author: JOHN E. PARRISH, Presiding Judge.

text:
    Stacie MITCHEM, Plaintiff-Respondent, v. James R. GABBERT and Matt Helm d/b/a G & H Lawn Maintenance and G & H Lawn Maintenance Company, Defendants-Appellants, and Crystal R. Tryon, Defendant-Respondent.
    Nos. 23305, 23410.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 21, 2000.

      Paul F. Sherman, Daniel, Clampett, Powell & Cunningham, L.L.C., Springfield, for appellants.
    Arthur E. Curtis, Ben K. Upp, Greene & Curtis, L.L.P., Springfield, for respondent Stacie Mitehem.
   JOHN E. PARRISH, Presiding Judge.

James R. Gabbert and Matt Helm were partners in a lawn maintenance business. They and Crystal Tryon were defendants in a negligence action brought by Stacie Mitehem (plaintiff). Judgment was entered for plaintiff following a jury trial. Plaintiff was awarded damages in the amount of $1,000,000. Five percent of fault was assessed to defendants Gabbert and Helm. Ninety-five percent was assessed to defendant Tryon. Defendants Gabbert and Helm appeal.

Defendants Gabbert and Helm filed two notices of appeal. One was directed to a document filed October 29, 1999, denominated “Amended Judgment.” That document did not adjudicate a cross-claim of defendant Tryon against defendants Gab-bert and Helm. On December 28, 1999, the trial court filed a further document denominated “Amended Judgment” declaring there was no just reason for delay in the entry of judgment as permitted by Rule 74.01(b). Defendants Gabbert and Helm filed a second notice of appeal directed to that amended judgment.

This court ordered the two appeals consolidated, No. 23305 being the appeal directed to the October 29 judgment and No. 23410 being the appeal directed to the December 28 judgment. This court finds that the judgment in No. 23305 was not a final judgment. It did not dispose of all claims for relief that were pending in the case before the trial court nor did it establish, as permitted by Rule 74.01(b), that there was no just reason for delay in the entry of judgment. That appeal is dismissed. See Bellon Wrecking & Salvage Co., Inc. v. Dave Orf, Inc., 956 S.W.2d 437, 438 (Mo.App.1997).

On August 5, 1997, plaintiff, Corine Thurman and defendant Tryon were passengers in Ms. Tryon’s automobile. Ms. Tryon was driving. They were traveling from Springfield en route to Bolivar. Ms. Thurman explained that she, plaintiff and Ms. Tryon worked together at a restaurant; that Ms. Tryon planned to go to Bolivar the afternoon of August 5 “to have her nails done.” Ms. Tryon asked the other two if they would like to go with her. She was asked if there was a particular reason that she and plaintiff went with Ms. Tryon. Ms. Thurman said they were all friends; that,they were “going to have a girl’s day that day.”

Ms. Tryon’s vehicle approached Slagle, Missouri, on Missouri Route 13. Route 13 is a divided highway at that location. Ms. Tryon’s vehicle was northbound in the right-hand lane. A pickup truck was in front of the Tryon vehicle, also in the right-hand lane. The pickup was towing a trailer carrying lawn mowers and other equipment. Defendant Gabbert was driving the pickup. Defendant Helm was a passenger.

The pickup was traveling at a slower speed than Ms. Tryon’s vehicle. She pulled her vehicle into the left-hand lane to pass. As Ms. Tryon’s vehicle came alongside the pickup, the pickup moved to the left toward her lane. Ms. Tryon believed the pickup and trailer were “blocking the entire lane.” She testified at trial, “I started to apply my brakes, and then I noticed that I wasn’t going to be able to stop, so I left the road and went over into the Pitts Mobile Home parking lot.”

Ms. Tryon’s vehicle slid through a gravel parking lot and grass, spun around facing south, crossed back over the northbound lanes of Highway 13 and rolled over. Plaintiff was injured.

The first allegation of trial court error by defendants Gabbert and Helm, their Point I, asserts the trial court erred in refusing certain jury instructions they tendered during the instruction conference. The proposed instructions were marked Nos. A, B and C and filed in the trial court records. Instruction No. A was patterned after MAI 2.05 for purposes of submitting a packet that would permit the jury to find that plaintiff and defendant Tryon were “acting in the operation of [Ms. Tryon’s] vehicle as part of a joint enterprise” at the time of the accident. Instruction No. B was a proposed verdict director, designated “M.A.I. 37.05(1) modified” and “18.01 modified,” for finding a joint enterprise and imposing any percentage of fault assessed to defendant Tryon to plaintiff. Instruction No. C was a verdict form for use by the jury in declaring whether plaintiff would be “responsible for any negligence of defendant Tryon.” Instruction No. C was designated “M.A.I. 18.01 (Modified); 36.17(A).”

Although copies of the refused instructions are included in the legal file component of the record on appeal, they are not set forth in Gabbert’s and Helm’s appellate brief. Rule 84.04(e) requires that when a point relates to refusal of an instruction, “such instruction shall be set forth in full in the argument portion of the brief.” “Rule 84.04 is to be strictly enforced.” McMullin v. Borgers, 806 S.W.2d 724, 727 (Mo.App.1991). An appellant who asserts instructional error but does not set forth the instruction in question in the argument portion of his or her brief, fails to preserve the issue for appeal. Ellis v. Jurea Apartments, Inc., 875 S.W.2d 203, 205 (Mo.App.1994); McMullin, supra, at 727-28. An appellate court may, however, review the claim for plain error. Rule 84.13(c). “Plain error occurs only when the reviewing court deems manifest injustice or miscarriage of justice occurred.” St. Francis Medical Center v. Hargrove, 956 S.W.2d 949, 952 (Mo.App.1997).

The essential elements of a joint enterprise are (1) an agreement, express or implied, among the members of the group, (2) a common purpose to be carried out by the group, (3) a community of interests, among the group, in that purpose, and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. McSorley v. Hauck, 883 S.W.2d 562, 566 (Mo.App.1994). In refusing to instruct on joint enterprise, the trial court found there was no evidence of an equal right of control of the vehicle by its occupants. This court agrees.

As a general rule, the negligence of a driver of an automobile will not be imputed to a mere guest or passenger who has no control or authority over the automobile or over the driver. Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 213 S.W. 818, 822 (1919); Counts v. Thomas, 63 S.W.2d 416, 419 (Mo.App.1933). In order for a passenger to be found to be engaged in a joint enterprise involving use of an automobile, the passenger must be found to have an equal right to be heard in the manner in which it is driven. Manley v. Horton, 414 S.W.2d 254, 260 (Mo.1967), citing Prosser on Torts 2nd Ed., § 65.

Defendants Gabbert and Helm rely on testimony of plaintiff and defendant Tryon in asserting that plaintiff had an equal right of control with Ms. Tryon and that a joint enterprise existed with respect to the intended journey from Springfield to Bolivar. Plaintiff was asked if she had ridden with Ms. Tryon before the day of the accident. She replied that she had. Plaintiff was asked if Ms. Tryon was “the kind of person that if you had told her to slow down, if you felt like she was going too fast, would she have slowed down?” Plaintiff answered, “Yes, sir.”

Ms. Tryon was asked, “If [plaintiff] had asked you to slow down that day, would you have?” She answered, “Of course.”

The responses of plaintiff and defendant Tryon to the questions asked do not, as a matter of law, show a joint right of control. Unlike the facts in cases in which Missouri courts have found a joint enterprise among automobile travelers, plaintiff and Ms. Tryon were not shown to have an agreement between themselves or with Ms. Thurman to share expenses of the trip to Bolivar or driving responsibilities. There was no evidence that Ms. Tryon’s passengers had any voice in the route that was to be traveled. The trip was of relatively short distance, unlike the interstate travel that was involved in Manley v. Horton, supra, and Matta v. Welcher, 387 S.W.2d 265 (Mo.App.1965), where it was held there was sufficient evidence to establish a joint enterprise between a driver of an automobile and its passengers. In Manley and Welcher, unlike this case, there were agreements between occupants of a vehicle owned by one of the travelers to share driving responsibilities and expenses of the trips.

This court finds no manifest injustice or miscarriage of justice in the trial court’s refusal to submit Instruction Nos. A, B and C tendered by defendants Gabbert and Helm. Point I is denied.

Point II is directed to the admission in evidence of Plaintiffs Exhibits Nos. 42, 43, 44, 45 and 46, collectively referred to as the “Life Care Plan.” Point II asserts the trial court erred in admitting these exhibits in evidence and in admitting testimony of Dr. Terry Winkler about the plan. Defendants Gabbert and Helm argue “the plan contained numerous items which were not shown to be future consequences of plaintiffs injury which were reasonably certain to occur.... ”

The objections defendants Gabbert and Helm made at trial when the exhibits about which they now complain (Plaintiffs Exhibit Nos. 42, 43, 44 and 45) were offered in evidence were, “Same objection as previously noted with the Court,” and “I’ll object ... for the previous reasons noted with the Court.” Prior to Dr. Winkler testifying, the attorney for defendants Gabbert and Helm told the court he wanted to renew his motion in limine. He stated he had previously pointed out to the trial court that “there’s considerable problems with regard to [Dr. Winkler’s] preparation of his Life Care Plan for [plaintiff].” He observed that the life care plan was “not in present value terms.” He argued in support of his “renewal” of the motion in limine that the life care plan “callfed] for the jury to speculate”; that Dr. Wink-ler was not qualified as an economist.

Arguably, the claim of error in Point II was not preserved for appeal. In order to preserve allegations of error in the admission of evidence, the complaining party must object to the evidence when it was tendered at trial. Rule 78.09. In a jury case, the matter must be included in a timely-filed motion for a new trial. Rule 78.07(a).

The motion in limine of defendants Gab-bert and Helm includes a numbered paragraph subtitled “Dr. Winkler’s Life Care Plan for Plaintiff.” It consists of 70 typewritten lines that cover more than three pages. Albeit anything but concise, the motion does complain about items of minimal cost included in Dr. Winkler’s assessment of plaintiffs future medical needs with respect to “Durable Medical Items,” e.g., the motion complains that the plan includes a cane, a “ ‘lift chair reeliner’ or a multitude of other items.”

Assuming arguendo that the issue in Point II was preserved for this court’s review, the claim has no merit. Dr. Wink-ler is a medical doctor. He examined plaintiff and interviewed her concerning her injuries. He is board certified in physical medicine and rehabilitation and sub-board certified in spinal cord injury medicine. He testified he is a wound care specialist; that he is certified by the Commission on Disability Evaluations as a Life Care Planner. Dr. Winkler testified that the items contained in the life care plan he prepared for plaintiff were based upon a reasonable degree of medical certainty.

The authority on which defendants Gab-bert and Helm rely in support of Point II are Hobbs v. Harken, 969 S.W.2d 318 (Mo.App.1998), and First Nat’l Bank of Fort Smith v. Kansas City Southern Ry. Co., 865 S.W.2d 719 (Mo.App.1993). Those cases, unlike the one that is the subject of this appeal, lacked testimony by a physician or other medical expert that the medical evidence adduced was to a reasonable degree of medical certainty. See § 490.065, RSMo 1994. See also Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821, 826 (Mo.App.1997); Pfeffer v. Kerr 693 S.W.2d 296, 300 (Mo.App.1985). Point II is denied. The judgment is affirmed.

SHRUM and MONTGOMERY, JJ„ concur.

      . The judgment declares the five percent of fault assessed against defendants Gabbert and Helm is assessed against them "as partners in G & H Lawn Maintenance and G & H Lawn Maintenance Company.”

      . Two of the defendants in Manley were on military leave and were traveling from Oklahoma to their homes in Detroit, Michigan, in an automobile owned by one of them.

      . Five members of the air force were en route to a bowling tournament traveling from Shreveport, Louisiana, to Des Moines, Iowa. The automobile in which they traveled belonged to one of the airmen.

      .Although Point II is also directed to Plaintiff's Exhibit No. 46, this court’s review of the record on appeal does not reveal that Plaintiff's Exhibit No. 46 was admitted in evidence. Further, the exhibits about which Point II complains have not been filed with this court although plaintiff's brief contains an appendix that purports to include copies of Plaintiff's Exhibit Nos. 42, 43, 44 and 45.


source: Caselaw Access Project

author: CROW, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Lisa Joyce ESKEW and Jackie Lee Eskew. Lisa Joyce (Eskew) Manley, Appellant, v. Jackie Lee Eskew, Respondent.
    No. 23318.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 21, 2000.

      Terry M. McVey, Crow, Reynolds, Shet-ley & McVey, L.L.P., Kennett, for appellant.
    Barbara A. Godley, Welman, Hively & Godley, L.L.P., Kennett, for respondent.
   CROW, Judge.

The marriage of Lisa Joyce Eskew and Jackie Lee Eskew was dissolved by a decree entered January 14, 1987. The decree awarded Lisa “care and custody” of the parties’ only child, Bryan Patrick Es-kew, born September 24, 1984. The decree granted Jack certain “rights of visitation” with Bryan and ordered Jack to pay Lisa $190 per month child support.

Attached to the decree was a “Property Settlement and Child Custody Agreement” signed by the parties (“the 1987 Agreement”). The decree contained a finding that the 1987 Agreement was not unconscionable. Beneath that finding was a provision that the 1987 Agreement “shall be made a part of this decree.”

One segment of the 1987 Agreement was paragraph 11. It read, in pertinent part:

“[Jack] shall be responsible for the college expenses of the child in an amount equal to the amount of tuition and room and board at the largest state operated university located in the State in which the child resides at the time he reaches college age.”

On July 7, 1998, Jack filed a motion to modify the dissolution decree. Insofar as pertinent to this appeal, the motion included (1) a prayer that the court “establish the parties’ obligation to contribute to the minor child’s college expenses,” and (2) a prayer that the court “order [Lisa] to execute proper forms to effect [Jack’s] claim of the minor child for income tax purposes in alternate years.”

Lisa responded to Jack’s motion with one of her own, praying for an increase in child support.

Following an evidentiary hearing, the trial court entered a “Judgment of Modification” (“the 1999 Judgment”) which incorporated a “Parenting Plan” attached thereto. Two provisions of the Parenting Plan are:

“L. That effective September 1, 1999, [Lisa] have and recover from [Jack] the sum of $468.00 each month for the support of ... Bryan Patrick Eskew. [Jack’s] obligation to pay child support shall abate for the months of June, July and August of each year. If the minor child attends post-secondary education and [Jack’s] obligation to pay child support thus continues past the child’s graduation from high school, child support shall be payable directly to the minor child upon his commencement of post-secondary education.
N. Beginning with tax year 1999, that [Jack] be entitled to claim the minor child as his dependent for all purposes related to federal or state income taxation, and [Lisa] be ordered to execute whatever documents may be necessary to give effect to [Jack’s] claim of said dependency.”

Another provision of the Parenting Plan is paragraph “O.” It orders Jack to pay, “as additional child support,” half the cost each year for Bryan to attend “a post-secondary college, university, or vocational/technical school, state or private.”

Lisa brings this appeal from the 1999 Judgment. She presents two claims of error. Her second point, which this court addresses first, reads:

“The trial court erred in modifying [Jack’s] obligation to pay all of the child’s college expenses to paying one half of the college expenses because there was an insufficient showing of a substantial change of circumstances to justify the modification in that [Jack’s] income had risen substantially since the entry of the original decree more than enough to off set [sic] any rise in the cost of college expenses.”

Am alert reader will recognize Lisa does not challenge the trial court’s authority to reduce Jack’s obligation for Bryan’s college expenses from all (as provided in the 1987 Agreement) to half (as spelled out in paragraph 0 of the Parenting Plan). That is evidently because of § 452.325.2, RSMo 1994, which has remained unchanged since 1974. Under that statute, a trial court is not bound by the parties’ agreement as to child support. Williams v. Cole, 590 S.W.2d 908, 911[2] (Mo. banc 1979); McCreary v. McCreary, 954 S.W.2d 433, 451-52[28] (Mo.App. W.D. 1997). Parties cannot, by agreement, even if incorporated in a dissolution decree, preclude a trial court from modifying child support. Williams, 590 S.W.2d at 911[2]; McCreary, 954 S.W.2d at 451-52[28]. Paying a child’s college expenses is a form of child support. Burton v. Donahue, 959 S.W.2d 946, 949[5] (Mo.App. E.D.1998), citing Leahy v. Leahy, 858 S.W.2d 221, 226-27 (Mo. banc 1993).

In the argument beneath her second point, Lisa insists the evidence showed that during the twelve years and two months between entry of the dissolution decree and the evidentiary hearing on the parties’ motions to modify, Jack’s income increased from just under $21,000 per year to over $36,000 per year. Lisa concedes the cost of sending a child to college also rose during that period. However, she maintains the $278 per month increase in child support imposed by the 1999 Judgment (from $190 to $468), coupled with the higher college costs, would consume less than one-third of the increase in Jack’s income even if he pays all of Bryan’s college expenses. Consequently, declares Lisa, there was no change in circumstances so substantial as to justify any reduction in Jack’s obligation under paragraph 11 of the 1987 Agreement to pay all of Bryan’s college expenses.

Jack’s brief, as one might expect, argues otherwise.

For the reasons that follow, this court holds paragraph O of the Parenting Plan is premature, hence this court does not reach the merits of Lisa’s second point.

Bryan is now sixteen years of age and, presumably, a high school junior. Obviously, when the trial court entered the 1999 Judgment there were no college expenses for either Lisa or Jack to pay. No such expenses will arise until Bryan enrolls in college — if indeed he does — sometime after graduating from high school in 2002. That will be more than three years after the trial court heard the evidence on which the 1999 Judgment is based.

In Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977), a separation agreement entered into concomitantly with a divorce obligated the father to pay child support for any of the parties’ four children who, in the future, attended college. Id. at 891. Several years after the divorce, the father sought modification. Id. By then, the eldest child had graduated from college; the second child was a college junior; the third child was a high school junior; the youngest child “was finishing grammar school.” Id. The trial court ordered the father to pay a specified sum per month per child for each month each child “may be now or in the future may attend any accredited college or university.” Id. at 893.

The appellate court reversed; saying: “There is no showing ... of the ability and capacity of the two younger children for college work, nor any convincing fact or circumstance tending to show the reasonable cost of support and maintenance of any of the children now attending college at the particular institution where they have matriculated or plan to enroll. In these two respects, the decree lacks evidentiary support.”

Id. at 894.

In the instant case, Lisa presented an exhibit showing the “1998-99 Estimated Costs” for a freshman at the University of Kentucky. According to Lisa, the exhibit shows the “annual tuition, room and board costs” at that university totalled $7,810. That was the only evidence from which the costs for an enrolling freshman in the 2002-03 academic year — the year Bryan would enroll if he enters college for the fall semester after high school graduation— could be estimated.

In Bryant v. Lloyd, 747 S.W.2d 648, 649 (Mo.App. W.D.1988), a divorced mother filed a motion seeking more child support from the father of the parties’ two youngest children (their third child had become emancipated). The trial court granted an increase; however, the mother appealed, claiming it was not enough because the second child was a college student (the youngest child, age 13, was living with the mother). Id. The appellate court held the increased amount was all the father could pay, hence the trial court did not err in declining to award more. Id. Noting the youngest child “will reach college age in a few years,” the appellate court said the parties could evaluate her “at or near that time” to determine the financial ability of the father and the capacity of the child for college work. Id.

This court holds the logic of Sunder-wirth and Bryant applies here. Although the evidence demonstrated an increase in Jack’s income since the 1987 Agreement, and likewise showed the cost of a college education had risen since then, the evidence did not — and could not — establish what Jack’s income (or Lisa’s) will be when Bryan is expected to enter college, more than three years after the modification hearing. Furthermore, the evidence did not — and could not — show the cost of a four-year education at the University of Missouri at Columbia for a freshman enrolling at that time.

This court therefore holds the evidence insufficient to support any order regarding payment of Bryan’s college expenses. In so deciding, this court does not ignore Tuning v. Tuning, 841 S.W.2d 264 (Mo.App. S.D.1992). There, the eighteen-year-old son of divorced parents was a high school senior planning to attend the University of Missouri at Columbia. Id. at 265. The mother, as custodial parent, filed a motion to increase the child support she was receiving from the father. Id. The trial court granted an increase. Id. This court reversed because certain statutory requirements and Rule 88.01 were not followed. Id. at 266-67. The relevance of Tuning to the instant case is a passage in the opinion saying:

“Consideration of a child’s college expenses need not wait until he has entered college. In fact, there may be circumstances where, unless those expenses are considered in advance, the child could not attend college. An increase in child support for such future expenses can be made effective at a future date and contingent upon the child’s entry into college.”

Id. at 267[7],

This court recognizes in the instant case, as it did in Tuning, that it may be impractical to wait until Bryan enrolls in college to resolve a dispute about how much of his college expenses Jack should be compelled to pay. Accordingly, if Bryan, upon nearing graduation from high school, decides to attend college, either Lisa or Jack can seek a ruling by the trial court on that issue. When that time arrives, the trial court, mindful of the obligation Jack assumed in paragraph 11 of the 1987 Agreement, will have the benefit of fresh evidence regarding Jack’s and Lisa’s incomes, the tuition, room, board and other college costs, and such scholarships, if any, as Bryan may receive.

Civil Procedure Form No. 14 has evolved so that it now includes a line for “Other extraordinary child rearing costs” (line 6e). The Comment for that line explains: “Post-secondary educational expenses ... are not included in the schedule of basic child support obligations; therefore, these expenses may be included in Form No. 14 as an ‘other extraordinary child-rearing cost’ if the parents agree or the court orders that the parents contribute to payment of these expenses.” The Comment adds: “An order may include the cost of tuition, room and board, books, fees and other reasonable and necessary expenses.” Those explanations are followed by this:

“CAVEAT: A finding by the court ... that the presumed child support amount is unjust or inappropriate is not necessary where the parent obligated to pay support is also ordered to pay any percentage of the other extraordinary child-reading costs of the children who are the subject of the proceeding.”

The trial court, with the benefit of evidence that will be available in 2002, guided by Form 14, will be in a better position then to address the college cost issue than it was when it entered the 1999 Judgment. Accordingly, mindful that Lisa will be entitled to child support of $4,212 per year from Jack until a future modification or until § 452.340, RSMo Cum.Supp.1999, terminates Jack’s child support obligation, this court reverses paragraph 0 of the Parenting Plan incorporated in the 1999 Judgment, leaving paragraph 11 of the 1987 Agreement intact (but, of course, subject to modification).

Lisa’s first point relied on reads:

“The trial court erred in awarding the noncustodial parent ([Jack]) the tax dependency exemption for the minor child because the award of the tax exemption to the noncustodial parent is a deviation from Civil Procedure Form No. 14 in that the amount of child support order [sic] to be paid was calculated pursuant to the schedule of basic child support obligations in Form 14; that said schedule assumes that the parent receiving child support claims the tax exemption and the court made no written or specific finding that the child support under a correctly calculated Form 14 was unjust or inappropriate, nor did the court consider the economic impact in awarding [Jack] the exemption.”

Lisa’s first point attacks paragraph N of the Parenting Plan incorporated in the 1999 Judgment. That paragraph is quoted earlier in this opinion.

In the argument beneath her first point, Lisa asserts the 1987 Agreement and the dissolution decree are silent about “allocation of the tax dependency exemption” and she has always taken it. Jack does not challenge that declaration.

In adjudicating the child support issue, the trial court adopted a Form 14 presented by Jack’s lawyer (“Jack’s Form 14”). Line 1 of Jack’s Form 14 showed a monthly gross income of $893 for Lisa and $3,106 for Jack. Those incomes, together with health insurance costs paid by Jack for Bryan, resulted in a presumed child support amount (line 12 of Jack’s Form 14) of $468 — the amount awarded Lisa by paragraph L of the Parenting Plan incorporated in the 1999 Judgment. That judgment displays a finding by the trial court that $468 per month “is not rebutted as being unjust or inappropriate.”

Lisa points out that prior to the current version of Form 14, which took effect in 1998, trial courts were not required to consider the impact of allocating tax exemptions for children in calculating the presumed child support amount. Coble v. Coble, 931 S.W.2d 206, 209[6] (Mo.App. W.D.1996). In Coble, a dissolution case, the appellate court held allocation of a tax exemption is a separate and distinct issue from child support and is evaluated like any other asset rather than as part of a support order. Id. at [5].

However, emphasizes Lisa, the current version of Form 14 (which was in force when the trial court entered the 1999 Judgment), is based on several assumptions, one of which is Assumption 7. It reads: “The schedule of basic child support obligations assumes that the parent entitled to receive support claims the tax exemption for the children entitled to support.”

Lisa reasons that because the amounts of child support in the schedule accompanying Form 14 are based on the assumption that she — -the parent receiving support — will claim the tax exemption for Bryan, the trial court’s decision to award the tax exemption to Jack leaves her with less money to support Bryan than the Supreme Court of Missouri assumed she would have upon being awarded the presumed child support amount on line 12 of Jack’s Form 14. In Lisa’s words, “[T]he allocation of the tax dependency exemption to [Jack] is inconsistent with the presumed correct amount of child support as calculated under Form 14.” Because of that, says Lisa, the trial court could award the tax exemption for Bryan to Jack only if the court found the presumed child support amount on line 12 of Jack’s Form 14 unjust or inappropriate. As we have seen, the trial court made a contrary finding.

Lisa bases her first point on Rule 88.01(b), Missouri Rules of Civil Procedure (2000), which has remained unchanged since July 1,1998. It reads:

“There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the correct amount of child support to be awarded in any judicial ... proceeding. Unless a request is filed pursuant to Rule 73.01(a)(3), a written finding or a specific finding on the record by the court ... that the child support amount under a correctly calculated Form No. 14, after consideration of all relevant factors, is unjust or inappropriate shall be sufficient in a particular case to rebut the presumption that the amount of child support so calculated is correct.”

A child support award other than one correctly calculated under the guidelines for Form 14 is ineffective where there is no finding by the trial court that the correctly calculated amount would be unjust or inappropriate. Myers-Geiger, by Myers v. Geiger, 878 S.W.2d 925, 926[2] (Mo.App. S.D.1994). Where a trial court enters a child support award that varies from the amount correctly calculated pursuant to Form 14 and fails to make a finding that the amount correctly calculated, after consideration of all relevant factors, is unjust or inappropriate, such failure is error which requires reversal and remand. Id. at 927[4].

Here, the trial court awarded Lisa the amount of child support calculated on Jack’s Form 14 ($468 per month). Lisa makes no contention that said amount was incorrectly calculated. Obviously, a finding by the trial court that the amount of child support calculated on Jack’s Form 14 was unjust or inappropriate would be inconsistent with the $468 award. Consequently, the narrow issue this court must decide is whether the trial court, in order to award Jack the tax exemption for Bryan, was required to make a specific finding on the record that it would be unjust or inappropriate for Lisa to claim the exemption instead of Jack.

Lisa cites no statute, rule or case law authorizing this court to impose such a requirement on a trial court. Because of the ever-increasing complexity of Form 14, the proliferation of Directions, Comments, Caveats and Assumptions accompanying Form 14, and the steadily rising flow of case law addressing Form 14, this court declines to place yet another mine in this legal minefield for trial courts to dodge. Instead, this court shall review the award of the tax exemption on an abuse of discretion standard.

Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the trial court’s action, it cannot be said the court abused its discretion. Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298, 303[8] (Mo. banc 1992), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992).

Applying that standard, this court finds no error. The $893 monthly income listed for Lisa on Jack’s Form 14 was imputed to her. Lisa testified she is physically able to work but is unemployed, as she has a two-year-old child by her present husband and prefers to stay home with that child. Consequently, Lisa earns no income against which to apply the tax exemption for Bryan. Nonetheless, argues Lisa, she and her husband file joint income tax returns, hence the tax exemption for Bryan would lessen her and her husband’s joint tax burden. According to Lisa, her husband earned approximately $76,000 in 1998.

While allowing Lisa the tax exemption for Bryan would undoubtedly save Lisa and her husband some taxes, the same is true for Jack if he is allowed the exemption. Jack’s income is about half that of Lisa’s husband. Jack, like Lisa, has a new spouse. Jack’s wife was a student in a “nursing program” at the time of the evi-dentiary hearing; it is inferable she was earning no income. Additionally, she was pregnant; the date she was expected to give birth is unrevealed.

Furthermore, besides paying Lisa child support, Jack pays $47 per month ($564 per year) for health insurance for Bryan. Finally, if Bryan chooses to attend college and the trial court has to resolve a dispute between Lisa and Jack about how much of Bryan’s college expenses Jack must pay, the trial court can modify paragraph N of the Parenting Plan incorporated in the 1999 Judgment if the evidence at that time demonstrates modification is warranted.

For the reasons in the five preceding paragraphs, this court denies Lisa’s first claim of error.

Paragraph 0 of the Parenting Plan incorporated in the 1999 Judgment is reversed. In all other respects, the 1999 Judgment is affirmed. Costs of this appeal are taxed half against Lisa and half against Jack.

PREWITT and GARRISON, JJ., concur.

      .In the transcript, Respondent refers to Appellant as "Lisa”; Appellant refers to Respondent as "Jack.” For brevity and clarity, so shall this opinion. No disrespect is intended.

      . The dissolution decree had been modified in 1992. The 1992 modifications are immaterial to any issue in this appeal.

      . Paragraph O sets forth these "limitations” on Jack's duty:

        "1. ‘Cost’ shall include tuition, fees, books, dormitory costs for room and board. It does not include room and board while residing with either parent.
      2. The one-half costs [Jack] is to pay shall be one half of the actual cost to the child, i.e., if child receives a scholarship or other aid which reduces cost, the cost does not include the amount of such scholarship or aid. For this purpose, loans to the student shall not be considered a scholarship or other aid.
      3. The child must carry at least a minimum number of twelve credit hours each semester not including the summercsemes-ter.
      4. The maximum cost which [Jack] shall be responsible for in any given school year will be one half of the then cost for tuition, fees, books, and dormitory costs for room and board at the University of Missouri at Columbia, regardless of what institution the child attends.
      5.[Jack] shall not be responsible for paying one-half of the costs for more than eight semesters at a college or university.”
      The above limitations are apparently taken from Echele v. Echele, 782 S.W.2d 430, 437 (Mo.App. E.D.1989), with the objective of making paragraph O specific enough to be enforced.

      . The hearing was held March 18, 1999.

      . The trial court interviewed Biyan in chambers at the outset of the evidentiary hearing (March 18, 1999). Bryan said he was then in the ninth grade.

      . On the date of the evidentiary hearing, Bryan was residing with Lisa and her husband in Ashland, Kentucky.

      . Footnote 3, supra.

      . Bryan told the trial court his grades are "A's and B’s.” Jack testified Bryan is very intelligent.

      . The $468 per month child support awarded Lisa by paragraph L of the Parenting Plan incorporated in the 1999 Judgment abates in June, July and August.


text:
    In the Matter of the ADOPTION OF Minor Child R_ (d.o.b.5/11/92) (F) and Minor Child R_(d.o.b.4/8/94) (F). J_ S_ B_ and M_ S_ B_, Respondents, v. K_ E_ R_, Appellant.
    No. 23626.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 27, 2000.

      Carr L. Woods, Monett, for appellant.
    Cordelia F. Herrin, Melton & Herrin, Cassville, for respondents.
   CROW, Judge.

K__ E_R_(“Father”) appeals from a judgment granting the petition of M_ S_B_(“Mother”) and her husband, J.__ S_ B— (“J_”), to adopt E_ R_ E_ R_(“Child One”) and B_ L_ L_ R_ (“Child Two”). Child One and Child Two were born to Mother during her marriage to Father; he sired both children.

The following chronology is pertinent to Father’s two claims of error.

May 11,1992. Child One is born.

September 1993. Father, a member of the armed forces of the United States, is assigned to overseas duty and departs the United States.

April 8,1994. Child Two is born.

May 5,1994. Father, still on active duty overseas, is taken into custody for murder of another serviceman.

November 28, 1994. A court-martial convicts Father of murder and sentences him to fifty years’ imprisonment, forfeiture of all pay and allowances, and reduction in rank to E 1.

June 1995. Father is returned to the United States and imprisoned at the United States Disciplinary Barracks, Fort Le-venworth, Kansas.

September 1995. Circuit Court of Barry County dissolves,the marriage of Mother and Father, awarding Mother “full care and custody” of the two children.

January 20, 1996. Mother marries J_

February 10, 1998. Mother and J__ file “Petition for Step Parent Adoption” wherein they pray to adopt Child One and Child Two. Petition avers, inter alia: “[Father] has abandoned said minor children for a period in excess of one (1) year.”

October 29, 1999. Adoption petition is tried. Father, still imprisoned, is represented by court-appointed counsel. Child One and Child Two are represented by their guardian ad litem.

December 16, 1999. Trial court files judgment granting adoption. Judgment includes comprehensive findings of fact and conclusions of law.

As an introduction to the first of Father’s two claims of error, this opinion points out that adoptions in Missouri are governed by §§ 453.005-.170, RSMo 1994, as amended. Section 453.030, RSMo Cum. Supp.1997, was in force when Mother and J— filed the adoption petition. As Child One and Child Two were under the age of eighteen years, subdivision (2)(a) of subsection 3 of § 453.030 required Father’s consent to the adoption, subject to certain exceptions, one of which is set forth in the next paragraph.

Section 453.040, RSMo Cum.Supp.1997, was in force when Mother and J_filed the adoption petition. It read:

“The consent to the adoption of a child is not required of:
(7) A parent who has for a period of at least six months, for a child one year of age or older, ... immediately prior to the filing of the petition for adoption, willfully abandoned the child.... ”

In the instant case, Father did not consent to the adoption of Child One or Child Two. Consequently, Child One and Child Two could not be adopted unless, by reason of § 453.040(7), Father’s consent was not required.

In its conclusions of law, the trial court noted Father had “withheld his consent.” Addressing that subject, the trial court ruled the “controlling statute” was § 453.040, RSMo Cum.Supp. 1998. The version of § 453.040 in RSMo Cum.Supp. 1998 took effect July 1, 1998 (after the adoption petition was filed but more than a year before trial). The 1998 version of § 453.040 contains a subsection “(7)” identical to subsection “(7)” of the 1997 version, quoted above. Additionally, the 1998 version of § 453.040 contains subsection “(8).” No subsection “(8)” appeared in the 1997 version of § 453.040.

Under subsection “(8)” of § 453.040, RSMo Cum.Supp.1998, the consent to the adoption of a child is not required of a parent “whose rights to the child may be terminated for any of the grounds set forth in section 211.447, RSMo, and whose rights have been terminated after hearing and proof of such grounds as required by sections 211.442 to 211.487, RSMo.” Subsection “(8)” of § 453.040, RSMo Cum. Supp.1998, permits a petition for termination to be filed “as a count in an adoption petition.”

Section 211.447, referred to in § 453.040(8), RSMo Cum.Supp.1998, was— like § 453.040- — amended effective July 1, 1998 (after the adoption petition was filed but more than a year before trial).

Father’s first point relied on:

“The trial court erred in granting termination of [Father’s] parental rights by applying sections 453.040 RSMo 1998 and 211.447 RSMo 1998 because the ... petition for adoption was filed on February 10, 1998 and sections 453.040 and 211.447 RSMo 1998 took effect on July 1, 1998 and that the 1998 revisions enacted in 1998 resulted in substantive changes in the 1997 sections and should not have been applied retroactively.”

Father cites In re the Interest of S.L.J., 3 S.W.3d 902 (Mo.App. S.D.1999). There, a petition to terminate a parent’s rights to two children was filed February 9, 1998. Id. at 905. The case was heard August 12, 1998; a judgment terminating parental rights was filed January 12, 1999. Id.

One of the questions this court faced in S.L.J. was whether the juvenile court was correct in applying the 1997 version of § 211 .447 (which was in force when the petition was filed) or whether the juvenile court should have applied the 1998 version of § 211.447 (which took effect while the case was pending in the juvenile court).

This court held in S.L.J. that the 1998 version of § 211.447 created new grounds for terminating parental rights, hence the 1998 version could not be applied retroactively. Id. at 905-06. Accordingly, the juvenile court in S.L.J. was correct in applying the 1997 version. Id. The rationale for this court’s holding is clearly articulated in S.L.J. and need not be repeated here.

Although S.L.J. involved § 211.447, whereas the instant case involves § 453.040, the analysis is the same, i.e., subsection “(8)” in the 1998 version of § 453.040 creates a basis for granting an adoption without a parent’s consent that did not exist in the 1997 version. Consequently, the 1998 version of § 453.040 made a substantive change in the law.

Consistent with the logic of S.L.J., this court holds the trial court in the instant case erred in ruling that the 1998 version of § 453.040 was the controlling statute. As the 1997 version of § 453.040 was in force when Mother and J_filed the adoption petition February 10, 1998, the trial court should have applied the 1997 version. That is significant because, as we have seen, there was no subsection “(8)” in the 1997 version, and without subsection “(8),” § 211.447 is not brought into play.

Therefore, the only statutory provision that would allow Mother and J_to adopt Child One and Child Two without Father’s consent is § 453.040(7), RSMo Cum.Supp.1997. That brings this court to Father’s second point:

“The trial court erred in finding that [Father] had willfully abandoned the minor children for a period of six months prior to the filing of the step-parent adoption petition and that [Father’s] parental rights should be terminated because the clear and unequivocal evidence established that [Father] did not have monies or funds available to him as no funds were paid to him while incarcerated in military prison and that [Respondents] made a deliberate and calculated decision to isolate the minor children from [Father] by denying contact with [Father], by refusing phone calls from [Father], by returning mail from [Father], by using the name of [B_] as the children’s last name and not [R_], and by not traveling to Fort Leavenworth, Kansas to afford visitation between the children and [Father] which actions, by [Respondents] own testimony resulted in the children not knowing the existence of [Father.]”

In re the Adoption of K.A.S., 933 S.W.2d 942 (Mo.App. W.D.1996), involved an earlier version of § 453.040 — the version in RSMo 1986. Subsection “(5)” of that version, like subsection “(7)” of 1997 version (quoted earlier), provided that consent to an adoption was not required of a parent “who has for a period of at least six months, for a child one year of age or older, ... immediately prior to the filing of the petition for adoption, willfully abandoned the child.” K.AS. held the six-month period of willful abandonment must occur immediately prior to the filing of the adoption petition. Id. at 945. Consequently, as the adoption petition in K.A.S. was filed December 1, 1993, the consent of the parent of a two-year-old child was not required if, during the period from June 1, 1993, to December 1, 1993, the parent willfully abandoned the child. Id. at 944-45.

In the instant case, Child One and Child Two were more than one year of age when Mother and J._filed the adoption petition February 10, 1998. It is evident from KA.S. that in order for Mother and J_to adopt Child One and Child Two without Father’s consent, the evidence had to demonstrate Father willfully abandoned Child One and Child Two during the six-month period from August 10, 1997, to February 10,1998.

Accordingly, this court shall examine the evidence to see whether it is sufficient to support a finding of willful abandonment by Father during that six-month period. In that examination, this court views the evidence and reasonable inferences therefrom in the light most favorable to the trial court’s findings, In re Matter of C.W., 753 S.W.2d 933, 935[1] (Mo.App. E.D.1988), giving due regard to the trial court’s opportunity to assess credibility of the witnesses. In the Matter of I.D., 12 S.W.3d 375, 376[2] (Mo.App. S.D. 2000).

Father proclaims, and the record confirms, that neither Mother nor J_ ever took either child to visit Father after he was incarcerated at Fort Leavenworth. Additionally, Mother admitted she refused to accept “collect” telephone calls from Father during his incarceration there, except for one or “maybe two.” Furthermore, Mother did not supply Father the mailing address of her present residence, where she, J_and the two children live.

This court’s purpose in recounting Mother’s conduct in the preceding paragraph is not to imply she behaved improperly, but instead to illustrate the difficulty encountered by Father in maintaining contact with Child One and Child Two. Apparently, Father’s only possible avenue of communication" during the crucial six-month period from August 10, 1997, to February 10, 1998, would have been to get Mother’s address from another source and use a third party as a method of communication.

It is inferable from the record that Father did not pursue that possibility. His testimony included this:

“[A]fter [Mother] got married ... I stopped calling and I had to stop writing, but I did make attempts until 1997.... I kept writing my kids ... even after she was married, but they had moved and the letters continued to come back to me, so I had to stop, because I had no contact, didn’t know where she was, and I tried to send letters to her dad to her old address and they were sent back[.]”

Mother acknowledged it was “possible” she returned cards and letters from Father. However, she did not indicate any arrived during the six-month period immediately prior to the filing of the adoption petition.

The trial court found, inter alia: “While at first [Father] may have written letters while at Leavenworth, that has stopped.”

The trial court recognized Father has had no income since his 1994 court-martial conviction, hence Father has had no money to contribute toward the children’s support. However, there was evidence that financial aid for the children might have been available from the military despite the forfeiture of all pay and allowances in Father’s sentence.

Father testified he could have kept a child support allowance of $389 per month, but Mother refused it, saying she “didn’t want anything to do with me anymore.” According to Father: “She would have to have filled out the form and I would have to have signed them, but it could have been arranged.” Asked whether the allowance was still available, Father replied, “That is not possible anymore, sir.”

Mother’s testimony contradicted Father’s. Her testimony:

“Q. At the time of his court-martial did he ever indicate to you that you would be eligible to receive funds from the military even after he was court-martialed?
A. No.
Q. Did he ever indicate to you any sums of money such as $389 a month that you would be available to have?
A. No.
Q. Did he tell you about any forms you could fill out to get that money?
A. No.”

The trial court’s findings included this: “The Court does not find credible [Father’s] testimony that benefits were available to [Mother] but that she faded to request such benefits at his court-martial.”

The evidence, viewed in the fight most favorable to the above finding, is sufficient to support it. Accordingly, this court accepts the premise that Father did not tell Mother about any opportunity to obtain a child support allowance from the military. While that was long before the six-month period immediately prior to the fifing of the adoption petition, it provides some insight into Father’s attitude concerning the children in 1994.

There was evidence that long before Father’s arrest for murder, he displayed indifference and irresponsibility toward Child One (Child Two was born only a month before the arrest). The trial court made findings on numerous instances of such conduct; those findings need not be set forth here.

The trial court was unimpressed by Father’s letter-writing after his incarceration at Fort Leavenworth. The trial court found: “[Father’s] depth of interest and expressed commitment to both his minor children who are the subject of this proceeding ... has been engendered by his incarceration and the time for letter-writing and reflection that it necessarily entails.”

On the ultimate issue of abandonment, the trial court concluded: “[T]he Court finds ... [Father] has willfully abandoned the minor children for a period in excess of six months prior to the fifing of the stepparent adoption petition.” That finding, if sustainable on appeal, allows Mother and J_ to adopt Child One and Child Two without Father’s consent. § 453.040(7), RSMo Cum.Supp.1997.

The standard of appellate review in adoption cases is set forth in I.D., supra, 12 S.W.3d at 376[1]. This court must affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Each adoption must be judged on its own unique set of facts. In the Matter of K.L.C., 9 S.W.3d 768, 772[3] (Mo.App. S.D. 2000). Applying those precepts, this court holds the trial court did not err in finding Father willfully abandoned Child One and Child Two for the six-month period immediately prior to the fifing of the adoption petition.

Intent to abandon is generally an inferred fact, determined by conduct within the statutory period, combined with relevant conduct both before and after such period. Id. at 773[9]. While Father’s incarceration indisputably limited his ability to maintain contact with the children, confinement does not preclude a finding of abandonment.

In In the Interest of R.K., 982 S.W.2d 803 (Mo.App. W.D.1998), a finding that an imprisoned father abandoned his son was upheld. Id. at 807. The opinion explained: “This volitional criminal activity has resulted in the separation from and lack of support of [the son] by [the father]. While incarcerated, [the father] has had only a token amount of ... communication with [the son].” Id. at [12].

Viewed favorably to the judgment here, the evidence supports a similar conclusion in regard to the six-month period immediately prior to the filing of the adoption petition. This court therefore rejects Father’s second point.

In granting the adoption, the trial court found it would be in the best interests of the children. Father assigns no error regarding that finding.

Judgment affirmed.

BARNEY, C.J., and GARRISON, J., concur.

      . J_ testified he and Mother began living together in November 1994 in Barry County. The household consisted of J_, Mother, Child One and Child Two.

      . In construing the "immediately prior” requirement of § 453.040(5), RSMo 1986, K.A.S. relied on In re Adoption of W.B.L., 647 S.W.2d 531 (Mo. banc 1983). K.A.S., 933 S.W.2d at 945.

      . The parties’ briefs recite evidence about the conduct of Father, Mother and J_long before August 10, 1997. Father’s conduct before that date is irrelevant except as it might shed light on whether his intent between August 10, 1997, and February 10, 1998, was consistent with willful abandonment.

      . This court is mindful that when evidence is presented by deposition, an appellate court does not defer to a trial court’s assessment of credibility. Howard v. Missouri State Board of Education, 913 S.W.2d 887, 888[2] (Mo.App. S.D. 1995). In the instant case, the evidence included deposition testimony by Father and one of his fellow inmates.

      . Mother testified she did keep Father informed of her mailing address until she, J_ and the children moved to the present residence. This court searched the record for the date of that move but failed to find it.

      .Father testified he sent Christmas presents to the children through the Salvation Army. His testimony is unclear about which years he allegedly did this and whether he did this at Christmas 1997 (the Christmas during the six-month period immediately preceding the filing of the adoption petition). Mother testified she received no gifts from Father or the Salvation Army, Red Cross or United Way after 1995. The trial court found the children received no gifts from Father or his family after 1994.


author: BIRCH, J.,

text:
    STATE of Tennessee v. James Thomas JEFFERSON.
    Supreme Court of Tennessee, at Nashville.
    Aug. 25, 2000.

      Jeffrey A. DeVasher, Nashville, TN, for appellant, James Thomas Jefferson.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Victor S. Johnson, III, District Attorney, and Roger Moore, Assistant District Attorney General, for appellee, State of Tennessee.
   OPINION

BIRCH, J.,

delivered the opinion of the court, in which

ANDERSON, C. J., DROWOTA, HOLDER, and BARKER, JJ., joined.

This case is before us upon a jury’s resentencing of the defendant, James Thomas Jefferson, on his conviction for premeditated first degree murder. In the original appeal, the Court of Criminal Appeals affirmed the conviction, vacated the sentence, and remanded the matter to the trial court for resentencing. On remand, the defendant requested a new jury trial on the merits in addition to the already-ordered resentencing. The trial court denied the request for a new trial. After a new hearing, the jury fixed a sentence of life imprisonment. The defendant appealed of right, challenging the trial court’s overruling of his motion for a new trial on the merits. Relying on the “law of the case” doctrine, the Court of Criminal Appeals affirmed the trial court’s judgment. We granted the defendant’s application for permission to appeal and now hold that the Court of Criminal Appeals properly determined that the law of the case doctrine barred the trial court from granting Jefferson’s motion for a new trial. The Court of Appeals is, therefore, affirmed.

This case is before the Court upon the jury’s resentencing of the defendant to life imprisonment for first degree premeditated murder. The defendant contends that the trial court erred in overruling his motion for a new trial on guilt or innocence before considering resentencing. For the reasons stated below, we conclude that the trial court did not err in overruling the defendant’s motion.

We begin with a summary of the proceedings. The homicide that led to this prosecution occurred June 15, 1968, in Nashville. The defendant was first tried in 1969; this ended in a mistrial. In the second trial, held in January 1971, the defendant was convicted of first degree murder and was sentenced to ninety-nine years in the penitentiary. After lengthy post-trial litigation in both the state and federal courts, the United States District Court for the Middle District of Tennessee granted habeas corpus relief and vacated the conviction. The defendant was subsequently re-indicted on July 24,1992.

Trial began in August 1993, and at the conclusion of the State’s proof, the trial court dismissed the felony murder (robbery) count on the ground that it was duplicitous of the felony murder (larceny) count. At the appropriate point, the trial court instructed the jury, stating the elements for each of the four first degree murder counts (three felony murder counts and one premeditated murder count). Additionally, the trial court instructed the jury on the lesser-included offense of second degree murder. The trial court informed the jury that if it found the defendant- guilty of first degree murder, sentencing was to be accomplished “by setting his sentence at life or a specific term of years of from twenty years to life.” The jury returned a verdict finding the defendant guilty of premeditated first degree murder and sentenced him to forty years imprisonment.

Because the sentencing statute had been declared unconstitutional, the only legal sentence on a conviction for first degree murder was life imprisonment. Miller v. State, 584 S.W.2d 758, 765 (Tenn.1979). Accordingly, on August 20, 1993, the day following the trial, the State moved to correct the judgment. In its motion, the State contended that the only sentence possible for first degree murder was a life sentence, so that the forty-year sentence imposed by the jury was, therefore, invalid. The State asked the trial court to correct the judgment by entering a sentence of life imprisonment. In response, the defendant moved for an order compelling the State to submit a sentencing judgment form reciting the forty-year sentence imposed by the jury. The trial court granted the State’s motion and modified the sentence by imposing a term of life imprisonment.

The defendant appealed the conviction and sentence. The Court of Criminal Appeals rejected the challenges to the conviction but found the original sentence of forty years to be illegal and therefore void. It recognized that once a jury is discharged its verdict cannot be amended or corrected by the trial court as to the grade of the offense or the sentence imposed. The Court of Criminal Appeals concluded that the trial court did not have the authority to change the jury’s verdict from forty years to life imprisonment.

The Court of Criminal Appeals’s opinion specifically held as follows:

Since the jury found the appellant guilty of premeditated murder and the evidence contained in the record supports the verdict, the verdict of the jury finding the appellant guilty of premeditated murder is affirmed. However, this case must be remanded to the trial court for a new sentencing hearing.

State v. Jefferson, 938 S.W.2d 1, 3-5 (Tenn.Crim.App.1996). The defendant’s application for permission to appeal to this Court was denied.

On remand to the trial court, the defendant filed a motion to impanel a jury for the purpose of determining his guilt or innocence. Following a hearing, the trial court denied this motion. On July 14, 1997, a jury was impaneled for the sentencing hearing. The jury sentenced the defendant to life imprisonment.

On appeal from this sentencing hearing, the Court of Criminal Appeals affirmed the trial court’s denial of a jury trial as to the defendant’s guilt or innocence. Relying upon the “law of the case” doctrine, the Court of Criminal Appeals held that the trial court was bound by the intermediate court’s previous decision affirming the conviction and remanding the case solely for resentencing.

In Memphis Publg. Co. v. Tennessee Petroleum Underground Storage Tank BcL, 975 S.W.2d 303 (Tenn.1998), we addressed the “law of the case” doctrine. The following principles quoted from Memphis Publg. Co. govern the outcome in the pending case:

The phrase “law of the case” refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case. In other words, under the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. The doctrine applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication. The doctrine does not apply to dicta.
The law of the case doctrine is not a constitutional mandate nor a limitation on the power of a court. Rather, it is a longstanding discretionary rule of judicial practice which is based on the common sense recognition that issues previously litigated and decided by a court of competent jurisdiction ordinarily need not be revisited. This rule promotes the finality and efficiency of the judicial process, avoids indefinite relitigation of the same issue, fosters consistent results in the same litigation, and assures the obedience of lower courts to the decisions of appellate courts.
Therefore, when an initial appeal results in a remand to the trial court, the decision of the appellate court establishes the law of the case which generally must be followed upon remand by the trial court, and by an appellate court if a second appeal is taken from the judgment of the trial court entered after remand. There are limited circumstances which may justify reconsideration of an issue which was [an] issue decided in a prior appeal: (1) the evidence offered at a trial or hearing after remand was substantially different from the evidence in the initial proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the controlling law which has occurred between the first and second appeal.

Memphis Publg. Co., 975 S.W.2d at 306 (internal citations omitted).

Jefferson’s case falls under neither the first nor the third exception to the law of the case doctrine. The only possible exception in which Jefferson’s case could fall is the second exception; that is, whether “the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand.” Id. (emphasis added). This exception requires a two part showing. First, a defendant must show that the prior decision was clearly erroneous. If the defendant succeeds, he or she must then prove that the clearly erroneous decision “would result in a manifest injustice if allowed to stand.” Thus, to prevail under this exception Jefferson must show that the Court of Criminal Appeals’s ruling was both clearly erroneous and would lead to manifest injustice. We must first decide, therefore, if the Court of Criminal Appeals’s decision was “clearly erroneous.” In answering this question we turn to the precedent of this Court. We find the issue resolved by our decision in State v. Cook, 816 S.W.2d 322 (Tenn.1991).

In Cook, the trial court, pursuant to Tenn.Code Ann. § 40-35-201(b), now repealed, instructed the jury as to the defendant’s possible sentences as a Range I offender when the court should have instructed the jury as to the defendant’s possible sentences as a Range II offender. We held that such an error was prejudicial, and we remanded the cause to the trial court for a new trial.

In this case, the trial court erroneously instructed the jury under a statute already found to be unconstitutional. Such a situation is analogous to Cook. Indeed, the Court of Criminal Appeals should have relied on Cook and remanded the case for a new trial. We find, therefore, that the Court of Criminal Appeals’s decision was clearly erroneous because the court failed to follow the precedent of this Court.

Having determined that the Court of Criminal Appeals’s decision was clearly erroneous, we must next determine if the decision would result in manifest injustice if allowed to stand. Although Jefferson does not specifically address this issue, he contends that if the jury had been given the proper instruction as to the sentence for first degree murder, it is possible that the jury would have convicted him of the lesser included offense of second degree murder.

We find Jefferson’s contention without merit, for at no time during the 1993 trial did Jefferson suggest to the jury that the killing could have constituted second degree murder. The trial judge, nonetheless, instructed the jury as to the elements of second degree murder, and we conclude that the jury had, indeed, the opportunity to convict Jefferson of second degree murder.

Moreover, after reviewing the record, we find that the evidence adduced at trial overwhelmingly supports Jefferson’s conviction for first degree murder. Indeed, in the long history of this case, Jefferson has been twice convicted by a jury for first degree murder. Accordingly, we find that no rational jury could have found Jefferson guilty of second degree murder.

For these reasons, we find that the Court of Criminal Appeals’s decision did not result in manifest injustice. This case, therefore, does not fall under the. second exception to the law of the case doctrine, and the Court of Criminal Appeals properly affirmed the trial court’s denial of Jefferson’s motion for a new trial.

For the reasons articulated above, the Court of Criminal Appeals properly affirmed the trial court’s denial of Jefferson’s motion for a new trial. The Court of Criminal Appeals is, therefore, affirmed.

The costs of this appeal are taxed to the defendant, James Thomas Jefferson, for which execution may issue.

      . As previously noted, Jefferson was tried and convicted of first degree murder in 1971. His conviction was subsequently vacated by the United States District Court for the Middle District of Tennessee.


author: W. MICHAEL MALOAN, Sp. J.,

text:
    STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, v. Natalie HURLEY.
    Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, at Jackson.
    Aug. 31, 2000.

      James E. Conley, Jr., Memphis, Tennessee, for the appellant, State Automobile Mutual Insurance Company.
    R. Sadler Bailey, Memphis, Tennessee, for the appellee, Natalie A. Hurley.
   MEMORANDUM OPINION

W. MICHAEL MALOAN, Sp. J.,

delivered the opinion of the court, in which

JANICE M. HOLDER, J., and HENRY D. BELL, Sp. J., joined.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, State Automobile Mutual Insurance Company (State Auto), appeals the judgment of the Circuit Court of Shelby County which ordered State Auto to pay to the defendant, Natalie Hurley (Hurley), $28,873.91 being the total of her medical bills. For the reasons stated in the opinion, we find the trial court erred and reverse the judgment of the trial court.

The relevant facts are not in dispute. State Auto filed suit to determine to what, if any, workers’ compensation benefits Hurley would be entitled as a result of a July 24, 1998, automobile accident. State Auto denied Hurley’s claim and did not pay any benefits. Hurley filed a counterclaim for benefits. At trial, the parties stipulated that Hurley’s medical bills of $28,873.91 were reasonable and necessary. Hurley individually paid a portion of her medical bills. The balance of $26,141.19 was submitted by her health care providers to her health insurance carrier, which paid $8,174.88 in full settlement of the total billed. On May 10, 1999, the trial court found Hurley’s injury to be compensable and awarded permanent partial disability benefits of forty percent (40%) to the right arm. The trial court granted Hurley’s post-trial motion and ordered State Auto to pay to Hurley $28,873.91, the total of her medical bills. State Auto appeals only that part of the trial court’s order requiring it to pay Hurley the total of her medical bills and allowing Hurley to retain the difference between the amount the health care providers billed and the amount they accepted from her health insurance carrier. Hurley filed a motion for this panel to .find this appeal to be frivolous and to award her damages.

ANALYSIS

The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50 — 6—225(e)(2), Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn.1989). Questions of law are reviewed de novo with no presumption of correctness. Cunningham v. Shelton Sec. Services, Inc., 958 S.W.2d 338, 340 (Tenn.1997). The sole issue presented for review is whether the trial court erred in ordering the employer to pay medical expenses directly to the employee rather than the health care providers.

On appeal, State Auto relies on Tenn. Code Ann. § 50-6-204(a)(l) to support its argument that the trial court lacked authority to order it to pay medical expenses to Hurley. Hurley submits the following arguments to support the trial court’s order: 1) that State Auto is liable for the entire amount of Hurley’s medical bills because State Auto stipulated Hurley’s medical expenses were reasonable and necessary; ; 2) allowing State Auto to pay only the discounted medical bills would violate Tenn.Code Ann. § 50-6-114; 3) State Auto’s position is against public policy; and 4) the collateral source rule should be applied in workers’ compensation cases.

Effect of Stipulation of Medical Bills As Reasonable and Necessary

Ordinarily, in a workers’ compensation case in which compensability is accepted, the employer pays the injured employee’s medical bills directly to the approved health care provider and the employee is reimbursed for any out-of-pocket medical expenses he or she may have paid. When a claim is denied, the employee may obtain medical care at his or her own expense through a group or individual health care plan or from a government health care. If the claim is found to be compensable, the employer becomes liable for the employee’s medical expenses. In the present case, Hurley’s health insurance carrier paid $8,174.80 of a total of $26,141.19 in medical bills submitted for her care. The question is who has the legal obligation to reimburse Hurley’s health insurance carrier and to receive the corresponding benefit of the discounted medical bills?

State Auto stipulated at trial that Hurley’s medical expenses were reasonable and necessary; that State Auto is legally responsible for and will pay all medical expenses; and that State Auto will reimburse Hurley’s health insurance carrier and Hurley for any medical expenses she has paid related to her injury. Hurley insists Tenn.Code Ann. § 50-6-204(a)(l) obligates State Auto to pay all her reasonable and necessary medical expenses and, since State Auto stipulated her medical expenses of $28,873.91 were reasonable and necessary, it is liable for that amount. Hurley further states that State Auto had the opportunity to provide medical services and refused to do so, and, therefore, the total medical expenses should be paid to her to be disbursed, less her attorney’s fees.

In ordering State Auto to pay the total medical expenses to Hurley, the trial court relied on the following language in Bazner v. American States Insurance Co., 820 S.W.2d 742, 747 (Tenn.1991):

We first observe that defendant is not entitled to a set-off against its liability for medical expenses. These expenses are an obligation on its part according to the statute. Bazner, 820 S.W.2d, at 747.

The panel agrees this is a correct statement of the law. This statement, however, has no application to the present case. Bazner disallowed to the employer a set-off for money received by the employee in a companion federal tort suit. Nothing in Bazner required the employer to pay medical expenses directly to the employee. Thus, reliance on Bazner is misplaced.

We find this issue is controlled by the language of TenmCode Ann. § 50-6-204(a)(1) and by the Tennessee Supreme Court decision of Staggs v. National Health Corp., 924 S.W.2d 79, 81 (Tenn.1996). Tenn.Code Ann. § 50-6-204(a)(l) provides in part:

The employer or employer’s agent shall furnish free of charge to the employee such medical and surgical treatment, medicine, medical and surgical supplies, ... made reasonably necessary by accident, ... as may be reasonably required; ....

In Staggs, 924 S.W.2d at 81, the Supreme Court held as follows:

An employee is not entitled to personally receive payment for medical expenses unless he or she personally paid the medical expenses and is due reimbursement. Instead, employers must pay the providers of medical care directly for incurred medical expense.

We, therefore, find Tenn.Code Ann. § 50-6-204(a)(l) requires the employer to furnish free of charge to the employee reasonable and necessary medical treatment. The statute does not require the employer to pay the cost of medical treatment to the employee, unless the employee has personally incurred medical expenses. To require State Auto to pay the total medical expenses to Hurley to reimburse health care providers and to allow Hurley to retain the difference between the amount billed and that accepted by the provider is contrary to the statute and Staggs.

Payment of Discounted Medical Bill as Violation of Tenn.Code Ann. § 50-6-114

Hurley submits that allowing State Auto to be responsible only for payment of the discounted medical bills would allow State Auto to avoid its legal obligations under Tenn.Code Ann. § 50-6-204(a)(l) and would violate Tenn.Code Ann. § 50-6-114, which states, in part:

50-6-114. Supremacy of chapter — Set-offs for payments by disability plan.—

(a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this chapter except as herein provided.

Hurley’s interpretation of Tenn. Code Ann. § 50-6-114 would require State Auto to pay the total of her medical expenses without the benefit of any discount. State Auto cites TenmCode Ann. § 50-6-122(a)(2), which encourages employers to control medical costs by entering into contracts for reduced medical costs with health management organizations (HMO) and preferred provider organizations (PPO). To accept Hurley’s argument would give the employee and not the employer the benefit of reduced medical expenses, a result clearly in conflict with Tenn.Code Ann. § 50-6-122(a)(2). As we have already stated, TenmCode Ann. § 50-6-204(a)(l) requires State Auto to provide medical care free of charge, not to pay to Hurley the total costs of her medical care. We decline to hold that State Auto is attempting to avoid its obligations under Tenn.Code.Ann. § 50-6-204(a)(l) to provide medical treatment to Hurley. This argument is without merit.

Public Policy

Hurley submits that allowing State Auto to pay only the cost of discounted medical care provided by her health insurance carrier would create a judicially authorized incentive for employers to deny claims in anticipation of receiving the benefit of a reduced charge from a health care provider. Hurley points out that either she or State Auto will receive the benefit of the discounted medical bills and that it should be she rather than State Auto, who denied a compensable claim. Were we to agree with Hurley’s position, the result would be, in effect, to create a bad faith penalty. This panel notes the legislature has provided a bad faith penalty in Tenn. Code Ann. § 50-6-128 for wrongfully denying medical treatment. This panel is not at liberty to judicially create another bad faith penalty. This argument is without merit.

Collateral Source Rule

The trial court and Hurley suggest this case is analogous to the collateral source rule in tort cases. That rule permits a plaintiff to recover the total of medical expenses as an element of damages against the defendant without consideration of whether the medical expenses were paid by insurance or not. Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn.Ct.App.1994). We agree the trial court’s order requiring State Auto to pay medical expenses to Hurley is analogous to the collateral source rule, but we cannot find any authority in this state for the adoption of the collateral source rule in workers’ compensation cases. To do so would overlook the inherent differences between a tort claim for personal injury and a claim for workers’ compensation benefits. We believe the collateral source rule would conflict with TenmCode Ann. § 50 — 6—204(a)(1) and would require legislative action to implement. “In the event the defendant believes an inequity exists in the current statutory scheme, it is a matter for the legislature to consider and not this panel.” Advo, Inc. v. Phillips, 989 S.W.2d 693, 696 (Tenn.1998).

CONCLUSION

Tennessee’s workers’ compensation law provides to injured workers medical, disability, and death benefits, each of which is defined by statute. If the trial court were authorized to order the employer to pay medical expenses directly to the employee and to allow the employee to retain the difference between the amount billed and the amount accepted by the health care provider, the result would provide an additional benefit to the employee not authorized by statute.

This panel is mindful that Tenn.Code Ann. § 50-6-116 directs the law “be given an equitable construction by the courts” and of the numerous decisions that direct the courts to construe the workers’ compensation law liberally and to resolve any doubt in favor of the employee. Ingram v. State Industries, Inc., 943 S.W.2d 381 (Tenn.Sp.Workers Comp.1995). However, we find to affirm the trial court’s order would be to ignore Tenn.Code Ann. § 50-6—204(a)(1) and Staggs v. National Health Corp., 924 S.W.2d 79 (Tenn.1996).

The judgment of the trial court which ordered the plaintiff, State Auto, to pay medical expenses directly to the defendant, Natalie Hurley, is reversed. The panel overrules defendant’s motion for frivolous appeal. The defendant, Natalie Hurley, is taxed with the costs of this appeal.