author: ROBERT G. DOWD, JR., Judge.

text:
    Matthew W. MILLER, Appellant, v. REHNQUIST DESIGN & BUILD, INC., and Division of Employment Security, Respondents.
    No. ED 93897.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 25, 2010.

      Gerald W. Linnenbringer, Sunset Hills, MO, for Appellant.
    Rehnquist Design & Build, Inc., St. Louis, MO, pro se.
    Larry R. Ruhmann, Jefferson City, for respondents.
   ROBERT G. DOWD, JR., Judge.

Matthew W. Miller (“Claimant”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) affirming the decision of the Appeals Tribunal dismissing Claimant’s appeal for failure to appear at the hearing. Claimant asserts the Commission erred in dismissing Claimant’s appeal because Claimant provided evidence of good cause for failing to appear. We reverse and remand.

Claimant worked for Rehnquist Design and Build, Inc. (“Employer”) for approximately eight years. Following a work disagreement, Claimant filed for unemployment benefits with the Division of Employment Security alleging he was discharged by Employer. Employer filed a protest of the claim asserting Claimant voluntary left his work. A deputy reviewed his claim and found that Claimant was disqualified from receiving unemployment benefits because he voluntarily left his work with Employer without good cause attributable to the work or the employer. Claimant appealed to the Appeals Tribunal.

The Appeals Tribunal mailed the parties the Notice of Telephone Hearing informing them that the telephone hearing was scheduled for June 10, 2009 at 8:30 a.m. The notice provided in bold letters at the top of the form: “Claimant, we will use the phone number below unless you call 877-881-9162.” (Bold in original.) There was no telephone number for Claimant and the notice provided, “Claimant Phone No. NONE ON FILE.” The notice provided instructions for providing a telephone number and advised that if no phone number was provided, the case may be dismissed.

On June 10, 2009, the referee of the Appeals Tribunal noted that “no claimant telephone number as of 8:35 AM” and that “appeal dismissed employer witness notified.” The Appeals Tribunal issued an order dismissing Claimant’s appeal because “[Claimant] did not participate in the hearing to pursue the appeal.” Claimant filed a request for reconsideration. Claimant’s request was granted and a hearing was scheduled “to consider whether the claimant had good cause for failing to participate in the prior setting.”

At the hearing, Claimant presented undisputed evidence that a day or two prior to the hearing on his appeal, he called the local Appeals Tribunal office and spoke to a woman regarding the hearing procedure. Claimant testified that the woman he spoke with ensured him that the Appeals Tribunal “had all [of Claimant’s] evidence and that they would call [Claimant].” Claimant said he assumed the Appeals Tribunal had his telephone number because his telephone number was listed in the packet sent to him by the Division of Employment Security (“the Division”). Thereafter, the Appeals Tribunal issued an order stating Claimant “has failed to show good cause for failing to participate in the hearing scheduled on June 10, 2009” and reinstated the Appeals Tribunal’s dismissal of Claimant’s appeal. The Appeals Tribunal found Claimant’s assumption that the Appeals Tribunal had his telephone number was not reasonable where the notice indicated there was no telephone number for Claimant on file and Claimant could have called the designated number to provide a telephone number. During the proceedings, a representative of Employer indicated that Employer would no longer be contesting Claimant’s claim for unemployment benefits. Claimant subsequently appealed to the Commission. The Commission affirmed and adopted the decision of the Appeals Tribunal dismissing his appeal for failure to appear at the hearing. This appeal follows.

In his sole point, Claimant contends the Commission erred in dismissing Claimant’s appeal because Claimant provided evidence of good cause for failing to appear. We agree.

We may modify, reverse, remand, or set aside the Commission’s decision only when: (1) the Commission acted without or in excess of its powers; (2) the decision was procured fraudulently; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence to support the award. Section 288.210, RSMo 2000; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We review the denial of a motion to reconsider and set aside a dismissal for failure to appear at the hearing for an abuse of discretion. Weirich v. Division of Employment See., 301 S.W.3d 571, 574 (Mo.App. W.D.2009)(citing Robinson v. Division of Employment Sec., 274 S.W.3d 505, 508 (Mo.App. W.D.2008)).

A claimant appealing a deputy’s ruling disqualifying the claimant for unemployment benefits must appear at his hearing “at the scheduled time or location” or the appeal will be dismissed. 8 CSR 10-5.040(2)(A). To “appear” at a telephone hearing, a claimant must “[p]rovide telephone numbers as instructed on the notice of hearing within the designated time frame and answer at the time of the hearing.” 8 CSR 10-5.010(2)(B)2. Claimant did not appear for his telephone hearing because he was never contacted by the Appeals Tribunal, and his appeal was therefore dismissed.

A dismissal can be set aside, however, when the claimant “had good cause for failing to appear for the prior setting.” 8 CSR 10-5.040(2)(B). Good cause is defined as “those circumstances in which the party acted in good faith and reasonably under all the circumstances.” 8 CSR. 10-5.010(2)(C).

Here, Claimant presented undisputed evidence establishing that he acted in good faith. Claimant believed the Appeals Tribunal had his telephone number. While this belief may have been incorrect, Claimant showed it was a good faith belief. Claimant’s good faith belief that the Appeals Tribunal had his telephone number was reasonable under the circumstances. First, Claimant contacted the local Appeals Tribunal office and talked with a woman there who assured him that the Appeals Tribunal “had all [of Claimant’s] evidence and that they would call [Claimant].” This evidence was not disputed. It was reasonable for Claimant to rely on the assertions made by an employee of the Appeals Tribunal. Second, Claimant’s telephone number was listed in the packet sent to him by the Division. Because both the notice of the telephone hearing and the accompanying packet were mailed to Claimant by the Division, it was reasonable for Claimant to believe that the Appeals Tribunal had his telephone number on record. Thus, Claimant established he had good cause for failing to appear at the hearing because he had a good faith belief that the Appeals Tribunal had his telephone number on record and that belief was reasonable under all the circumstances.

The Division relies on Robinson v. Division of Employment Sec., 274 S.W.3d 505 (Mo.App. W.D.2008), and Jenkins v. Manpower on Site at Proctor and Gamble, 106 S.W.3d 620 (Mo.App. W.D.2003), to support its position that Claimant did not have good cause for failing to appear at the hearing. These cases can be distinguished. In Robinson, the claimant’s home telephone number was listed on the notice, but when the Appeals Tribunal called the telephone number, the claimant was not there. Robinson, 274 S.W.3d at 507. Following the Appeals Tribunals determination that the claimant voluntarily left his employment, the claimant submitted a letter in which he stated he did not appear at the hearing because he was on his way to a job interview and had left a cell phone number where he could be reached with someone at his home. Id. The letter was treated as an application for review with the Commission and the Commission subsequently affirmed the Appeals Tribunal’s determination. Id. On appeal, the court noted it was the claimant’s obligation to inform the Appeals Tribunal of a telephone number at which he could be reached, and he failed to do so. Id. at 509.

In Jenkins, the claimant appealed the deputy’s determination that the claimant was discharged for insubordination. Jenkins, 106 S.W.3d at 622. The claimant received the notice of the hearing and directions to provide the Appeals Tribunal with a telephone number where he could be reached. Id. at 622. Claimant took no actions prior to the hearing to provide the Appeals Tribunal with a telephone number, and therefore, the Appeals Tribunal dismissed the claimant’s appeal. Id. at 622-23. On appeal of the Commission’s decision affirming the Appeals Tribunal’s dismissal, the court found the Claimant’s failure to read the notice properly and provide a telephone number was not good cause for him to miss the telephone hearing. Id. at 625.

These cases are distinguishable from the present case. Here, unlike in Robinson and Jenkins, Claimant made affirmative efforts before the hearing to make sure the Appeals Tribunal had his telephone number. Although Claimant did not call the number listed on the notice, he did contact the local Appeals Tribunal office and spoke to a woman there who assured him that they had everything they needed and would call him. Further, unlike in Robinson and Jenkins, Claimant’s belief that the Appeals Tribunal had his telephone number was based on information in the packet he received from the Division that contained his correct telephone number. We find the Division’s reliance on Robinson and Jenkins to be misplaced.

The Division also relies on Brawley & Flowers, Inc. v. Gunter, 934 S.W.2d 557 (Mo.App. S.D.1996). In Brawley, the employer failed to provide a telephone number to the Appeals Tribunal and failed to participate in the appeal of the deputy’s determination that the claimant left work voluntarily without good cause attributable to the employer. Brawley, 934 S.W.2d at 559. The Appeals Tribunal found the claimant was discharged and did not leave work voluntarily. Id. The employer applied for review by the Commission and the Commission affirmed the Appeals Tribunal based on the previously submitted evidence and did not allow the employer to reopen the record so the employer could present evidence. Id. The employer argued it was not contacted at the time of the telephone hearing and thus was not given an opportunity to participate in the hearing. Id. In affirming the decision of the Commission and finding the employer was not denied a reasonable opportunity for a fair hearing, the court noted the employer was provided the notice indicating the time of the hearing and directions to provide a telephone number, and the employer failed to follow clearly stated directions that would have enabled it to present evidence and otherwise defend against the claim. Id.

The court further observed that the employer did not seek to set aside the Appeals Tribunal decision but rather appealed the decision to the Commission. Id. at 561. Had the employer’s request to set aside been granted, the appeal would have been reset for a hearing to determine whether the employer had good cause for failing to appear at the first hearing. Id. (citing 8 CSR 10-5.040(2)(B),(C), and (E)). The court noted that in its application for review with the Commission, the employer alleged a duly authorized representative notified the Appeals Tribunal that he wanted to participate in the telephone hearing and left his telephone number, and that he was available by telephone on the date of the hearing. Id. The court found the employer’s allegations were not supported by the record and were pleadings that were not self-proving. Id. On motion for rehearing, the court remarked that the employer’s pleadings did not allege it responded to the notice in the manner directed. Id. at 562.

The present case is also distinguishable from Brawley. Here, Claimant did properly file a request to set aside the Appeals Tribunal’s decision and was granted a hearing to determine whether he had good cause for failing to appear at the first hearing. At the hearing, Claimant presented evidence that was undisputed showing he had good cause for failing to appear. Unlike Brawley, Claimant did not merely file an application for review with the Commission and only provide allegations in pleadings. Thus, the Division reliance on Brawley is also misplaced.

The Commission abused its discretion in affirming the dismissal of Claimant’s appeal because he established good cause for failing to appear at the hearing. Claimant’s point is granted.

The Commission’s decision is reversed and the case is remanded for further proceedings.

SHERRI B. SULLIVAN, P.J., and PATRICIA L. COHEN, J„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Valerie HASENBACK, Employee/Appellant, v. AA & L ENTERPRISES, INC., d/b/a Bahr’s Discount Foods, Employer/Respondent, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Respondent/Additional Party.
    No. ED 93750.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 25, 2010.
    Kurt C. Hoener, St. Louis, MO, for Appellant.
    Kenneth D. Alexander, Mary J. Som-mers-Getz, Attorney General’s Office, St. Louis, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Valerie J. Hasenbeck appeals from decision of the Labor and Industrial Relations Commission upholding the decision of the administrative law judge awarding Hasen-beck permanent partial disability based on her neck and left shoulder injury from the December 2, 2004 incident and denying permanent total disability, past medical expenses, or future medical expenses referable to the December 2, 2004 incident.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Robert J. HEMP, Appellant, v. TREASURER OF MISSOURI, As Custodian of the. Second Injury Fund, Respondent.
    No. ED 93526.
    Missouri Court of Appeals, Eastern District, Division One.
    May 25, 2010.
    Mark E. Moreland, St. Louis, MO, for appellant.
    Chris Koster, Neel Morkerjee, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Robert Hemp appeals the award of the Labor and Industrial Relations Commission finding the Second Injury Fund (“SIF”) not liable for permanent total disability benefits on his claims.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Edward J. ALEXANDER, Appellant, v. KJ GODDARD, INC., Jeff Goddard and Kellie Goddard, Respondents.
    No. ED 93483.
    Missouri Court of Appeals, Eastern District, Division One.
    May 25, 2010.
    Steven Koslovsky, Maryland Heights, MO, for appellant.
    Ronald Borgmann, St. Louis, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Edward J. Alexander appeals from the trial court’s grant of K.J. Goddard, Inc., Jeff Goddard and Kellie Goddard’s motion to dismiss his two count petition alleging breach of a promissory note and money had and received.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Roberto DUNN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93088.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 25, 2010.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Richard A. Starnes, Jefferson City, MO, for Respondent.

      Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Roberto Dunn (hereinafter, “Movant”) appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Movant raises four points on appeal alleging the motion court clearly erred in declining to find his defense attorneys ineffective. First, Movant contends his defense attorneys were ineffective for failing to request a mistrial after several jurors allegedly discussed Movant’s case amongst themselves and formed opinions before deliberations. Second, Movant asserts his defense attorneys were ineffective for failing to offer additional evidence of alleged juror misconduct in support of his motion for a new trial. Finally, in his final two points, Movant alleges his defense attorneys were ineffective for failing to object to two statements the prosecutor made during the State’s closing argument.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. We affirm the motion court’s denial of Movant’s Rule 29.15 motion pursuant to Rule 84.16(b).


text:
    ST. CHARLES COUNTY, Missouri, Appellant, v. GAINES FAMILY LIMITED PARTNERSHIP, Gaines Construction Inc. a/k/a Gaines Construction Company and William R. Gaines, Jr., Respondents.
    No. ED 93535.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 1, 2010.
    Harold A. Ellis, St. Charles, MO, for appellant.
    Charles W. Niedner, St. Charles, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

St. Charles County (“St. Charles”) appeals from the trial court’s judgment granting Gaines Family Limited Partnership, Gaines Construction, Inc., and William R. Gaines, Jr.’s (collectively, “Gaines”) motion for summary judgment. St. Charles asserts that the trial court erred in entering its judgment because: (1) neither Gaines’ summary judgment motion nor the trial court’s judgment disposed of St. Charles’ claim that Gaines violated the Unified Development Ordinance; (2) neither Gaines’ summary judgment motion nor the trial court’s judgment disposed of St. Charles’ affirmative defenses to Gaines’ counterclaim; (3) Gaines’ statement of un-controverted facts included facts not germane to Gaines’ and St. Charles’ claims and defenses; and (4) the trial court’s judgment improperly found that St. Charles unconstitutionally delegated its decision-making authority to a third party.

We have reviewed the briefs of the parties and the record on appeal and find the trial court did not err in granting Gaines’ motion for summary judgment. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Harry J. MCNEAL, Jr., Appellant.
    No. WD 69856.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Frederick J. Ernst, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Harry McNeal appeals his conviction and sentence for the felony of forcible rape. He complains on appeal about the police destruction of evidence that he alleges was “potentially exculpatory,” and about references by the State during the sentencing phase of his trial to alleged prior crimes. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Michael Allen STEPHENSON, Appellant.
    No. WD 70124.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Nancy A. McKerrow, Columbia, MO, for appellant.
    Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Michael Stephenson appeals his convictions for child molestation and statutory sodomy. The judgment is affirmed. Rule 30.25(b).


text:
    Michael W. CUNNINGHAM, Appellant, v. STATE of Missouri, Missouri DEPARTMENT OF CORRECTIONS, MISSOURI BOARD OF PROBATION & PAROLE, Respondents.
    No. WD 70217.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Michael W. Cunningham, acting pro se.
    Shaun J. Mackelprang and Stephen D. Hawke, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Michael Cunningham appeals the dismissal of his petition for declaratory judgment. The court dismissed the petition as being an impermissible collateral attack on his criminal convictions. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Ernesto ESCAMILLA-DIAZ, Appellant.
    No. WD 70754.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Margaret M. Johnston, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq. and John M. Reeves, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Ernesto Escamilla-Diaz appeals his conviction following a jury trial for possession of a controlled substance with intent to distribute, § 195.211, RSMo, for which he was sentenced to fifteen years’ imprisonment. In his single Point Relied On, Es-camilla-Diaz claims that the trial court abused its discretion by overruling his objection to evidence that he and an accomplice originally planned to transport 1,500 pounds of marijuana from Kansas City to Kentucky in a semi-truck, conduct for which he was not charged. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    David PETREE, Appellant-Respondent, v. Judy C. JOHNSON, et al., Respondent-Appellants.
    Nos. WD 70853, WD 70914.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Michael L. McDorman, for Appellant-Respondent.
    Robert H. Shaw, for Respondent-Appellant.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

David Petree appeals the judgment of the probate division of the circuit court in his discovery of assets action regarding the estate of his father, Carl H. Petree. Judy Johnson, Randy Petree, and Jennifer Petree cross appeal.

The judgment is affirmed. Rule 84.16(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    Chad MANTONYA, Respondent, v. Jamie D. MANTONYA, Appellant.
    No. WD 71368.
    Missouri Court of Appeals, Western District.
    June 8, 2010.

      J. Eric Mitchell, Clinton, MO, for respondent.
    William E. Simmons, Clinton, MO, for appellant.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Jamie Collins, formerly Mantonya, (“Mother”) appeals from the trial court’s judgment which denied her request to relocate from Clinton, Missouri, to Urich, Missouri. The trial court found that Mother failed to sustain her burden to prove that the proposed relocation was made in good faith and was in the best interests of the children. We affirm.

Facts and Procedural History

The marriage of Chad Mantonya (“Father”) and Mother was dissolved on July 31, 2007, in Henry County, Missouri. Mother and Father shared joint legal and physical custody of their two children, Cade, born May 12, 2003, and Gage, born April 14, 2004. After the dissolution, Mother lived in a two bedroom apartment with the children in Clinton, Henry County, Missouri.

On March 3, 2009, Mother gave Father proper notice, pursuant to section 452.377.7, of her intent to relocate the primary residence of the children to Urich, Henry County, Missouri. Urich is approximately fifteen miles from Clinton. Mother informed Father that she wished to move the children to Urich so that she could live with her soon to be new husband, Joseph Collins (“Collins”), and his children. Mother’s proposed relocation was to a home which was already owned by Collins. Under Mother’s relocation plan, the children, who had been attending Clinton schools, would begin attending school in the Sherwood School District.

On March 17, 2009, Father filed a timely motion to prevent the relocation. In Father’s motion, he objected to the relocation because he believed it to be in the children’s best interests to continue attending school in Clinton.

Before the trial court conducted a hearing on Father’s motion, Mother moved with the children to Urich, two days prior to the end of the school year. At the time, Cade was attending Henry Elementary in Clinton, and Gage was in a pre-school associated with the Clinton School District. As a result of Mother’s move, Father was required to travel to Urich to pick up the children for his scheduled visitation.

On May 4, 2009, Father sent Mother a letter which informed Mother that he intended to relocate from his parent’s home to a home he had purchased in Clinton, which was two and a half blocks from the Henry Elementary school Cade had been attending and that Gage would be attending. Mother did not respond to Father’s letter.

On June 15, 2009, the trial court conducted a hearing on Father’s motion. Mother summarily testified that the relocation was in the best interests of the children and that her decision to relocate was made in good faith. Mother testified that the move would be in the best interests of the children because they would be moving into a more spacious home only fifteen miles away. Collins’s home in Urich had three bedrooms. Mother testified at the hearing that she and Collins planned to add a fourth bedroom. As a result, Mother’s daughter from a previous marriage would have her own room, Mother and Collins would share a room, and Cade and Gage would share a room with Collins’s two youngest boys.

Father testified that the proposed relocation was not in the best interests of the children. Father believed the schools in Clinton offered the children more opportunities. Father testified that Clinton was building a new high school and that he preferred that the children stay in their current school district. Father testified that he did not object to the children living in Urich but that he did object to the relocation if it required the children to change schools.

On July 20, 2009, the trial court entered a judgment denying the proposed relocation. This appeal follows.

Standard of Review

“Our review of the trial court’s judgment denying or granting a motion to relocate a minor child is governed by the standard in Murphy v. Carron, 536 S.W.2d 30 (Mo. Banc 1976).” In re Steggall, 296 S.W.3d 25, 27 (Mo.App. W.D.2009). We “must affirm the judgment of the trial court 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.” Miers v. Miers, 53 S.W.3d 592, 595 (Mo.App. W.D.2001). We view the evidence in- the light most favorable to the trial court’s judgment, and we disregard all contrary evidence and inferences. In re Steggall, 296 S.W.3d at 27. ‘We will not reverse the trial court’s judgment on the basis that it is against the weight of the evidence unless we have a firm basis for concluding that the judgment is wrong or that it is against the logic of the circumstances.” Id. A trial court’s determination in a child custody matter is given more deference than in any other type of case. Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D.2000).

Analysis

In Mother’s sole point on appeal, she contends that the trial court erred in denying her relocation request. Mother contends that she presented sufficient evidence to sustain her burden to prove that the proposed relocation was made in good faith and that it was in the best interests of the children.

Relocation of a child is governed by section 452.377 and requires the party seeking relocation, in this case Mother, to prove that the proposed relocation is made in good faith and is in the best interests of the children. Section 452.377.9. Best interests are to be measured by the factors set forth in section 452.375.2. Cullison v. Thiessen, 51 S.W.3d 508, 511-12 (Mo.App. W.D.2001). Those factors are:

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

Section 452.375.2.

In its judgment denying Mother’s proposed relocation, the trial court stated:

The Respondent [Mother] bears the burden of proving that the proposed relocation is made in good faith and is in the best interests of the children. The court finds that the Respondent has failed to sustain that burden in this case, and the proposed relocation is therefore denied.

The trial court’s judgment includes no discussion of the section 452.375.2 best interest factors. The judgment provides us with no insight into the reasoning behind the trial court’s conclusion that Mother failed to sustain her burden to prove good faith and/or best interests.

Reported decisions in this State have created an atmosphere of uncertainty with respect to whether section 452.375.2 statutory best interest findings are required in all relocation cases. In Sleggall, a 2009 decision, we held that a trial court in a relocation matter is “not required to set out the factors it relied upon in determining whether or not the relocation is in the best interests of the child.” 296 S.W.3d at 28. Steggall cited Vaughn v. Bowman, 209 S.W.3d 509, 512-13 (Mo.App. E.D. 2006), for this proposition. However, in Schlotman v. Costa, 193 S.W.3d 430, 433 (Mo.App. W.D.2006) (citation omitted), we noted:

[I]f the parties disagree on the residence address of the child or on the parenting plan, these are sub-issues of custody that require the trial court’s resolution in the form of written findings. Therefore, it is safe to conclude that if relocation is contested, the trial court should be required to make written findings. In this case, Father contested relocation. The parties did not agree on the custodial arrangement, specifically where the children would reside. Therefore, the trial court should have made written findings on the relevant best interest factors and the public policy of Section 452.375.4.

(Emphasis added.) Schlotman relied on Buchanan v. Buchanan, 167 S.W.3d 698 (Mo. banc 2005) to reach this result. In Buchanan, the parties in a traditional dissolution proceeding agreed on joint custody as a custodial arrangement but could not agree on the child’s residence or on a parenting plan. The Supreme Court noted:

Determining custody and custodial arrangements of children in dissolution actions is one of the most important and most sensitive duties of the court.... Although the parties had agreed that father and mother should have joint custody, they did not agree on the residence address for the child or on a parenting plan. While these may be sub-issues of custody, they were contested and required the court’s resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written ñndings that include discussion of the applicable factors from section 452.375.2 are required.

Id. at 702 (emphasis added). The underpinning for Schlotman’s, application of Buchanan to all relocation cases may have been section 452.377.7, which provides that a proposed change in a child’s residence triggers the obligation to provide notice of intent to relocate.

Following Buchanan and Schlotman, we have favorably cited both decisions in traditional custodial dispute cases, noting, for example, in Jones v. Jones, 277 S.W.3d 380, 334-36 (Mo.App. W.D.2009), that section 452.375.2 statutory best interest findings were required where the parties were rn agreement on joint custody and nearly all provisions of a parenting plan, but could not agree which parent’s address should be designated as the children’s residence for educational and mailing purposes, However, other than Schlotman, no other case in Missouri has concluded that Buchanan should be read to apply to all relocation cases. In contrast, Vaughn and Steggall, albeit without discussion of Buchanan or Schlotman, clearly hold that a trial court need not make statutory best interest findings in relocation matters. Facially, at least,- the general legal principles stated in Schlotman and Steggall are in seeming opposition with one another.

We believe this seeming inconsistency can be harmonized. Buchanan involved a traditional dissolution proceeding where the proposed “custodial arrangement,” albeit uncontested by the parties, was a matter nonetheless before the trial court. It is thus possible that the Supreme Court only intended to require statutory best interest findings where the residence address of a child is in dispute because a section 452.375 “custodial arrangement” for the child is also before the court. If Buchanan is read in this manner, Schlot-man could be similarly read to apply in relocation cases, but only where a corresponding motion to modify the custodial arrangement has been filed, thus placing a section 452.375 dispute before the court. In Schlotman, father requested modification of the custodial arrangement to award him primary care, custody, and control of the children should relocation be approved. 193 S.W.2d at 432. In Steggall, by way of contrast, the only matter before the court was a section 452.377 motion to prohibit relocation; no motion to modify the custodial arrangement was filed. 296 S.W.3d at 27. We could thus construe Steggall’s statement that statutory best interest findings are not required in relocation matters to apply where modification of the custodial arrangement is not sought by either party.

These interpretations of Buchanan, Schlotman, and Steggall permit us to harmonize the decisions, and are consistent with the language of section 452.377. Since section 452.377, though requiring consideration of “best interests,” does not require written best interest findings, it follows that we should not impose the requirement of written findings on the trial court when the only matter before the court is a section 452.377 motion.

We acknowledge that Buchanan, Schlotman, and Steggall do not expressly indicate that application of the principle therein announced was intended to be constrained to the procedural contours of the case. We also acknowledge that our means of harmonizing these decisions is difficult to reconcile with Vaughn, where both the party seeking and the party opposing relocation had filed competing motions to modify the custodial arrangement. 209 S.W.3d at 511. We thus acknowledge that it is possible that Buchanan and Schlotman were intended to be applied as literally written, such that any case involving a dispute over a child’s residence (and thus every relocation case) requires statutory best interest findings. This would require us, however, to conclude that there is an actual conflict between Steggall and Schlotman. We are reluctant to draw that conclusion.

Here, Mother did not file a Rule 78.07(c) motion to amend the trial court’s judgment to address a failure to make statutory best interest findings. Typically, this would fail to preserve for review any claim of error associated with the trial court’s failure to include required statutory findings in its judgment. Holland v. Crow {In the Interest of Holland), 203 S.W.3d 295, 302 (Mo.App. S.D.2006). Though, in light of Steggall, Mother’s failure to raise such a claim of error in a post-judgment motion is excusable, the prospect of a conflict between Schlotman and Steg-gall could have been raised in a post-judgment motion. It was not. Thus, we are unwilling to conclude that an actual conflict exists between the holdings in Buchanan, Steggall and Schlotman in the presence of a reasoned basis for distinguishing these decisions, particularly as the prospect of an actual conflict has neither been raised nor briefed by the parties.

We therefore conclude that Buchanan, Schlotman, and Steggall are in harmony with one another based on their distinguishable procedural contours. As the case sub judice involved only a relocation dispute, and did not involve a motion to modify custody, we will apply the law as stated in Steggall. We conclude, therefore, that the trial court was not obliged to make factual findings on the best interest factors set forth in section 452.375.2. As “the trial court is silent as to the factors, the trial court is presumed to have considered all the evidence and [to have] made its ruling based on consideration of the relevant statutory factors, unless the record indicates otherwise.” Vaughn, 209 S.W.3d at 513.

We turn our attention, therefore, to whether the trial court’s judgment is supported by substantial evidence or is against the weight of the evidence with respect to its determination that Mother failed to sustain her burden to demonstrate that her request to relocate was in the best interests of the children and made in good faith. We note that the manner in which the judgment was written makes it unclear whether the trial court concluded that Mother failed to sustain her burden to prove both that the relocation was not in the best interests of the children and that the relocation was not made in good faith, or whether Mother failed to sustain her burden with respect to only one of these required elements. However, because the trial court was required to find that Mother met her burden as to both good faith and the best interests of the children, if either prong was not met, Mother has not sustained her burden, and the trial court’s judgment will be affirmed. Swisher v. Swisher, 124 S.W.3d 477, 480 (Mo.App. W.D.2003).

We will first examine whether a finding that Mother failed to sustain her burden to prove that the proposed relocation was made in good faith would be against the weight of the evidence. When a court considers whether a parent’s desire to relocate a child is in “good faith,” the question is whether “the relocating parent’s motive or purpose for relocating [is] something other than to disrupt or deprive the non-relocating parent of contact with the children.” Id. at 481. Here, Mother testified that her motivation for relocating was to enable her to live with her new husband in a home that would, when remodeled, accommodate Mother’s blended family unlike her two bedroom apartment. When questioned about how the relocation would affect Father’s custodial rights, Mother testified:

I didn’t think that it would change at all for the simple fact that I don’t want any of the visitations to change. When Chad was still currently living at his mom and dad’s, he got up in the morning, he brought the kids to me at the apartment. I got them ready for school, got them to school and he went to work. I just assumed that he would be doing the same thing.
I made it perfectly clear that when the kids got out of school on Wednesday and Thursdays I would drive them down to his work. We would be down here before he got off work at 4:00. So I really didn’t see that that was going to make much of a different [sic] because we were pretty much already doing that.

Father does not contend that relocation will affect his custodial rights. In fact, Father expressed no objection, generally, to relocation except insofar as relocation would require the children to change schools. There is simply no evidence in the record that relocation would disrupt or deprive Father of contact with his children, or that Mother intended relocation to have such an effect.

Mother did acknowledge that she physically relocated to Urich before the disposition of Father’s motion objecting to relocation. This violated section 452.377.7, which provides that the “residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation.” (Emphasis added.) The clear intent of this provision is to “stay” a parent’s relocation once a motion seeking to prevent relocation is timely filed until relocation is subsequently permitted by the court. Section 452.377 does not suggest, however, that relocation in the face of a motion seeking to prevent the relocation is suggestive that the request for relocation was not made in “good faith.” Rather, section 452.377.12 provides that:

Violation of the provisions of this section ... may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree. In addition, the court may utilize any and all power relating to contempt conferred on it by law or rule of the Missouri Supreme Court.

Father has not filed a motion to modify and has not sought a contempt order. This is not surprising, as Father has no objection to his children living in Urich, so long as they continue to attend school in Clinton.

We conclude that Mother’s relocation prior to the disposition of father’s motion opposing relocation does not, under the facts and circumstances in this case, suggest that the proposed relocation was intended to deprive Father of contact with his children. Therefore, we read the trial court’s judgment to mean that Mother failed to sustain her burden of proof to apply only to her obligation to prove that relocation was in the best interests of the children.

We thus examine whether a finding that Mother failed to sustain her burden to prove that the proposed relocation was in the best interests of the children was against the weight of the evidence. The record, albeit sparse, does include evidence relating to the best interests factors set forth in section 452.375.2. The evidence indicated the custodial arrangement ordered as a part of the initial decree of dissolution would not be affected by Mother’s relocation to Urich. The custodial arrangement provided for the children to be with Mother every Monday and Tuesday, and with Father every Wednesday and Thursday, with Mother and Father alternating every Friday through Monday. Relocation to Urich would not require alteration of this custodial arrangement. Relocation to Urich would, however, require Father to drive the children to Urich for school on Thursday and Friday mornings. Although Mother testified that she would pick up the children from school on Wednesdays and Thursdays and alternating Fridays to deliver the children to Father, Mother offered no such accommodation to Father to address transportation to school. Father testified that by moving out of his parents’ home and into a home near Henry Elementary, he had created an environment which would permit his children to walk to and from school, at least on those days when Father was to have custody.

The evidence indicated Mother’s marriage to Collins would permit her to be a stay at home mom. Such evidence can weigh in favor of proposed relocation. Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo.App.2001). However, mother presented no evidence to suggest that the only way she could be a stay-at-home mom was by relocating to Collins’s home in Urich. The convenience of moving to Collins’s existing home in Urich did not foreclose other options which would have permitted Mother’s new family to stay in Clinton. Stated differently, though Mother’s marriage to Collins appears to have been the decisive factor in permitting Mother to be a stay-at-home mom, the marriage to Collins did not necessitate a move to Urich other than to permit Mother and Collins to live in Collins’s existing home in lieu of finding a new home in Clinton. In fact, Mother testified that there were homes which could accommodate all seven family members in Clinton. Though Mother expressed a desire to have all of her children living together with Collins’s children and attending the same schools, Mother offered no evidence that the proposed relocation to Urich was the only viable option for Mother to accomplish this objective.

Father’s principal (and in fact only) objection to Mother’s relocation was that the relocation would require the children to change schools. Section 452.375.2(5) identifies the children’s adjustment to home, school, and community as a relevant “best interest” factor. Father testified that he believed it to be in the children’s best interest to continue attending school in the Clinton School District, a school district in which Cade had been enrolled for two years and in which Gage had been enrolled for one year. Father testified:

Q: Is there — Why do you believe that they should attend the Clinton Schools District verses the Sherwood School District?
A: I believe for their future they’d have better opportunities in this school district.
Q: Are you familiar with whether or not the Sherwood School District has built or constructed any new buildings on behalf of their educational system? A: I am unaware that they have.
Q: Are you aware of whether or not Clinton School District has constructed any new facilities on behalf of their educational system?
A: Yes.... Construction of a new high school. They’re giving more room for the other grades to expand, also.
Q: Do you have any intent in relocating your residence from Clinton to anyplace else prior to your children receiving a high school graduation?
A: No.

Mother failed to present any evidence relating to the impact of relocation on the children’s education. When questioned about the Sherwood School District and about activities that would be provided for the children in the elementary schools, Mother responded,

A: I’m not aware of what they allow in their schools. I don’t know.
Q: You haven’t even went [sic] to attend the school; is that right?
A: I went there and I talked to the— the counselor and the people that do like the kindergarten screening for Gage. They said they normally don’t do anything until they do enrollment, and then when you do your enrollment they let you know pretty much what things will — what things are like and teachers and—

Mother was aware from Father’s motion that Father was concerned about the children changing schools. Yet, Mother presented no meaningful evidence to address this concern, notwithstanding the fact she bore the burden to prove relocation was in the children’s best interests.

Based on the foregoing, we cannot conclude that the trial court’s determination that Mother failed to sustain her burden to prove that relocation was in the best interests of the children was against the weight of the evidence or was not supported by substantial evidence.

We are mindful that the impact of affirming the trial court’s judgment is to prohibit an intrastate, fifteen mile relocation, while other decisions of this court have affirmed judgments permitting interstate relocations distancing parents with custodial rights by hundreds of miles. However, such seemingly inconsistent outcomes are wholly consistent with the fact that each request for relocation must be determined based on the unique and particular facts of the case presented to the trial court. Vaughn, 209 S.W.3d at 512 (“Disputes concerning the relocation of a child must be resolved on their particular facts.”) The deference we afford trial court judgments in relocation matters reflects the trial court’s superior position to evaluate the facts in each case, and to assess, based on those unique facts, the best interests of the children.

Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.

All concur.

      . In addition to Cade and Gage, Mother also has an older daughter by a previous marriage.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      .Mother and Collins were married shortly before the hearing giving rise to the trial court's judgment. Collins has full custody of two boys from a previous marriage and has visitation rights with a son and a daughter from a previous marriage.

      . The principle that “the trial court is not required to set out the factors it relied upon in determining whether or not the relocation is in the best interest of the child" recited in Steggall was supported by citation to Vaughn, 209 S.W.3d at 512-13. Steggall, 296 S.W.3d at 28. Vaughn cites Herigon v. Herigon, 121 S.W.3d 562, 569-70 (Mo.App. W.D.2003), as its support for the same proposition. Herigon cites Weaver v. Kelling, 18 S.W.3d 525, 528 (Mo.App. W.D.2000), as its support for the same proposition. Weaver cites Edmison ex rel. Edmison v. Clarke, 988 S.W.2d 604, 608-09 (Mo.App. W.D. 1999), as its support for the proposition. Edmison cites Flathers v. Flath-ers, 948 S.W.2d 463, 471 (Mo.App. W.D. 1997), as its support for the proposition.

        Steggall, Vaughn, Herigon, and Weaver were relocation cases. Edmison and Flathers were traditional dissolution cases. Edmison and Flathers applied versions of section 452.375 in effect before 1998. See Edmison, 988 S.W.2d at 608, n. 2. Before 1998, section 452.375 did not include subsection 6, the subsection which imposed the statutory obligation on trial courts to make written findings in any judgment or order with respect to each of the factors listed in section 452.375.2(1) to (8) where “the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child.” Section 452.375.6 (emphasis added).
      After the 1998 revision to section 452.375, trial courts were thus required to make written statutory findings relating to the section 452.375.2 best interest factors whenever custodial arrangements were in dispute. Yet, after 1998, as is evidenced in the above described line of cases beginning with Weaver, the principle which relieved trial courts from an obligation to make express best interest findings, though no longer applicable to traditional dissolution matters, continued to appear in relocation cases.
      This differentiation was supportable. Before Stowe v. Spence, 41 S.W.3d 468 (Mo. banc 2001), “best interests” in the context of relocation cases were measured by a four-part test set out in Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App. S.D.1992). The four-part test was different from the eight best interest factors set forth in section 452.375.2, explaining, perhaps, the less stringent standard imposed on relocation judgments. In Stowe, however, the Supreme Court concluded that the 1998 amendment to section 452.377 required abandonment of the Michel four-part test. Stowe, 41 S.W.3d at 469. The Supreme Court stated that "section 452.377 now requires the court to determine that the relocation: (1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of [section 452.377.10].” Id. The Supreme Court did not advise, however, how “best interests” should be measured. In Cullison, 51 S.W.3d at 511-12, and in Abernathy v. Meier, 45 S.W.3d 917, 924 (Mo.App. E.D.2001), our appellate courts concluded that best interests in relocation cases must be determined by reference to the eight best interest factors set forth section 452.375.2. See Dorman v. Dorman, 91 S.W.3d 167, 172 (Mo.App. W.D.2002). Since that time, Missouri courts have held that in considering a relocation request, a trial court is required to evaluate the same section 452.375.2 best interest factors applicable to disputes over "custodial arrangements.” Steggall, 296 S.W.3d at 27.
      Despite the parallel use of section 452.375.2 to assess “best interests,” relocation and traditional dissolution judgments remained subject to different standards, however, with respect to the trial court's obligation to make written best interest findings. Our courts likely concluded that section 452.377 relocation requests were not disputes over custodial

        arrangements and, thus, were not covered by section 452.375.6. "Custody” is narrowly defined in section 452.375.1(1) as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.” One could reasonably construe the phrase "custodial arrangements” to be limited, therefore, to those instances where a court was being asked to decide which form of "custody” to award. As relocation requests do not inherently require a trial court to determine "custody” as so defined, a reasoned basis to exclude section 452.377 relocation matters from the reach of section 452.375.6 could be argued, a conclusion further supported by the fact that section 452.377.9 does not expressly require statutory best interest findings.

      . We realize this requires us to ignore Vaughn, which cannot be reconciled with harmonizing Buchanan, Schlotman, and Steggall based on their procedural differences.

      . This case is to be distinguished from Weaver v. Kelling, 18 S.W.3d 525, 528 (Mo.App. W.D. 2000), previously cited in this Opinion.

      . Apparently, neither party considered or was willing to file a motion to modify the parties’ parenting plan to seek, in light of Mother’s relocation request and Father's singular objection to the same, an adjustment in the address designated for the children for educational and mailing purposes from Mother's to Father's address. Our Opinion does not foreclose this possibility, which, based on the record before us, would likely result in Father withdrawing his opposition to Mother’s relocation request as long as the children attend school in Clinton.


author: KAREN KING MITCHELL, Presiding Judge.

text:
    Howard L. THACKER, Respondent, v. Maryam Kayumova THACKER, Appellant.
    No. WD 71266.
    Missouri Court of Appeals, Western District.
    June 8, 2010.

      Connie J. Clark, Osage Beach, MO, for Appellant.
    Wallace W. Trosen, Kirksville, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   KAREN KING MITCHELL, Presiding Judge.

Appellant Maryam Kayumova Thacker (“Wife”) appeals the Circuit Court of Miller County’s (“trial court”) judgment of dissolution of the marriage between Wife and Howard Thacker (“Husband”). We affirm the judgment of the trial court.

Factual and Procedural Background

Wife, a Russian school teacher, met Husband, a retired physician, over the internet on November 30, 2005. The two communicated by internet and then by telephone two to three times per week. In June of 2006, Husband traveled to Russia to meet Wife in person and to meet her daughters. Husband and Wife had discussed the possibility of marriage prior to Husband’s arrival in Russia, and while he was there, he asked Wife to marry him. She accepted Husband’s proposal because she loved him and thought that he would make a good husband for her and a good father for her daughters. Husband had also recently purchased a house, and he excitedly showed Wife pictures that he had taken of the house and of his car.

After Husband returned to the United States, he kept in contact with Wife over the telephone and the internet. The email messages that Husband sent to Wife professed his love for her and his excitement over the prospect of their becoming a family. One e-mail message sent in August of 2007 suggested that Wife would pick out a new Toyota Sequoia when she arrived in the United States and included photos of the vehicle in various available colors.

In January of 2008, Husband submitted Affidavits of Support to the Department of Homeland Security stating that Husband intended to contribute to the support of Wife and her daughters, that he would marry Wife and adopt her daughters, and that they would be a family. Husband also sent a letter to the American Embassy in Russia to facilitate Wife’s visa. The letter stated his intention to marry Wife and provided financial information regarding Husband’s assets and income. Husband suggested to Wife that she have her ex-husband sign away his parental rights to Wife’s daughters to facilitate her visa.

Anticipating her move to the United States and her marriage to Husband, Wife sold her apartment in Russia, perhaps for a discounted price, and sold many of her possessions and several of her daughters’ possessions. She wanted to be ready to leave Russia as soon as her visa was approved. After making travel preparations, Wife sent all of the remaining proceeds from the sale of her assets to Husband in the United States.

Wife and her daughters arrived in the United States at the end of January 2008. Wife and her daughters immediately moved in with Husband. Wife’s daughters, ages thirteen and sixteen, were frightened to live in Husband’s house because there was no solid fence around the house, as there apparently is around most Russian homes, and because they believed that they heard noises in the attic or outside of their windows.

Wife’s youngest daughter, R.K., was particularly frightened and had trouble sleeping. Wife testified that in mid-February, R.K. asked whether she might come in and sleep in Husband’s and Wife’s bedroom. Husband agreed to allow R.K. to sleep with them, but only if she slept in the middle. At about four o’clock in the morning, R.K. awoke Wife and was visibly upset. R.K. reported to Wife that Husband had touched her inappropriately. Wife confronted Husband about the incident the next morning and he denied R.K’s story, suggesting she had just had a bad dream. Husband assured Wife that, in any event, it would not happen again, and Wife decided to forgive Husband and give him another chance because she loved him and did not want to return to Russia.

Wife married Husband March 29, 2008, but the marriage was troubled. Wife testified that she did not like the way Husband spoke to her, Husband’s frequent pornography viewing, Husband’s constant demands for sex, the presence of Husband’s loaded firearms in the house, and Husband’s taking photos of her daughters. Husband testified that Wife was never happy, that she complained about the house, and that he was disappointed that Wife’s interest in sex seemed to decrease after the marriage. He stated that he did not like the attitudes of Wife’s teenage daughters and did not believe that they helped enough around the house.

On May 29, 2008, a Missouri Department of Social Services worker visited the Thackers’ home because someone had reported the February alleged incident between Husband and R.K. An investigation was conducted and all family members were interviewed. Wife and the Social Services worker testified that the Social Services worker advised Wife that she should remove her daughters from the house immediately or that Husband should leave the house, but that the girls would not be allowed to stay in the home with Husband. Wife took the girls and moved into a shelter. A few days later Wife attempted to reconcile with Husband, but he refused and petitioned the court for dissolution of the marriage. Wife filed a counter-petition seeking spousal maintenance and child support on the theory that Husband’s representations to the Department of Homeland Security in January of 2008 evidenced an express contract between Husband and Wife that Husband would provide financial support for Wife and her daughters and, arguably, that Wife and her daughters relied, to their detriment, on Husband’s representations promising support, so that Husband should be estopped from denying any obligation to support them after the dissolution.

The trial court entered a judgment dissolving the marriage. At the time the judgment was issued, Wife had obtained a social security number and was employed as a teaching assistant, earning a gross monthly income of $1,058.21. The trial court found that when Wife accepted Husband’s proposal of marriage in June of 2006, Husband had not made representations to Wife that he would adopt her children and treat them as his own. The trial court further found that neither Husband’s affidavits of support submitted to the Department of Homeland Security in January of 2008 nor his letter to the American Embassy in Russia established the existence of an express or implied contract to provide support to Wife and her daughters in the event of the couple’s divorce. As to Wife’s estoppel theories, the trial court found that life for Wife and her daughters in Russia was difficult; that Wife had not received support from her ex-husband for her daughters; and that Wife and her daughters wanted to come to the United States and chose to remain. Thus, any reliance by Wife and her daughters on Husband’s promises of support was not to their detriment.

Of the marital assets, the trial court awarded Wife a 1998 Ford Explorer that Husband had purchased for her; $19,712 representing a portion of the interest income earned during the marriage; $2,956 representing stock dividend income during the marriage; and ordered Husband to pay $3,000 of Wife’s attorney fees. The trial court awarded Wife no maintenance and no child support. Wife appeals.

Standard of Review

We review a trial court’s judgment in dissolution proceedings under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will reverse the judgment of the trial court if there is no substantial evidence to support it, if it is against the weight of the evidence, if it erroneously declares the law, or if it erroneously applies the law. Id. We defer to the trial court’s judgment as to credibility of witnesses and evidence. Potts v. Potts, 303 S.W.3d 177, 184 (Mo.App. W.D.2010).

Legal Analysis

Wife’s first point on appeal is that the trial court erred in failing to award child support because Husband and Wife had expressly contracted for Husband’s support of the children in exchange for Wife’s agreement to marry Husband. Wife’s first point has three subpoints: (1) that the trial court erred in determining that an agreement to marry could not constitute consideration in a contract for support; (2) that the trial court erred in finding that Wife failed to state a claim upon which relief could be granted; and (3) that the trial court erred in finding that Wife did not meet her burden of establishing an express contract for child support. Because we agree with the trial court that Wife did not establish that an express contract of support existed, we need not address Wife’s other two subpoints.

Generally, a step-parent must provide support for his or her step-children so long as the step-children reside in the same house as the step-parent. § 453.400.1. The obligation for the stepparent to provide support ends, however, when the step-children no longer live with the step-parent. Id:, White v. White, 293 S.W.3d 1, 16 (Mo.App. W.D.2009). Of course, a couple may contract to have child support continue even after the step-child no longer lives with the step-parent. L v. L, 497 S.W.2d 840, 841-42 (Mo.App.1973).

For Wife to establish that she and Husband expressly contracted for Husband to continue supporting Wife’s daughters after he was no longer statutorily required to do so, Wife would have to have established that, in exchange for her promise to marry Husband, or for some other consideration, Husband promised to Wife that he would support her daughters, even if they no longer lived with him. Wife testified at the trial that she married Husband because she loved him and because she thought that he would make a good father and a good husband, and not specifically because Husband had promised to support her daughters. In fact, all of the evidence of Husband’s promises or intentions that Wife provided to the trial court originated well after Wife had accepted Husband’s marriage proposal. Therefore, we agree with the trial court’s conclusion that Wife’s agreement to marry Husband was not, in this case, consideration for an express contract for Husband’s support of Wife’s daughters. Point denied.

Wife’s second point on appeal is that the trial court erred in failing to order child support for Wife’s daughters based upon her theory of estoppel. Again, the trial court found that Wife had failed to state a claim upon which relief could be granted or, in the alternative, that she had not met her burden with respect to her claim of estoppel. Because we agree with the trial court that Wife did not meet her burden with respect to her claim of estop-pel, we need not decide whether the trial court erred in finding that Wife failed to state a claim upon which relief could be granted.

Our courts have held that support obligations may be imposed based upon an estoppel theory. See Stein, 831 S.W.2d at 688; S.E.M. v. D.M.M., 664 S.W.2d 665, 667-68 (Mo.App. E.D.1984). Estoppel cases center upon promises of support made either directly to the children, S.E.M., 664 S.W.2d at 667, or to the children’s parent, Stein, 831 S.W.2d at 689. See also White, 293 S.W.3d at 26 n. 1 (Ahuja, J., dissenting). To establish a claim for child support on an estoppel theory, Wife would have to have proven: (1) that Husband promised to support Wife’s daughters; (2) that Wife (or her daughters) had relied on Husband’s promise to their detriment; (3) that Husband expected or should have expected such reliance; and (4) that injustice resulted from the reliance that only enforcement of the promise could cure. See White, 293 S.W.3d at 27 (Ahuja, J., dissenting); Bauer Dev. LLC v. BOK Fin. Corp., 290 S.W.3d 96,100 (Mo.App. W.D.2009).

In Stein, 831 S.W.2d at 689, a couple had agreed to adopt a baby from Korea. The wife in the dissolution proceeding sought an award of support for the child from her husband based upon an estoppel theory. Id. The Eastern District of this court held that, because the child was not worse off having been adopted by the wife and brought to the United States than she had been as an orphan in Korea, there had been no showing of detrimental reliance upon the husband’s promises to support the child. Id.

In this case, even assuming that Wife and her daughters had relied upon promises of support made by Husband in deciding to come to the United States, substantial evidence exists to support a finding by the trial court that such reliance was not to the detriment of either Wife or her daughters. Wife testified that her life in Russia was not easy. Although she owned an apartment in Russia, she had to work two jobs to support herself and her daughters. The girls’ father did not contribute to their support, and at one time Wife had to sell some of her jewelry to provide for her daughters. Wife testified that her life in the United States was difficult also, yet she had made no attempts to return to Russia with her daughters despite having return plane tickets. On the contrary, Wife had hired an immigration lawyer to facilitate her staying in the United States, and one of her daughters testified at trial that she also wanted to stay in the United States. The trial court’s conclusion that Wife failed to meet her burden with respect to her estoppel claim was supported by substantial evidence and was not against the weight of the evidence. Point denied.

Wife’s third point on appeal is that the trial court erred in failing to award her maintenance because she had established that she and Husband had expressly contracted that he would provide her maintenance and because she meets the requirements of section 452.335 for statutory maintenance. First, for the reasons stated above, we find that Wife’s claim for maintenance based upon express contract fails. The evidence supports a finding that Wife married Husband because she loved him and not because of any express promises that he would provide her maintenance after the duration of the marriage.

As to the trial court’s denial of statutory maintenance, we note that section 452.335 does not require an award of maintenance, even if the trial court makes the required findings that the spouse seeking maintenance lacks the resources to provide for her reasonable needs. We do not reverse a trial court’s refusal to award maintenance absent an abuse of discretion. Hammer v. Hammer, 139 S.W.3d 239, 240 (Mo.App. W.D.2004). In determining what maintenance is appropriate, a trial court is to consider:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.

§ 452.335.2.

In this case, the trial court found that Wife had roughly $8,000 of non-marital funds; a washer and dryer; the 1993 Ford Explorer that Husband had bought for her; the $22,667 of marital assets awarded to Wife; and the $3,000 toward her attorney’s fees to contribute to her support. The trial court also noted that Wife was thirty-seven years old at the time of judgment and in excellent health; that she was college educated in Russia and spoke three languages fluently; and that she had obtained employment. The court specifically reiterated that conduct occurring before the marriage (presumably referring to the alleged incident between Husband and R.K.) was not considered in determining whether maintenance is appropriate under the statute. The trial court therefore concluded that Wife would be able to support her reasonable needs without an award of maintenance. We do not find that the trial court in this case abused its discretion in declining to award Wife maintenance under the statute. Point denied.

For her final point on appeal, Wife claims that the trial court erred in refusing to award her additional attorney fees because she could not afford her attorney’s fees and because she presented valid causes of action at trial. We will reverse the decision of the trial court with respect to its award of attorney fees only if we find that the court has abused its discretion. Alberswerth v. Alberswerth, 184 S.W.3d 81, 93 (Mo.App. W.D.2006).

Section 452.355.1 allows the trial court to award attorney fees to a party in a dissolution proceeding after it has considered “all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action.” (Emphasis added.) In this case, the trial court stated:

Both parties have incurred substantial attorney fees. In regard to [Wife’s] request for award of attorney’s fees under Section 452.355.1 RSMo., the Court has considered all statutory factors. Premarital conduct is not relevant as a factor for the Court to consider. [Wife’s] evidence on her theories of recovery is neither credible nor persuasive and [Husband] should not be required to pay for attorney fees to advance [Wife’s] claims which were never credible under the factual scenario of this case. [Husband] should pay his individual attorney fees and $3000 of [Wife’s] attorney fees.

Wife claims that the trial court declined to award her more attorney fees because it improperly concluded that Wife’s theories of recovery were not supported by Missouri law. She argues that because Missouri courts have held that awards of maintenance and child support based upon theories of contract and estoppel may be had, the court erred in its evaluation of the merits of her case. A plaintiff in an action for breach of contract or on a general estoppel theory, however, is normally not entitled to attorney fees. Just because Wife alleges a breach of contract within the context of an action for dissolution, it does not render her contract or estoppel claims subject to section 452.355.1’s discretionary provision of attorney fees. Accordingly, we do not find that the trial court abused its broad discretion with respect to its award of attorney fees. Point denied.

Conclusion

For all of the above reasons, we affirm the judgment of the trial court.

LISA WHITE HARDWICK, Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . The trial court made no findings with respect to this alleged incident, noting that even if Wife’s allegations were true, the alleged incident occurred prior to the marriage and is thus legally irrelevant as to her claims of maintenance. We agree with the trial court's analysis and mention the alleged incident only as background and to explain why Wife and her daughters left the marital residence.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . Contracts are generally wholly separate from issues in dissolution proceedings. Thus, had Wife successfully shown that an express or implied contract existed, we presume that any contractual “maintenance” or “support” would properly have been awarded, either by the court or by a jury, in a lump sum. We do not, in this opinion, endorse a concept of awarding statutory maintenance or child support for a breach of contract.

      .We agree with Husband that the support affidavits that Husband submitted to the Department of Homeland Security and his letter to the Embassy do not constitute contracts for support. Stein v. Stein, 831 S.W.2d 684, 688 (Mo.App. E.D.1992). However, they could still possibly have been evidence to support a finding of an express contract between the parties, especially had they been closer in time to the proposal. In this case, the trial court found no express promise of support, and that finding is not against the weight of the evidence.


text:
    Tammy MARTINE, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71527.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Kevin A. Graham, for Appellant.
    Ninion S. Riley, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C.‘ HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Tammy Martine appeals the decision of the Labor and Industrial Relations Commission, which found that Martine was discharged for misconduct connected with work and was, therefore, disqualified from receiving unemployment benefits. On appeal, Martine claims that the Commission’s decision was erroneous because the evidence did not establish that she willfully violated her employer’s rules. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The decision of the Commission is affirmed. Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. Shauntay L. HENDERSON, Appellant.
    No. WD 70606.
    Missouri Court of Appeals, Western District.
    June 8, 2010.

      S. Kate Webber, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, P.J., LISA WHITE HARDWICK and CYNTHIA MARTIN, JJ.
   LISA WHITE HARDWICK, Judge.

Shauntay Henderson was convicted of voluntary manslaughter and armed criminal action following a bench trial. On appeal, Henderson contends the circuit court erred in denying her motion for judgment of acquittal and in entering judgment on the convictions because the State failed to prove the absence of self-defense beyond a reasonable doubt. For reasons explained herein, we affirm the circuit court’s judgment.

Factual and ProcedüRal History

On September 2, 2006, DeAndre Parker parked a Ford F150 truck in front of the entrance to a gas station and convenience store in Kansas City. Parker went inside the store to purchase cigarettes while his passenger, Miea Bentley, remained outside in the truck. Another vehicle pulled into the gas station and parked by the gas pumps. The driver of that vehicle got out and went inside the store. As Parker came out of store and got into the truck, a woman, later identified as Shauntay Henderson, exited the backseat of the vehicle by the pumps and walked toward the entrance of the store. As Henderson passed in front of the truck, she pulled a gun from her waistline, fired five rounds at the truck, and fled the scene. Parker was struck by a bullet and died from his injuries.

Crime scene technicians recovered five shell casings from the scene and located bullet impacts to the truck on the driver’s door, driver’s rear quarter panel, driver’s rear tire, and front passenger tire. A fifth bullet went through the driver’s window, through Parker’s arm, and into his chest. No firearms were recovered from the scene.

Bentley identified Henderson’s photo in a police lineup, and Henderson was charged with second-degree murder, a violation of Section 565.021, and armed criminal action, a violation of Section 571.015.

During a bench trial, the State presented testimony from Miea Bentley and crime scene investigators. The court admitted into evidence photographs and diagrams of the scene that depict the position of the truck in relation to the entrance of the convenience store and surrounding objects.

Henderson testified and admitted to firing at the truck but claimed to have acted in self-defense. She said she did not know Parker was at the gas station and first noticed him while walking into the store to get a drink. As she passed in front of the truck, Parker’s facial expression changed, he put the truck into gear, and he drove toward her. Henderson jumped backwards and thought she was cornered between the outside wall of the store and an ice machine. When Parker steered the truck toward her and began to move forward a second time, Henderson believed Parker was either going to run over her or shoot her. She drew the gun and fired wildly at the truck as she ran around the truck and escaped.

Henderson testified she had known Parker for many years. In early 2003, Parker had punched her in the face during an altercation about a go-cart. Parker previously had been shot, and a rumor had circulated that she had been involved in that shooting. In December of 2003, Parker’s brother had fired a shotgun at her when she approached the brother to dispel the rumor. In the spring or summer of 2004, Parker had nearly run over her with a car while she was walking through a parking lot. Henderson also testified Parker was known to carry a gun, but she did not see him with a gun at the time of the shooting at the gas station.

At the conclusion of the trial, the circuit court acquitted Henderson of second-degree murder and convicted her of the lesser-included offense of voluntary manslaughter, Section 565.023, and armed criminal action. In rejecting Henderson’s claim of self-defense, the court found as follows:

Did Ms. Henderson act in lawful self-defense? Again, based upon what I’ve heard, the answer to that question is no. Under the law in the State of Missouri, she did not act in lawful self-defense.
[Defense counsel] was right on the definition of self-defense, to an extent. But he left out an important element. The actor, acting in self-defense, must do everything in her power, consistent with her own safety, to avoid danger and retreat, if possible. [Ms. Henderson] did not avail herself of those avenues. She had an avenue of retreat.
... She mentioned, I think in her testimony, the possibility of seeing a gun or a gun being present or of an insinuation or an assumption that there was a gun on Mr. Parker.
There’s absolutely no evidence of that. In her prior contact with Mr. Parker, no gun was mentioned, no gun was used.
A fist was used, a car was used, but there’s no gun ever used. It simply is an assumption on her part and not even a strong assumption, at that. No tangible evidence or any evidence whatsoever that Mr. Parker had a gun.
So I don’t think realistically she was in fear of a gun. I do think she thought that he was driving towards her yet again. I think that’s what started this whole ugly scene. She could have escaped. She could have gotten behind that ice machine. She could have run into that [store] or she could have done as she did and just ran away. She is no match. She could have easily out-maneuvered a Ford F150.
So I don’t think that she acted in self-defense.

The circuit court sentenced Henderson to a ten-year prison term for voluntary manslaughter but suspended execution of the sentence and placed her on probation for five years. The court sentenced her to a three-year prison term for armed criminal action. Henderson appeals the convictions.

■ Standard of Review

In a judge-tried case, our review of a trial court’s ruling on a motion for judgment of acquittal is for whether there was sufficient evidence from which the trial court could have found the defendant guilty beyond a reasonable doubt. State v. Brushwood, 171 S.W.3d 143, 146 (Mo.App.2005). “In making that determination, we accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding and ignore all contrary evidence and inferences.” Id. “We do not weigh the evidence or decide the credibility of witnesses, but defer to the trial court.” Id.

Analysis

In her sole point on appeal, Henderson contends the circuit court erred in denying her motion for judgment of acquittal and in entering judgment on the voluntary manslaughter and armed criminal action convictions because the State failed to prove the absence of self-defense beyond a reasonable doubt. Henderson argues a reasonably prudent person in her circumstances would have believed deadly force was necessary because the only avenue of escape from the danger of the moving truck was to use a firearm.

“A person may, [subject to certain limitations not relevant to this appeal], use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person....” § 568.031.1. A person may not use deadly force in self-defense unless, among other limitations not relevant to this appeal, “[h]e or she reasonably believes that such deadly force is necessary to protect himself or herself or another against death, serious physical injury, or any forcible felony.” § 563.031.2(1).

“According to the case law interpreting [Section 563.031], to support a self-defense instruction, the evidence must show: (1) an absence of aggression or provocation on the part of the defender; (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate danger of serious bodily injury or death; (3) a reasonable cause for the defendant’s belief in such necessity; and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.” State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005). “Once the defendant has injected the issue of self-defense into the case, the burden shifts to the state to prove the absence of self-defense beyond a reasonable doubt.” State v. Allison, 845 S.W.2d 642, 645 (Mo.App.1992).

“A person is entitled to acquittal as a matter of law on the basis of self-defense only if there is undisputed and uncontradicted evidence clearly establishing self-defense.” State v. Dulaney, 989 S.W.2d 648, 651 (Mo.App.1999). Where there is conflicting evidence or when different inferences can reasonably be drawn from the evidence, whether the defendant acted in self-defense is a question for the trier of fact. Allison, 845 S.W.2d at 646.

Here, the photographs and diagrams admitted into evidence depict the relative position and orientation of the truck in relation to the entrance of the convenience store and surrounding objects. Henderson testified she acted in self-defense because she believed Parker was either going to run over her or shoot her and escape required the use of a firearm. Henderson testified Parker had never threatened her with a gun before, and she did not see him with a gun at the time she began shooting.

The evidence reasonably supports the trial court’s conclusion that Henderson did not do everything in her power to avoid firing upon Parker because the evidentiary photographs and diagrams support an inference that she could have escaped the moving truck by getting behind the ice machine outside the store, running into the store, or simply running away, without opening fire. Additionally, the fact that all of the bullet impacts are on the driver’s side, rather than the front, of the truck, supports an inference that Henderson did not open fire upon Parker until after she was alongside the vehicle and out of danger of being run over. Even if Henderson fired out of fear of being shot, notwithstanding available avenues of retreat, the evidence supports a conclusion that she did not have reasonable cause to believe Parker was going to shoot her because Parker never threatened her with a gun and she had not seen Parker with a gun at the gas station.

Henderson has failed to demonstrate that there was “undisputed and uncontra-dicted evidence clearly establishing self defense.” Dulaney, 989 S.W.2d at 651. The circuit court did not err in denying the motion for judgment of acquittal because the evidence at trial was sufficient to support a conclusion, beyond a reasonable doubt, that Henderson did not act in self-defense when she fired shots at Parker.

Conclusion

The judgment of convictions is affirmed.

All Concur.

      . All statutory citations are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009.