overruling his motion for change of judge; (2) overruling his application for writ of habe-as corpus ad testificandum; (3) transferring sole legal and physical custody of the minor child to Ms. Beckwith; (4) restricting his visitation with the minor child; and (5) raising his child support obligation to $350.00 per month. The judgment of the trial court is affirmed in part, and reversed in part.

I.Facts

Upon dissolution of the parties’ marriage in 1991, the parties were awarded joint legal custody of their minor child with Ms. Beckwith receiving primary physical custody subject to Mr. Giles rights of reasonable visitation. Sometime after the parties dissolution, Mr. Giles was convicted on two counts of Assault in the second degree and two counts Armed Criminal Action. He was placed in the custody of the Missouri Department of Corrections on or about September 9,1994.

Ms. Beckwith filed a motion to modify the divorce decree seeking modification of the child’s custody and Mr. Giles’ visitation rights on January 27, 1999. Following a hearing on the motion, the Commissioner entered its findings and recommendations on June 30, 1999, which were adopted and confirmed by the circuit judge on that same day. Mr. Giles appealed. The appeal was dismissed and the case was remanded to the trial court with directions to set aside the court’s judgment and to allow the parties fifteen days to move the trial court for rehearing. Thereafter, Mr. Giles filed a motion for rehearing. The trial court denied Mr. Giles’ motion and adopted and confirmed the Commissioner’s original findings and recommendations on January 4, 2000. This appeal followed.

II.Standard of Review

As a judge tried case, the standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which interprets what is now Rule 73.01(c). Under this standard, this court will affirm and sustain the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D.1999). Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment should be affirmed under any reasonable theory supported by the evidence. Id.

III.Points on Appeal

In his first point on appeal, Mr. Giles contends that the trial court erred in overruling his motion for change of judge. Mr. Giles claims he was entitled to a change of judge as a matter of due process. Mr. Giles’ motion, however, was filed out of time, therefore, it was proper for the trial court to deny his request.

Rule 51.05(a) requires that “[a] change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by any party.” Upon the filing of a proper, timely application under the rule, the court has no jurisdiction to do anything other than to grant the application and transfer the cause to another judge. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); Rule 51.05(e). But in order to be timely, “[t]he application must be filed within sixty days from service of process or thirty days from the designation of the trial judge, whichever time is longer.” Rule 51.05(b).

Mr. Giles’ Motion for Change of Judge was not timely filed. Mr. Giles .was served on February 16,1999. The trial judge was designated at the time the summons was served. Since the trial judge was already designated at the time the summons was served, the sixty day time period from the date of service is longer than the thirty day period from the designation of the trial judge. Sixty days from February 16, 1999, falls on April 17, 1999, which is a Saturday. Therefore, Mr. Giles would have had until Monday, April 19, 1999, to timely file an application for a change of judge. Rule 44.01(a).

Mr. Giles’ Motion for Change of Judge was filed on May 19, 1999. Since it was not filed by the April 19,1999 deadline, the motion was not timely filed. Accordingly, the trial court did not err in denying Mr. Giles’ Motion for Change of Judge. The point is denied.

In his second point on appeal, Mr. Giles contends that the trial court erred in overruling his application for Writ of Ha-beas Corpus Ad Testificandum. Mr. Giles was incarcerated with the Department of Corrections. He argues he should have been brought to the Circuit Court of Clay County to defend himself in this matter because the language of the statute created a legitimate expectation that the writ would be issued, thereby creating a constitutional right to appear.

Courts recognize that “absent a countervailing state interest of overriding significance, prisoners must be afforded meaningful access to the courts and an opportunity to be heard.” State ex rel. Kittrell v. Carr, 878 S.W.2d 859, 862 (Mo.App. E.D.1994). But it is also equally well established that a prisoner has no absolute right to appear personally in a civil proceeding. Muza v. Missouri Dept. of Soc. Servs., 769 S.W.2d 168,176 (Mo.App. W.D.1989); Carr, 878 S.W.2d at 862. The granting of a writ of habeas corpus ad testificandum to appear in a civil proceeding lies within the discretion of the trial court, which should “require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness.” Laws v. O’Brien, 718 S.W.2d 615, 618 (Mo.App. E.D.1986) (iquoting Joiner v. State, 621 S.W.2d 386, 339 (Mo.App. E.D.1981); § 491.230.2(2), RSMo Cum.Supp.1996.

A key factor in determining whether a prisoner has a constitutional right to appear personally in a civil matter is whether there are any reasonable alternative means by which the prisoner may be heard and thus obtain meaningful ae-cess to the court. Carr, 878 S.W.2d at 863. The legislature has provided a variety of alternatives for securing prisoner’s rights to access to the courts. In Missouri, prisoners can testify by conventional deposition or by videotaped deposition or by closed circuit television, and in some instances, upon a prisoner’s request, a trial judge may, in his or her discretion, conduct a bench trial within the prison in cases where the prisoner is a party. See § 544.275, RSMo 1994; § 561.031, RSMo 1999 Cum.Supp.; Rule 57.07(a)(2); see also Call v. Heard, 925 S.W.2d 840, 846 (Mo. banc 1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 716 (1997). Only where there are no reasonable alternatives to access the court and a substantial and irreparable prejudice will result from the failure to attend the proceedings may personal attendance be required as a matter of due process. Carr, 878 S.W.2d at 863; Burton v. Flowers, 14 S.W.3d 608, 609 (Mo.App. E.D.1999).

In this case, Mr. Giles filed numerous motions with the trial court, which demonstrate his ability to conduct legal research and file matters with the court. Mr. Giles, however, never sought in his many motions any of the alternatives to access the court. The trial court even granted Mr. Giles a continuance after his first application for a writ of habeas corpus ad testifi-candum was denied so he could hire an attorney to represent his interests in the proceeding, which Mr. Giles also did not do. Mr. Giles has, therefore, failed to demonstrate that no reasonable alternatives to access the court existed. As a result, Mr. Giles second point is denied.

In his third point, Mr. Giles contends that the trial court erred in transferring sole legal and physical custody of the minor child to Ms. Beckwith. Mr. Giles argues that the trial court failed to consider all relevant statutory factors in modifying the custody provisions of the original decree of dissolution. Specifically, Mr. Giles alleges that the trial court failed to consider (1) the wishes of the child as to his custodian; (2) the interaction or interrelationship of the child with his parents; and (3) the child’s adjustment to home, school, and community, and the mental and physical health of all individuals involved.

Section 452.410.1 sets forth what the trial court must find before modifying a prior custody decree. It provides, in pertinent part, that:

the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

§ 452.410.1, RSMo 1994. Under this subsection, a court must first determine that a substantial and continuing change of circumstances of the child or his custodian has occurred. The party seeking to change custody has the burden of proving a change in circumstances requiring modification. Reeves-Weible v. Reeves, 995 S.W.2d 50, 56 (Mo.App. W.D.1999). Section 452.410 does not specify the individual change of circumstances that will trigger modification. It does, however, require that the change be such that “modification is necessary to serve the best interests of the child.” § 452.410.1. The trial court, in deciding the best interests of the child, as statutorily required, must consider all relevant factors including the statutory factors found in § 452.375.2. Reeves, 995 S.W.2d at 63. Generally, the trial court is considered to have properly considered the statutory factors when it made its decision. Jones v. Jones, 10 S.W.3d 528, 540 (Mo.App. W.D.1999).

Nevertheless, in the case at hand, the evidence presented at the hearing on the matter was limited. The only evidence offered in support of the motion to modify custody was the testimony of Ms. Beck-with. In her brief testimony, Ms. Beck-with merely explained that since the original custody decree, Mr. Giles had been convicted of a crime and is serving time in prison. Evidence was not presented on each of the statutory factors for the court to consider in determining the best interests of the child. Although significant, the incarceration of Mr. Giles does not, without additional evidence, constitute, by itself, evidence of the statutory factors the court is to consider when determining the best interest of the child. Under these circumstances, the trial court cannot be presumed to have considered all relevant statutory factors enumerated in § 452.375. The portion of the judgment regarding the modification of custody is, therefore, reversed and the case is remanded to the trial court for receipt of evidence regarding the best interests of the minor child.

In his fourth point on appeal, Mr. Giles contends the trial court erred in restricting Mr. Giles’ visitation with his minor child. Mr. Giles argues that the trial court (1) improperly considered the evidence that he assaulted his brother and his brother’s wife as evidence of domestic violence; and (2) failed to make the required findings of fact set forth in § 452.400.1.

Section 452.400.1 provides that a non-custodial parent has a right to reasonable visitation, “unless the court finds ... that visitation would endanger the child’s physical health or impair his emotional development.” In determining the noncustodial parent’s visitation rights, the court is not limited to considering only physical abuse in which the child was the victim. Williams v. Williams, 965 S.W.2d 451, 457 (Mo.App. W.D.1998). Instead, the statute requires that the court “shall consider 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 and shall grant visitation in a manner that best protects the child.” § 452.400.1, RSMo Cum.Supp.2000. Section 452.400.1 requires that if the trial court denies or restricts the non-custodial parent’s visitation privileges, the court, if requested by a party, must make specific findings that the visitation “would endanger the child’s physical health or impair his emotional development.” Williams, 965 S.W.2d at 457; § 452.400.1.

Here, the trial court properly considered the assault, injuries and bodily harm that Mr. Giles inflicted upon his brother and sister-in-law and thereby restricted Mr. Giles’ visitation. But despite Mr. Giles’ request, the trial court did not make a specific finding of endangerment to the child’s health or impairment of the child’s development. The trial court found that it is in the best interest of the minor child that Mr. Giles’ visitation is supervised. The court further stated that the reason for the restriction is that Mr. Giles was “convicted of crimes of assault and armed criminal action where the victims were Respondent’s brother and sister-in-law.” While these general findings of fact may provide a sufficient basis for the court to make a finding of endangerment or impairment, the court did not make such specific findings in the record as required by statute. The judgment regarding the modification of visitation is, therefore, reversed. The case is remanded to the trial court to make the specific findings of fact as requested by Mr. Giles and required by the statute and to make such change in the visitation as the court determines proper and within its discretion.

In his final point on appeal, Mr. Giles contends that the trial court erred in raising his child support obligation from $300.00 per month to $350.00 per month. Neither party sought modification of child support in this action. There was no pleading concerning the amount of the previously adjudicated $300.00 monthly child support payments that Mr. Giles was ordered to pay in the original divorce decree. In fact, Ms. Beck-with specifically testified at the hearing that she was not asking the trial court to modify the child support and that the original child support award was adequate. The general rule in cases such as this is that a judgment is void to the extent that it grants relief beyond what was requested in the pleadings. Dolan v. Dolan, 540 S.W.2d 220, 221 (Mo.App.1976). Accordingly, because neither pleadings were filed nor evidence presented warranting an increase in the amount of child support Mr. Giles is obligated to pay, the court’s order as it pertains to Mr. Giles’ child support obligation is void. The provision of the judgment relating to child support is remanded, and the trial court is instructed to amend its order by changing the amount of monthly child support payments from $350.00 back to $300.00 per month.

IV. Conclusion

The judgment of the trial court is affirmed in part and reversed in part. The trial court’s denials of Mr. Giles’ applications for (1) Change of Judge and (2) Writ of Habeas Corpus Ad Testificandum are affirmed. The portion of the judgment regarding the transfer of sole legal and physical custody of the minor child to Ms. Beckwith is reversed. The portion of the judgment restricting M\ Giles’ visitation with his minor child is reversed. The portion of the judgment modifying Mr. Giles’ child support obligation is void.

The case is remanded to the trial court (1) to hear and consider evidence relating to all relevant factors in the determination of the best interest of the minor child including those factors enumerated in § 452.375 as to whether child custody should be changed; (2) to make the specific findings of fact as requested by Mr. Giles and required by § 452.400 regarding the visitation of Mr. Giles and the parties’ minor child; and (3) to amend the judgment as it pertains to Mr. Giles’ child support obligation by changing the amount of monthly payments from $350.00 to $300.00 per month.

EDWIN H. SMITH, P.J., and ELLIS, J., concur.

      . Prior to the enactment of § 491.230.2, whether an inmate should be allowed to appear personally was a matter addressed to the sound discretion of the trial court. After the enactment of § 491.230.2, the legislature continued to give the trial court discretion in determining whether an inmate should be allowed to personally appear. See § 491.230.2(2) (which states in pertinent part that after a showing of substantial and irreparable injustice, the “trial judge may issue a writ of habeas corpus ad testificandum.” (Emphasis added).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Sharon BLOSS, Respondent, v. PLASTIC ENTERPRISES & Hartford Ins. Co., Appellants.
    No. WD 58217.
    Missouri Court of Appeals, Western District.
    Submitted Oct. 11, 2000.
    Decided Dec. 5, 2000.

      Thomas R. Hill, Kansas City, for Appellant.
    Eric T. Lanham, Kansas City, for Respondent.
    Before SMART, P.J.; ELLIS and LAURA DENVIR STITH, JJ.
   PER CURIAM:

Appellants, Plastic Enterprises (“Plastic”) and Hartford Insurance Company (“Hartford”), appeal an award granted to Plastic’s employee Sharon Bloss in her worker’s compensation claim against the company. The administrative law judge (“ALJ”) granted Ms. Bloss the award on April 1, 1999, and it was upheld on an appeal to the Missouri Labor and Industrial Relations Commission (“Commission”). The appellants argue that the Commission erred because Ms. Bloss was awarded compensation for a mental disorder which predated her work-related accident and which is attributable to circumstances unrelated to work. We affirm the Commission’s award of compensation.

Factual Background

We review the facts in the light most favorable to the Commission’s decision. West v. Posten Constr. Co., 804 S.W.2d 743, 744 (Mo. banc 1991). On March 7, 1994, Sharon Bloss, age forty three, slipped and fell at her place of employment, Plastic Enterprises, where she was employed as a “lead person machine operator.” Ms. Bloss slipped on oil that had been spilled onto the floor. As she fell, she lost her grasp on the machine part she was carrying, and fell onto the machine part, landing on it with her lower left back. Ms. Bloss gave notice of the accident to her employer on the date that it occurred and signed an “Employee Accident Statement” on that day, as well. Ms. Bloss required immediate medical attention for injuries she sustained in the accident, and Plastic sent her to Dr. Amir Hemaya, who examined her on the date of the accident. The doctor diagnosed a contusion of the posterior hip. He prescribed medication and returned her to full-duty work. The next morning, however, Ms. Bloss experienced severe low back pain. She went back to work on March 11, 1994, performing her regular duty tasks, which included much physical labor. When Ms. Bloss returned to Dr. Hemaya on March 14, 1994, she told him of pain and stinging in her lower back and thigh. Again, on March 22, 1994, she complained of continuing back and leg pain to Dr. Hemaya.

In a follow-up examination on April 4, 1994 with Dr. Hemaya, Ms. Bloss reported back discomfort as well as pain over the anterior and posterior thigh. The doctor referred Ms. Bloss to Dr. Tillema, an orthopedic surgeon, for evaluation. Dr. Tillema examined her on April 13, 1994, and concluded that she had experienced a “strain and contusion of the low back” in the earlier fall at work. Dr. Tillema prescribed a course of physical therapy and conservative medical treatment for her low back, hip, and leg pain, and throughout her treatment she continued to attempt to perform her job, until July of 1994.

In early July of 1994, Ms. Bloss’ pain had worsened to the point that she could not get out of bed. She went to see her family physician, Dr. Whitley, who took her off work temporarily. When she returned to work in the middle of July, she was given the job of material handler. She testified that she attempted to continue to work in spite of her severe back pain, which she contends worsened over the months of her employment after her fall.

Ms. Bloss was examined and treated by Dr. Tillema for her back pain on several occasions between April 13, 1994 and November 9, 1994, and her condition did not improve; in fact, her pain persisted and worsened during this treatment period. Dr. Tillema believed Ms. Bloss was suffering from some type of “symptom magnification disorder.” He did not believe that there was a good chance to assist Ms. Bloss with either pain management or a work hardening program. He therefore imposed permanent lifting, pulling, and bending restrictions, rated her physical disability as a twelve-percent partial, permanent disability, and released her from his care. Also in 1994, Ms. Bloss was examined by a company health care provider who diagnosed lumbar radiculopathy, recommended lumbar steroid epidural injections, and limited Ms. Bloss to light duty work assignments.

Ms. Bloss returned to her family physician, Dr. Whitley, as well. He restricted her to light-duty work from July of 1994 to early January of 1995. On January 6, 1995, Dr. Whitley determined that Ms. Bloss could not work “because of the continuing pain and the effects of the injury” and he removed her from employment indefinitely. Ms. Bloss testified that her back and leg pain arose after and because of the March 7, 1994 workplace accident and that her condition worsened to the point that in January of 1995 she was unable to work or perform the basic activities of daily living. Her husband’s testimony before the ALJ verified her testimony with regard to her inability to perform basic daily activities.

Dr. Whitley has continued to treat Ms. Bloss, whose condition has not improved since her last date of employment. Dr. Whitley testified that after June 13, 1995, her pain had become a “chronic situation”, that she is in constant pain as a result of the March 7, 1994 back injury, that her symptoms have been consistent over the course of his treatment, and that he sees no evidence of “malingering”. The doctor testified that within a reasonable degree of medical certainty Ms. Bloss is “one hundred percent disabled at this time with the present set of circumstances.” Dr. Gregory L. Pucci, a neurosurgeon who examined Ms. Bloss in February of 1996, confirmed Dr. Whitley’s assessment. After being found to be permanently disabled from gainful employment by the Social Security Administration, Ms. Bloss began receiving Social Security disability benefits in April of 1997.

The testimony of numerous experts was presented to the ALJ at Ms. Bloss’ hearing on behalf of both the appellants and Ms. Bloss. There was disagreement among the experts about whether Ms. Bloss’ condition could benefit from surgical intervention. The ALJ appointed Dr. Edward Prostic, an orthopedic surgeon, to perform an independent medical examination of Ms. Bloss and to render appropriate medical opinions based on that examination and based on his review of the pertinent medical records. Dr. Prostic expressed the opinion that Ms. Bloss had sustained a work-related injury to her back in the March 7,1994, fall and that she now suffered from a symptom magnification disorder. He stated that he did not believe that she would respond favorably to surgery. He stated that her symptom magnification disorder resulted from psychological reasons and was not motivated by a desire for financial gain. The doctor explained that this disorder is psychologically based and causes the brain to amplify pain signals, which intensifies the experience of pain. She has an actual, objective basis for her pain, which is increased by the psychological overlay. As a result of this, Dr. Prostic opined that Ms. Bloss was totally disabled from gainful employment at the time he examined her. That Ms. Bloss’ chronic pain disorder has a psychological dimension has been acknowledged by both treating and examining doctors, including Dr. Tillema, Dr. Prostic, and Dr. Williamson (another orthopedic surgeon who examined Ms. Bloss).

Dr. Montgomery, a behavioral pain management specialist, testified that Ms. Bloss’ psychological barriers would not permit her to benefit from psychotherapy or rehabilitation. Other psychologists who served as expert witnesses in this case concurred in this opinion. The following doctors expressed the opinion that Ms. Bloss is permanently disabled from gainful employment as a direct result of the physical trauma sustained on March 7, 1994, and of the psychological condition resulting directly therefrom: Dr. Butts (a clinical psychologist with extensive experience in pain disorders), Dr. Whitley, Dr. Prostic, and Dr. Pucci. Additionally, Lane Sanders, the only vocational rehabilitation expert to testify, testified that Ms. Bloss could not compete in the open labor market at this time and is unemployable.

The ALJ found Ms. Bloss to be permanently and totally disabled, pursuant to § 287.200, RSMo 1994, and awarded her compensation benefits accordingly, finding that the “preponderance of the credible medical evidence supports a finding of medical causation and, specifically, attribution of Claimant’s low back pain and chronic pain/symptom magnification disorder to the March 7, 1994, work-related accident.” The ALJ found also that the overwhelming weight of the medical evidence demonstrated that the claimant has experienced a chronic pain/symptom magnification disorder as a result of the March 7, 1994, accident; that although the claimant may have had a psychological profile making her prone to pain hypersensitivity, she had not previously experienced any episode of chronic pain disorder; and that it was more probable than not that the fall at her workplace was the causal event for the pain disorder.

On appeal by Ms. Bloss’ employer, Plastic, the Commission affirmed the findings and award of the ALJ on January 7, 2000. Plastic and its insurer, Hartford Insurance Company, appealed that decision to this court.

Standard of Review

The statute that governs the standard of review to be applied by this court in an appeal of a workers’ compensation award, § 287.495.1, RSMo Cum.Supp.1998, states:

... The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award. (Emphasis added.)

In reviewing a workers’ compensation award, we review the findings of the Commission and not those of the ALJ. Kaderly v. Race Bros. Farm Supply, 993 S.W.2d 512, 514 (Mo.App.1999). The complete process to be applied when reviewing an award of the Commission can be found in detail in Davis v. Research Medical Center, 903 S.W.2d 557 (Mo.App.1995). The Davis process can be summarized as follows: The reviewing court first examines the whole record, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the award, in order to determine if the record contains sufficient competent and substantial evidence to support the award. Id. at 571. If the court finds sufficient competent and substantial evidence to support the award, it then determines whether or not the award is against the overwhelming weight of the evidence. Id.

Analysis

The appellants present seven points on appeal, the first six of which can be addressed under the two major categories: (1) Back Injury and (2) Symptom Magnification Disorder.

(1) Back Injury: The appellants contend that the claimant’s back injury did not “arise out of and in the course of her employment,” as required by § 287.020.3 RSMo 1994, in that her fall was not a “substantial factor” (§ 287.020.3(2)(a); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App.1998)) with regard to the cause of her injury, since she landed on her left buttock, according to appellants, and not on her back. An injury is compensable only if it is clearly work-related, and an injury is “clearly work related” only if work was a. “substantial factor” in the cause of the injury and the resulting medical condition. § 287.020.2; Cahall, 963 S.W.2d at 372. An injury is not compensable, however, if work was merely a “triggering or precipitating factor.” § 287.020.2; Cahall, 963 S.W.2d at 372.

On the other hand, “[ajwards for injuries ‘triggered’ or ‘precipitated’ by work are nonetheless proper if the employee shows that the work is a ‘substantial factor’ in the cause of the injury.” Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853 (Mo. banc 1999). A work-related accident can be both a triggering event and a substantial factor. Cahall, 963 S.W.2d at 372. Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission, Id., and the reviewing court may not substitute its judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. See Kaderly, 993 S.W.2d at 514 (citing Davis, 903 S.W.2d at 571).

The appellants also contend, in their first point, that the Commission erred in awarding the benefits, because case law mandates that the Commission cannot cast aside “competent, substantial, and undisputed testimony” (Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 61 (Mo.App.1996)) and, according to the appellants, the Commission did so with the expert testimony of Dr. Hemaya and Dr. Tillema. The Commission is not required to accept competent substantial evidence as true, since the Commission is the sole judge of the credibility of the witnesses. Garibay, 930 S.W.2d at 61. The Commission “cannot, nevertheless, arbitrarily cast aside competent, substantial, and undisputed testimony of witnesses who are not shown by the record to have been impeached.” Id. On the other hand, this court will not substitute its interpretation of factual issues for that of the Commission even if it would have made a different determination under the circumstances. Lakeman v. Treasurer of Missouri, 923 S.W.2d 499, 501 (Mo.App.1996).

Ms. Bloss correctly points out that the Commission is to be the sole judge of the credibility of witnesses and that it has “sole discretion to determine the weight to be given expert opinions,” citing Gausling v. United Industries, 998 S.W.2d 133, 136 (Mo.App.1999). Therefore, as Ms. Bloss convincingly argues, this court must view the evidence in the light most favorable to the Commission’s decision and uphold that decision if it is supported by competent and substantial evidence. Gausling, 998 S.W.2d at 135-36. She points out, further, that this court may set aside the Commission’s findings regarding medical causation and the award itself only if “they are clearly contrary to the overwhelming weight of the evidence.” Id. at 136. In essence, Ms. Bloss argues that the appellants’ attempt to show that she did not sustain a lower back injury in the accidental fall is without merit, as the pertinent medical records and expert medical testimony discloses. The Commission found her argument convincing, and because we do not perceive that such a finding is “clearly contrary to the overwhelming weight of the evidence,” we affirm the Commission’s judgment on this point.

(2) Symptom Magnification Disorder: The appellants’ second overriding claim is that the claimant’s symptom magnification disorder did not “arise out of and in the course of her employment” because it was not a “substantial factor” with regard to the cause of her mental injury. Kasl, 984 S.W.2d at 853. To be compensa-ble, an accident must be “clearly work related,” which means that the accident must be “unique” to the work. Id. at 853. The appellants assert that Ms. Bloss’ symptom magnification disorder was not “directly, proximately and substantially” caused by her employment, as required by Tibbs v. Rowe Furniture Corp., 691 S.W.2d 410, 413 (Mo.App.1985), in that her mental condition is a result of her dysfunctional personality which pre-existed the March 7, 1994, slip and fall accident. Tibbs points out that “[m]ental conditions are compensable under the Worker’s Compensation Law provided they are shown to have been directly and proximately caused by the [work-related] accident,” but that such a causal connection must be proven by “clear evidence.” Id. at 412-13.

The appellants argue, additionally, that the Commission also erred (1) because the law mandates that an objective standard be utilized in mental injury claims (§ 287.120.8; Williams v. DePaul Health Center, 996 S.W.2d 619, 627 (Mo.App.1999)), and here objective evidence from three behavioral tests show that her mental condition stems from a personality disorder which pre-existed the accident; and (2) because § 287.120.9 and Williams, 996 S.W.2d at 629, mandate that a mental injury resulting from a good faith job demotion is not compensable, and, appellants contend, Ms. Bloss’ mental disorder began after her job demotion to material handler.

The Williams court opined that § 287.120.8 requires that “objective standards and actual events” be used to ascertain whether work-related stress “was extraordinary and unusual.” Williams, 996 5.W.2d at 627. Unfortunately, as the court noted, the statute “does not clearly set forth what ‘objective standards’ should be used to discern the ‘extraordinary and unusual’ nature of an employee’s work-related stress.” Id. However, an injured employee must always show a causal connection between the'injury and the employment in order to recover compensation, “and medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause.” Id. at 631. Because the Commission may determine what weight it will accord expert testimony on medical causation, “[w]here the right to compensation depends upon which [of] two conflicting medical theories should be accepted, the issue is peculiarly for the Commission’s determination.” Id.

The appellants essentially base all their arguments on and reinforce them with the following factors: The one dissenting commissioner’s opinion that claimant’s fall was not the cause of her mental disorder; the claimant’s behavioral test results showing a histrionic personality disorder; the claimant’s dysfunctional personality as evidenced by alcoholism, drug abuse and hospitalization for mental issues predating the slip and fall accident; the fact that the claimant had been previously released by both Drs. Hemaya and Tillema with no permanent disability and no activity restrictions; and evidence of claimant’s anger over her job demotion and her poor coping skills as applied to that anger.

We agree with the Commission’s findings that there is no dispute in the record and no argument to the contrary by appellants that Ms. Bloss is now permanently and totally disabled from employment; that she was never disabled from employment prior to her employment with Plastic; that she sustained a physical injury to her lower back region in the course and scope of her employment; that she is suffering from a symptom magnification disorder that arose after the on-the-job accident; and that she experiences disabling pain with both physical and psychological components, which renders her permanently unable to perform any employment.

The ALJ found that the “[claimant is a credible witness regarding the nature and extent of her pain symptoms and the physicians whose testimony has been taken concur that Claimant is not a malingerer.” The ALJ wrote further: “Although the Claimant’s symptoms would be unusual if only a physical injury were involved, the psychological overlay arising naturally and directly therefrom has caused permanent total disability.”

Ms. Bloss had never been disabled from gainful employment prior to the slip and fall accident and her work record was exemplary both before and after the accident, regardless of her temporary personal setbacks. Appellants’ own witness, Ms. Bloss’ supei-visor at Plastic, testified that she exercised great efforts in attempting to work through her injuries after the slip and fall accident of March 7, 1994. Ms. Bloss complains, and we agree, that instead of focusing on her diagnosed psychological impairment, the appellants attempt to paint her as a bad person by pointing to wholly irrelevant evidence of childhood sexual abuse and marital problems that pre-date by fifteen years or more the March 7, 1994, injury and symptoms arising therefrom. Also, appellants point out problems Ms. Bloss has had with substance abuse and depression even though no treating or examining physician has attributed any of her present physical or psychological problems to either substance abuse or a prior menopausal-related depression.

The only evidence presented by appellants with regard to the medical causation of her psychological condition was the testimony of a psychologist (Dr. Haynes) who never met with nor examined her and yet drew conclusions about the origins of her present pain disorder merely through his examination of her medical records. And, yet, he too confirmed that Ms. Bloss does experience or perceive pain. He did not testify to a lack of a causal connection between the slip and fall accident and her present impairment, and he did not allege that she is capable of gainful employment. Dr. Haynes’ testimony, according to Ms. Bloss, consisted of mere speculation about possible pre-existing stressors that may have contributed to her condition. The Commission agreed with Ms. Bloss’ contentions. We cannot say that the Commission’s conclusions were not supported by the evidence.

Conclusion

This court may modify, reverse, remand for rehearing, or set aside the award only if we find that the Commission acted without or in excess of its powers; that the award was procured by fraud; that the facts found by the Commission do not support the award; or that there was not sufficient competent evidence in the record to warrant the making of the award. “This court can disturb the Commission’s decision only if there is no competent and substantial evidence to support the Commission’s award or, in the alternative, such evidence is clearly contrary to the overwhelming weight of the evidence.” Stawizynski v. J.S. Alberici Const. Co., 936 S.W.2d 159, 162 (Mo.App.1996). Bearing these rules of law in mind, we find that the Commission’s decision is supported by competent and substantial evidence, and we therefore affirm the Commission’s decision and uphold the award of disability benefits to Ms. Bloss.

      . All statutory references are to Revised Statutes of Missouri 1994, unless otherwise noted.

      . That procedure was explained by the Davis court:
      ... The reviewing court may not substitute its judgment on the evidence for that of the Commission. The weight of the evidence and the credibility of witnesses are ultimately for the Commission. The court applies a two-step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission’s award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. In doing so, it takes into consideration the credibility determinations of the Commission....

        Davis, 903 S.W.2d at 571 (emphasis added).

      . Appellants’ seventh point makes the less significant argument that the Commission erred in finding that appellants failed to timely answer Ms. Bloss’ amended claim for compensation because the issue was not raised in a timely fashion and because the law mandates that the issue of causation cannot be established by default. This claim is not significant because the Commission clearly stated that this issue did not enter into its decision to award disability compensation to Ms. Bloss. The Commission determined that Ms. Bloss' psychologically-related chronic pain disorder, rendering her totally and permanently disabled, was caused by her fall at work, and the Commission stated that this finding of causation "is supported by the record as a whole and is not dependent upon a finding that the employer/insurer admitted a causal connection by failing to file a timely answer.”

      . Section 287.020.3 states:
      (1) In this chapter the term “injury” is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee....
      (2) An injury shall be deemed to arise out of and in the course of the employment only if:
      (a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and
      (b) It can be seen to have followed as a natural incident of the work; and
      (c) It can be fairly traced to the employment as a proximate cause; and
      (d) It does not come from a hazard or risk unrelated to the employment....

      . Section 287.120.8 states: "Mental injury resulting from work related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.”

      . Section 287.120.9 states: “A mental injury is not considered to arise out of and in the course of the employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer.”


author: HOWARD, Judge. HOLLIGER, Judge,

text:
    In the Matter of K.W. and J.S. a/k/a K.W. T.E.S. and B.J.S., Appellants, v. D.J.L., Jr., and R.D.L., Respondents.
    No. WD 57175.
    Missouri Court of Appeals, Western District.
    Dec. 5, 2000.
    See also, In the Matter of K.W. and J.S., 32 S.W.3d 678.
    Bradley P. Grill, Kansas City, for Appellants.
    N. William Phillips, Milan, for Respondents.
    Jack N. Peace, Trenton, Guardian ad litem.

      Before SPINDEN, C.J., and HOWARD and HOLLIGER, JJ.
   HOWARD, Judge.

This case involves the adoption of two young girls. The girls’ foster parents (hereinafter “the foster parents”) filed a petition for adoption of the girls in the Circuit Court of Grundy County, Missouri, on November 5, 1997. Their maternal grandfather and his wife, their step-grandmother, (hereinafter “the grandparents”) filed a petition for transfer of custody and adoption of the girls in the Circuit Court of Harrison County, Missouri, on November 12, 1997. That case was subsequently transferred to Grundy County. On March 22, 1999, the court entered a judgment granting the foster parents’ petition for adoption. Then, on March 23, 1999, the court entered a judgment denying the grandparents’ petition. This opinion involves the grandparents’ appeal from the trial court’s judgment granting the foster parents’ petition for adoption.

We find that the grandparents lack standing in this appeal and therefore sustain the foster parents’ motion to dismiss.

Motion to Dismiss

The foster parents have moved to dismiss the grandparents’ appeal from the judgment granting their petition for adoption on the grounds that the grandparents were not parties to that proceeding, and the cases were not consolidated. They allege that the grandparents lack standing under § 512.020 RSMo 1994 to bring the appeal.

As noted above, the foster parents and grandparents filed two separate petitions for adoption of the two girls, both were on file by individual case numbers in Grundy County. The parties do not dispute that the cases were not formally consolidated by an order of the court. However, the grandparents argue that the trial court “informally” consolidated the eases, thereby making them parties to the foster parents’ action. The foster parents, on the other hand, argue in their motion to dismiss that “[the grandparents] were not present, did not testify, did not call witnesses, and their attorney did not cross-examine or present any arguments” in their case.

“The right to appeal is purely statutory.” Oberhellmann v. Oberhellmann, 950 S.W.2d 487, 488 (Mo.App. E.D.1997); Missouri Rule of Civil Procedure 81.01 (1999). In order to appeal the lower court’s judgment granting the foster parents’ adoption petition, the grandparents must have been “parties] to [the foster parents’] suit.” § 512.020 RSMo 1994; Oberhellmann, 950 S.W.2d at 488. The grandparents argue that they were parties because of the court’s informal consolidation of their case with that of the foster parents.

We consider whether the cases were indeed consolidated. The trial court issued no formal order of consolidation. Neither party moved to intervene in the other’s case. The record on appeal also reveals the following: the trial court held the hearings on the foster parents’ petition for adoption and the grandparents’ petition on the same day, in a back-to-back fashion; the court allowed the grandparents’ attorney to be present at the hearing on the foster parents’ petition and vice-versa; the trial court would not allow the grandparents to participate in any way in the foster parents’ case nor would it allow the foster parents to participate in the grandparents’ case; and separate judgments were issued for the two cases. The circumstances surrounding these cases lead us to conclude that consolidation did not occur. The grandparents point to portions of the transcript that suggest the trial court consolidated the cases. However, there are also indications that the court was operating under the assumption that the cases were entirely separate, but, for the convenience of the parties and all involved, it would be easier to hear the cases on the same day. For example, in discussing pre-trial matters, the trial court explained that, “[it didn’t] think [the grandparents had] any standing for [participating in the foster parents’ hearing.] But [it did] think that [hearing the cases consecutively would] assist what [it] eventually [had] to do in making a decision.” On the day of the separate hearings, the court stated in the beginning that “[it was] hearing these cases, not as consolidated cases, [but] for the convenience of the parties because of duplicity of witnesses as well as convenience of the attorneys and guardian ad litem since we have two different petitions for adoption of the same two children.” (Emphasis added.) Only the grandparents’ attorney, not the grandparents themselves, was present at the hearing on the foster parents’ petition. The grandparents did not participate in the foster parents’ case in any manner.

The Southern District addressed a similar, yet distinguishable, procedural background in In the Matter of M.D.H., 595 S.W.2d 448 (Mo.App. S.D.1980). In competing petitions for adoption were filed. The issue of the appellants’ right to appeal from an order granting adoption to the respondents was addressed. The court found that, as indicated by a recital in the final decree, “because the matter [had] been [upon agreement of the parties] treated as if there had been complete consolidation and cross intervention,” it would consider the issue of whether the adoption granted was proper. Id. at 450. The Southern District discussed that:

The power of the court to consolidate the two actions to the extent they become one action, as distinguished from consolidation for trial, is subject to question. [Citations omitted.] The extent of the order of consolidation in this case does not appear from the record. Nor does it appear that either appellants or respondents made application to intervene in the action brought by the other. [Citations omitted.] This opinion should not be construed as implying that the appellants, because of their status as paternal grandmother and step-grandfather or even as competing petitioners, per se, have a right to appeal from the decree granting respondents’ prayer for adoption.

M.D.H., 595 S.W.2d at 449-50 (emphasis added). Unlike we see no indication that the foster parents’ and grandparents’ separate cases were consolidated into one action. In fact, just the opposite appears. At the November 12, 1998, court proceeding the trial court stated that the cases were “consolidated for trial.” (Emphasis added.) The cases were not consolidated into one action. The separate hearings were held consecutively only for the convenience of the parties, and separate judgments were issued. We find that, on these facts, the grandparents lack standing to appeal the judgment granting the foster parents’ petition. Thus, we dismiss their appeal.

SPINDEN, C.J., concurs.

HOLLIGER, J., concurs in separate opinion.

HOLLIGER, Judge,

concurring.

I concur with the majority opinion for the reason that the grandparents never filed any motion to intervene in the adoption action filed by the foster parents, nor did they file a motion to consolidate their competing adoption cases for all purposes. Nor did the foster parents file any such motions in the grandparents’ adoption action. This court has previously held that there is no right to a full consolidation of competing adoption petitions under Rule 66.01 and has suggested that grandparents have no right to intervene in another’s adoption petition under Rule 52.12(a). In re Adoption of H.M.C., 11 S.W.3d 81, 90-91 (Mo.App.2000). In both instances, the question of permissive intervention under Rule 52.12(a)(2) and consolidation are addressed to the sound discretion of the trial court. Id. The same principles have been applied to hold that intervention by foster parents in a grandparent adoption action is permissive and evaluated under an abuse of discretion standard. In re Adoption of K.L.G., 639 S.W.2d 619, 621 (Mo.App.1982). I do not quarrel with the application of well-settled principles of the law of intervention and joinder described in those cases. Nor do I quarrel with the analysis of our holding in the companion case handed down today holding the grandparents’ appeal moot. In the Matter of K.W. and J.S., 32 S.W.3d 678 (Mo.App.W.D.2000). I perceive no error by the trial court in either appeal that affects the best interests and welfare of the two children involved here.

Rather, I write separately to emphasize the potential for future problems and to suggest that trial judges may want to seriously consider the consequences of denial of permissive intervention requests or full consolidation requests by either grandparents or other adoption petitioners. To leave competing cases totally separate means there is no complete appellate review because of the principles of standing, as in this case, or mootness, as in the companion case. This same predicament would be presented if the trial judge in this case had denied the foster parents’ petition and granted that of the grandparents. I suspect that many trial counsel and some trial judges would not anticipate this result. They should now be forewarned.

      . The grandparents have also appealed the trial court’s judgment denying their petition. In our separate opinion, handed down concurrently with and in accordance with this opinion, we found that appeal moot. In the Matter of K.W. and J.S., 32 S.W.3d 678 (Mo.App.W.D.2000) .


text:
    In the Interest of M.E., M.E., N.E., and M.E., Plaintiffs, Juvenile Officer, Respondent, Department of Social Services, Division of Family Services, Respondent, v. J.E.B. (Natural Mother), Appellant, D.E. (Natural Father), Appellant.
    Nos. WD 58151, WD 58451.
    Missouri Court of Appeals, Western District.
    Dec. 5, 2000.
    Grant Whitlow Smith, Linn, for appellant (Natural Mother).
    Michael Joseph Kuster, Jefferson City, for appellant (Natural Father).
    Cyril Mehrle Hendricks, Jefferson City, for plaintiffs.
    Jeanne Marr Gordon, Jefferson City, for respondent Juvenile Officer.
    Roya R. Hough, Jefferson City, for respondent State of Missouri and Division of Family Services.
    Before BRECKENRIDGE, P.J., ULRICH, J., and HOWARD, J.
   ORDER

PER CURIAM:

J.E.B. (Mother) and D.E. (Father) appeal the judgment of the trial court terminating their parental rights in their four minor children. The court terminated the parental rights of Mother and Father in the children based on section 211.447.4(2)(d), RSMo Cum.Supp.1998, repeated failure to provide the children with adequate food, clothing, shelter, or education, and section 211.447.4(3)(a) and (b), RSMo Cuxn.Supp.1998, persistence of conditions that led to the assumption of jurisdiction of the children. Mother and Father contend that insufficient evidence was presented to support the termination of their parental rights based on these grounds. Father also argues that insufficient evidence was presented to support the court’s findings regarding the factors of section 211.447.6, RSMo Cum.Supp. 1998. The judgment of the trial court is affirmed. Rule 84.16(b).


text:
    In the Matter of K.W. and J.S. a/k/a K.W. T.E.S. and B.J.S., Appellants, v. D.J.L., Jr., and R.D.L., Respondents.
    No. WD 57176.
    Missouri Court of Appeals, Western District.
    Dec. 5, 2000.
    See also, In the Matter of K.W. and J.S., 32 S.W.3d 674.
    Bradley P. Grill, Kansas City, MO, for Appellants.
    N. William Phillips, Milan, for Respondents.
    Jack N. Peace, Trenton, Guardian ad litem.
    Before SPINDEN, C.J., and HOWARD and HOLLIGER, JJ.
   HOWARD, Judge.

This case involves the adoption of two young girls. The girls’ foster parents (hereinafter “the foster parents”) filed a petition for adoption of the girls in the Circuit Court of Grundy County, Missouri, on November 5, 1997. Their maternal grandfather and his wife, the girls’ step-grandmother, (hereinafter “the grandparents”) filed a petition for transfer of custody and adoption of the girls in the Circuit Court of Harrison County, Missouri, on November 12, 1997. That case was subsequently transferred to Grundy County. On March 22, 1999, the court entered a judgment granting the foster parents’ petition for adoption. Then, on March 23, 1999, the court entered a judgment denying the grandparents’ petition. This opinion involves the grandparents’ appeal from' the trial court’s denial of their petition.

In a separate opinion, handed down concurrently with this opinion, this court found that the grandparents lacked standing to appeal the trial court’s judgment granting the foster parents’ petition. In the Matter of KW. and J.S., 32 S.W.3d 674 (Mo.App.W.D.2000). In accordance with that decision, we find that the grandparents’ points on appeal in this matter are moot. Therefore, we dismiss the appeal.

Mootness of Appeal

In In the Matter of K.W. and J.S., supra, we dismissed the grandparents’ appeal from the trial court’s granting of the foster parents’ petition for adoption of the girls. We found that the grandparents lacked, standing to bring an appeal in the foster parents’ case. Thus, this court lacked jurisdiction to hear their appeal in that case. Id.

Given that the adoption of the children by the foster parents is now legally and finally binding as a result of that decision, we do not review the denial of the grandparents’ petition for adoption. Even assuming, arguendo, we found that the grandparents’ petition was wrongly denied, we could not reverse and remand, because the trial court’s granting of the foster parents’ petition is final. Having found that the grandparents lack standing to appeal the trial court’s granting of adoption to the foster parents, the grandparents’ appeal of the denial of their petition for adoption becomes moot. Hall v. Missouri Bd. of Probation and Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App. W.D.1999) (explaining that this court can dismiss for mootness sua sponte, because if there is not an actual and vital controversy upon which to grant relief, this court does not have jurisdiction). There remains no actual and vital controversy upon which we can grant relief. Accordingly, the grandparents’ points on appeal are moot.

We note, however, that we have read the record on appeal in the grandparents’ case. Had we reviewed the case, our standard of review would have dictated that unless we found that the record contained no substantial evidence to support the judgment denying the grandparents’ petition, that the judgment was against the weight of the evidence or that the trial court erroneously declared or misapplied the law, we would have to affirm the trial court’s judgment. In re Adoption of H.M.C., 11 S.W.3d 81, 86 (Mo.App. W.D.2000). The record revealed no reversible error in the trial court’s judgment denying the grandparents’ petition for adoption.

Conclusion

The grandparents’ appeal from the judgment denying their petition for adoption is moot. Thus, we dismiss the appeal.

SPINDEN, C.J., concurs.

HOLLIGER, J., concurs in separate opinion.

HOLLIGER, Judge,

concurring.

I concur in the result but write separately to emphasize the potential problems created when competing adoption petitions are not consolidated or the respective parties do not obtain intervention in the competing actions. The reasons for my concern are more fully expressed in my concurrence to the companion decision handed down simultaneously In the Matter of K.W. and J.S., 32 S.W.3d 674.


author: ANDERSON, C.J.,

text:
    STATE of Tennessee v. Frederick BEAUREGARD.
    Supreme Court of Tennessee, at Jackson.
    Nov. 30, 2000.
    C. Michael Robbins, Memphis, TN, and Gary F. Antrican, District Public Defender, Somerville, TN, for appellant Frederick Beauregard.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Jerry Norwood, Assistant District Attorney, for appellee, State of Tennessee.
   OPINION

ANDERSON, C.J.,

delivered the opinion of the court,

in which BIRCH, HOLDER, and BARKER, JJ., joined.

In this appeal, we consider whether the constitutional principle of either double jeopardy or due process is violated and therefore bars separate convictions for both rape and incest when the offenses arise from a single act committed against the same victim. The Court of Criminal Appeals affirmed the defendant’s convictions for rape and incest. After our review of the record and applicable authorities, we conclude that the separate convictions for rape and incest did not violate double jeopardy principles under the United States or Tennessee Constitutions because the offenses require different elements, different evidence, and have different purposes. We also conclude that the convictions for rape and incest did not violate due process under the United States or Tennessee Constitutions because neither offense was “essentially incidental” to the other. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

BACKGROUND

The defendant, Frederick Beauregard, was charged in a two-count indictment with rape and incest of his thirteen-year-old daughter, S.J. On the day in question, S.J. was visiting her grandmother’s home, where her father, Beauregard, resided. S.J. was lying down in a bedroom when Beauregard entered the room and sat down on the bed next to her.

Beauregard asked S.J. if she knew how to “nut” and whether S.J. had ever had sex. When Beauregard then began feeling her breasts, S.J. unsuccessfully tried to push Beauregard away. Beauregard pulled S.J.’s jeans and panties down to her knees and “stuck his penis” in her genital area. Beauregard stopped when the telephone in the living room rang and he went to answer it. When Beauregard left the room, S.J. put her clothes back on and used the bedroom telephone to call a friend of her mother’s and ask the friend to pick her up. S.J. then locked herself in the bathroom and remained there until she heard a car pull up to the house and the horn blow.

S.J. was later examined at a hospital by Dr. Ram Madasu. Dr. Madasu found seminal fluid at the entrance to S.J.’s vagina and completed a sexual assault kit. Sherri Harrell, a forensic serologist, tested the items from S.J.’s sexual assault kit and found semen and spermatozoa on the slides. Joe Minor, a forensic scientist, conducted further tests and testified that Beauregard could not be excluded as the source of the semen. Minor opined that the semen was from Beauregard or a close relative.

After considering all the evidence at trial, the jury convicted Beauregard of both rape and incest. The Court of Criminal Appeals affirmed, holding that the separate convictions for rape and incest did not violate double jeopardy or due process protections under the United States or Tennessee Constitutions. We then granted Beauregard’s application for permission to appeal.

ANALYSIS

Double Jeopardy

The double jeopardy clause in the United States Constitution provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb ...” U.S. Const, amend V. Similarly, the Tennessee Constitution states that “no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const, art. I, § 10.

The constitutional right against double jeopardy protects against: 1) a second prosecution after an acquittal; 2) a second prosecution after a conviction; and 3) multiple punishments for the same offense. See Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1435, 63 L.Ed.2d 715 (1980); State v. Denton, 938 S.W.2d 373 (Tenn.1996). In this ease, we must determine whether convictions for both rape and incest constitute multiple punishments for the “same offense.”

In State v. Denton, we established a framework for determining whether a defendant has received multiple punishments for the “same offense.” The reviewing court must consider: (1) the statutory elements of the offenses; (2) the evidence used to prove the offenses; (3) whether there were multiple victims or discrete acts; and (4) the purposes of the respective statutes. Denton, 938 S.W.2d at 381. In applying this analysis in Den-ton, we concluded that double jeopardy precluded separate convictions for aggravated assault and attempted voluntary manslaughter where the offenses were based upon a single act committed against a single victim. Id. at 382.

In this case, the first component of Denton requires a comparison of the statutory elements of rape and incest. The offense of rape is defined, in relevant part, as the “unlawful sexual penetration of a victim” without the victim’s consent and “accompanied by ... [fjorce or coercion.” TenmCode Ann. § 39-13-503 (1997). The offense of incest is defined, in relevant part, as the “sexual penetration ... with a person, knowing such person to be ... [t]he person’s natural ... child.” Tenn. Code Ann. § 39-15-302 (1997). A comparison of the statutory elements of rape and incest demonstrates that the elements are dissimilar. Rape, unlike incest, requires non-consensual sexual penetration accompanied by force or coercion; incest, unlike rape, requires that the victim be the natural child of the defendant, regardless of whether the victim consented.

We next consider the evidence required to establish the offenses of rape and incest. We recognize that the same evidence was necessary to establish the element of “sexual penetration” that is essential for both offenses. Since the remaining elements of each offense differ, however, the evidence required to establish each offense necessarily will differ in these material respects. For example, to establish the incest charge, the State had to prove the family relationship between the defendant and the victim. Conversely, to establish the rape charge, the State had to prove the force or coercion and the lack of consent. Thus, the evidence at trial underlying the rape and incest convictions was different and not identical.

As to the remaining factors under Den-ton, we observe that this case does involve a single victim and a single act of sexual penetration. Finally, the legislative purpose of the separate statutory offenses of rape and incest is similar but distinct. Although both statutes address sexual offenses, the offense of rape is contained within the “offenses against persons” provisions of the statutory code and the offense of incest is contained within the “offenses against family” provisions of the statutory code. The sentencing eommission comments following the incest statute indicates that the statute is intended to “promote family solidarity by prohibiting relationships with anyone with parental authority which may be abused to sexual ends.” TenmCode Ann. § 39-15-302 (1997). As another state court has observed in this regard:

[Tjhe statutes prohibiting incest and criminal sexual penetration achieve different policy objectives. The sanction against criminal sexual penetration is to prevent forcible, nonconsensual sexual activity and to protect a person’s important interest in uncoerced choice of sexual partners. The incest statute, on the other hand, is more narrowly directed toward prohibiting sexual relations, whether consensual or not, between relatives .... Accordingly, there is no double jeopardy impediment to convicting and sentencing ... [a defendant] for both incest and criminal sexual penetration arising out of the same act.

Swafford v. State, 112 N.M. 3, 810 P.2d 1223, 1235 (1991) (internal citation omitted); see also State v. Calle, 125 Wash.2d 769, 888 P.2d 155, 161 (1995) (discussing different purposes served by the offense of rape and the offense of incest). In our view, the statutory offenses of rape and incest have a related but separate legislative purpose and achieve contrasting policy objectives.

Accordingly, application of the Denton analysis to this case reveals that only one factor — that the offenses involved a single victim and a single act — supports Beauregard’s claim that the rape and incest convictions were for the “same offense” and barred by double jeopardy principles. The remaining three Denton factors, however, demonstrate that the offenses are not the same for double jeopardy purposes: the statutory elements of the offenses are dissimilar; the evidence required to establish the offenses differs; and the purpose of each statutory offense is separate and distinct. We therefore conclude that the rape and incest convictions did not constitute the “same offense” and were not barred by double jeopardy principles.

Prior to establishing the analytical framework in Denton, we reached the same conclusion about the offenses of rape and incest. See State v. Brittman, 639 S.W.2d 652 (Tenn.1982) (rape and incest were not the same offense under double jeopardy analysis). Our conclusion is also consistent with a majority of state jurisdictions that have held that convictions for rape and incest arising from a single act are not barred on double jeopardy grounds. E.g., Smith v. State, 62 Md.App. 670, 491 A.2d 587 (1985); Fults v. State, 779 S.W.2d 688 (Mo.Ct.App.1989); Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Martinez v. State, 662 S.W.2d 393 (Tex.Ct.App.1983); State v. Calle, 125 Wash.2d 769, 888 P.2d 155 (1995); State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

In addition to the double jeopardy argument, Beauregard asserts the related claim that convictions for rape and incest are precluded under TenmCode Ann. § 39-ll-109(b) (1991), which states:

When the same conduct may be defined under two (2) or more specific statutes, the person may be prosecuted under either statute unless one (1) specific statute precludes prosecution under another.

(Emphasis added). In discussing this statute in Denton, we observed that the “legislature’s choice of terminology is indicative of its intent that the State be limited to a single conviction under circumstances where a single act exposes an accused to prosecution under more than one statute.” Denton, 938 S.W.2d at 383. We recognized, however, that the legislature’s use of the phrase “may be prosecuted” is problematic and conflicts with court decisions and rules of court that allow the prosecution to charge two or more offenses based on the same conduct in one indictment. Id. at 383 n. 22.

In any event, we conclude that neither Tenn.Code Ann. § 39 — 11—109(b) nor the dicta in Denton supports Beauregard’s contention under the facts of this case. First, our decision in Denton cited with approval State v. Brittman, in which this Court held that rape and incest convictions based on a single act with a single victim were not the “same offense” for double jeopardy purposes. Brittman, 639 S.W.2d at 654. Moreover, the discussion of Tenn. Code Ann. § 39 — 11—109(b) in Denton came after we had applied the four-pronged analysis and concluded that convictions for aggravated assault and attempted voluntary manslaughter that arose out of a single act against a single victim violated double jeopardy principles. It was under those circumstances that § -109(b) provided additional support for our conclusion. In contrast, application of the Denton analysis in this case reveals that the offense of rape and incest were not the “same offense” for double jeopardy purposes. Similarly, the rape and incest statutes do not expressly preclude prosecution or conviction for the other offense. Thus, to construe the statute as broadly as is urged by Beauregard would supplant the framework in Denton in all cases involving a single victim and a single act. This we decline to do.

Due Process

We next consider Beauregard’s argument that the convictions for rape and incest violated due process principles under the United States Constitution or article I, section 8 of the Tennessee Constitution. Beauregard relies on State v. Anthony, 817 S.W.2d 299 (Tenn.1991), in which we held that dual convictions for kidnapping and robbery violate due process when the detention of the victim resulting in the kidnapping conviction is incidental to the robbery. We held that courts must consider:

whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping.... [0]ne method of resolving this question is to ask whether the defendant’s conduct “substantially increased [the] risk of harm over and above that necessarily present in the crime of robbery itself.”

Id. at 306 (emphasis added) (citation omitted).

“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn.1993) (citation omitted). “The flexible nature of procedural due process requires an imprecise definition because due process embodies the concept of fundamental fairness.” Seals v. State, 23 S.W.3d 272, 277 (Tenn.2000) (citations omitted).

Neither the principles of due process nor our decision in Anthony warrant relief under the facts of this case. In Anthony, we addressed the “particularly anomalous nature of the kidnapping statute,” in which the offense of kidnapping is inherent in another offense, such as rape or robbery. That concern is not applicable in this case. The offense of incest can be committed without committing rape because one may have consensual sex with a person who is within the prohibited relationships. Likewise, the offense of rape can be committed without committing incest. In short, neither offense is “necessarily incidental” to the other. Accordingly, Beauregard’s convictions for both rape and incest were in no way fundamentally unfair and did not violate due process under the United States or Tennessee Constitutions.

CONCLUSION

We hold that, under this Court’s test announced in State v. Denton, 938 S.W.2d 373 (Tenn.1996), Beauregard’s convictions for rape and incest did not violate double jeopardy principles under the United States Constitution or article I, section 10 of the Tennessee Constitution. We also conclude that the convictions did not violate due process under the United States Constitution or article I, section 8 of the Tennessee Constitution. We therefore affirm the judgment of the Court of Criminal Appeals. It appealing that the defendant is indigent, costs of appeal are taxed to the State for which execution may issue if necessary.

DROWOTA, J., not participating.

      . Due to the age of the victim and the nature of the offenses, we identify the victim by initials only.

      . See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (setting forth a test which compares the elements of each offense for purposes of determining whether two offenses are the "same”).

      . See Duchac v. State, 505 S.W.2d 237 (Tenn.1973) (setting forth a test which compares the evidence used to establish each offense for purposes of determining whether two offenses are the "same”).

      . In addition to the natural child, incest may also be committed with “[the] natural parent, child, grandparent, grandchild, uncle, aunt, nephew, niece, stepparent, stepchild, adoptive parent, adoptive child” or a "person’s brother or sister of the whole or half-blood or by adoption.” Tenn.Code Ann. § 39-15-302(a)(1) and (2) (1997).

      .Indeed, in Denton we noted that the statutory elements of the offenses of aggravated assault and attempted voluntary manslaughter indicated that the offenses are separate for purposes of double jeopardy, but nonetheless reasoned that “[b]ecause the evidence ... consisted of a single attack by [defendant] on the victim, the State necessarily relied on the same evidence to establish both” charges. Denton, 938 S.W.2d at 382.