author: WILLIAM W. FRANCIS, JR., Judge.

text:
    In The Interest of: L.M. and A.M., Minors, R.J.M., Natural Father, Appellant, v. Phelps County Juvenile Office, Respondent.
    Nos. SD 30082, SD 30083.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 20, 2010.

      Nanci R. Wisdom, Salem, MO, for Appellant.
    Frank B. Schweitzer, Salem, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

R.J.M. (“Father”) appeals the respective judgments terminating his parental rights to his minor children, L.M. and A.M. (“Children”). We affirm the judgments of the trial court.

Factual and Procedural History

“ ‘In reviewing a trial court’s judgment terminating parental rights, we consider the facts and reasonable inferences therefrom in the light most favorable to the judgment.’ ” In the Interest of L.M. and S.C.M., 212 S.W.3d 177, 180 (Mo.App. S.D.2007) (quoting In the Interest of A.M.F. and D.R.F., 140 S.W.3d 201, 203 (Mo.App. S.D.2004)). Viewed in this light, the facts and reasonable inferences therefrom follow.

H.M.B. (“Mother”) is the natural mother of the Children. L.M. was born January 14, 2006, and A.M. was born July 7, 2004. Prior to May 2007, Father and Mother were together for approximately three to three-and-one-half years.

In late April or early May 2007, Mother left the household mobile home without any of her children, including her son from a prior relationship. Father returned that son to the son’s natural father. Father then had the Children in his sole care for approximately thirty days. Mother visited periodically and supplied food utilizing the family food stamp card.

Toward the end of May 2007, Mother found the Children alone in the trader. Father was at the landlord’s house smoking marijuana. L.M. was strapped in a car seat and A.M. was moving about inside the trailer. The Children were screaming, very hungry, and thirsty. Father denied this incident. Mother then left with the Children and Father did not see or talk to Mother again until she testified at trial on January 9, 2009.

On June 7, 2007, Mother delivered the Children to the Phelps County Juvenile Office (“Juvenile Office”), where they were accepted under that court’s jurisdiction. She stated the biological father had kicked her out of her home, she was concerned for the safety of the Children, and she could not care for the Children. The Children were very dirty with bug bites, diaper rash and dirty diapers. The Children were out of control, aggressive toward each other, and did not follow instructions. Mother told the Missouri Department of Social Services, Children’s Division (“Children’s Division”) caseworker, Christine Abmeyer (“Ms. Abmeyer”), she did not know how to contact Father and that no one else was available to care for the Children. However, she did advise that Father worked at Hardee’s in Rolla, Missouri.

That same day, the Children were placed in a foster home. However, they had to be moved within a few days because the foster parent could not handle their behavior with other children in the home. On June 11, 2007, the Children were placed in a second foster home. When the Children were placed with this foster parent, they were aggressive towards each other, running around, yelling, hitting and biting. The foster parent also indicated the Children were constantly worried about getting enough to eat. They would guard and hoard their food, eat dog food and eat from the trash.

Ms. Abmeyer testified that after Mother left the Children, she attempted to contact Father at Hardee’s and left a message for him. On Tuesday, June 19, 2007, she spoke with Father and informed him the Children were in the State’s care. During that telephone conversation, Father identified himself as “R.J.M.” and referred to the Children by their names. He also provided an address where he could be reached. Father advised he was not working Thursday or Friday and would come to her office to see her. He did not appear on either day. Ms. Abmeyer noted he did not request the Children be placed with him nor did he ask if he could visit the Children. Father denied having this conversation. Ms. Abmeyer also sent a letter to Father’s address inviting him to the Family Support Team (“FST”) meeting. The letter was not returned, but Father failed to appear at the “FST” meeting.

In September 2007, Phyllis Sickman (“Ms. Sickman”), a Children’s Division caseworker, took over the case. In her efforts to locate Father, Ms. Sickman contacted jails in the area, prosecuting attorney offices, checked Missouri case.net, called Hardee’s, sent a letter to Father’s last known address, and screened for Social Security entries. She did not check with the Division of Child Support Enforcement. However, the Division of Child Support Enforcement sent Father the paternity test results for L.M. Father did not respond as he believed this was a result of Mother pursuing child support from him. The only indication of Father’s efforts to locate the Children include his unsubstantiated claim that he asked H.M.B’s mother in August 2007, and a mutual friend in September 2007, about the Children’s location.

On May 14, 2008, the Juvenile Office filed a “Petition for Termination of Parental Rights” (“TPR”) as to the Children.

On July 2, 2008, Father was informed by his mother that a notice to the parents for termination of parental rights of the Children was running in the local newspaper. After learning of the notice, Father began making phone calls inquiring about his Children. Father claimed he had not known where his Children were or how to contact them for over a year, since the end of May 2007, when Mother took the Children from him.

On July 8, 2008, Ms. Sickman returned a call to Father and informed him he had abandoned the Children, TPR had been filed, and he would need to hire an attorney or request one from legal aid. Father claimed he did not want his parental rights terminated. Ms. Sickman testified that during the phone call, Father did not inquire into the well-being of his Children, whether he could see them, or what he needed to do to get them back.

Father then hired attorney Nanci R. Wisdom who, on August 22, 2008, filed her entry of appearance on behalf of Father.

On August 28, 2008, Mother executed a “Consent to Termination of Parental Rights and Consent to Adoption” for both Children. On September 3, 2008, the court approved the consents.

On November 13, 2008, Father agreed to a written service agreement with Children’s Division and completed some, but not all tasks required of him under that agreement. Father completed a psychological evaluation with Dr. Evelyn Darrow, but did not follow the recommendations of Dr. Darrow for individual counseling. He completed some urinalysis drug testing, but failed to comply with an October 8, 2008 court order for a hair follicle drug test, until approximately three months later on January 5, 2009. As part of the written service agreement Father provided to Children’s Division a timeline of his whereabouts since 2007. He called the Division of Child Support Enforcement one time to check on a support order and delivered six to ten gift baskets to Children’s Division for the Children. Father attended all meetings requested of him.

Children’s Division referred Father for a visiting assessment with Gary Evans, Ph. D., LCSW. Dr. Evans classified Father in a neglectful parent category and diagnosed him with avoidant personality disorder. Additionally, he testified the prognosis for Father becoming the principal and exclusive care provider for the Children ranged from “uncertain to poor.” On January 24, 2009, Dr. Evans observed a visit between Father and the Children during which time the Children expressed no recognition of Father and no bond with him.

On March 11, 2009, a court order provided for visitation through the Assisted Custody Transition Program (“ACT Program”). In preparation for visitation, Father was also to be evaluated by Deborah McKee, Ph.D. On March 25, 2009, after not hearing from Father to set up a meeting, Dr. McKee’s office called and left Father a message. On April 1, 2009, after Father did not respond, she called again. A meeting was then scheduled for April 6, 2009. Dr. McKee observed no bond between the Children and Father, and noted L.M. demonstrated discomfort in the presence of Father.

Father was married to B.M. on January 14, 1999, but was separated from her beginning in the summer of 2002 until January 1, 2008. Father lived several places between June 2007 and January 2008. After he reunited with B.M. in January 2008, they moved in with her mother and then-long-term plan is to continue residing with her. A Children’s Division caseworker found the condition of that home to be fine. Father contributes to household expenses by supplying food and paying toward utilities. Father has worked in the foodservice industry for the past several years and has a consistent work history.

Father and B.M. have two children. Father has another daughter who lives with her mother, and Father testified he has overnight visits with her approximately two weekends a month. However, B.M. testified that in the year and a half since their reconciliation, R.J.M. had not visited that daughter even though he knew where she was living because he was “incommunicado” with that daughter’s mother. Father pays child support on the other daughter as well. At trial, Father was in arrears approximately $1,000 to $2,000 on the other daughter and was on probation in Newton County for those child support arrears. However, he was making payments and progress in the arrearage.

B.M. had a misdemeanor conviction for possession of marijuana in 2006. Since June 7, 2007, neither Father nor B.M. tested positive for illegal drugs. B.M. tested positive for benzodiazepines, but has a prescription for Xanax. On September 3, 2008, at the first team meeting Father attended, he tested positive for benzodiazepines, but does not have a prescription for that drug. He claimed he took a Xanax prescribed to B.M. to help him sleep.

On August 20, 2009, after hearing over five separate days of evidence, the trial court entered its judgments terminating Father’s parental rights. This appeal followed.

Father contends the trial court erred in terminating Father’s parental rights because the record failed to establish by clear, cogent and convincing evidence that he abandoned, abused or neglected the Children, or that he failed to rectify the situation, or was unfit to be a party to the parent-child relationship, and that the evidence failed to establish by a preponderance of the evidence that termination is in the best interests of the Children. The Juvenile Office contends the evidence established grounds for termination and that it is in the Children’s best interests.

The issues presented for determination are:

1. Did the record demonstrate one or more grounds for termination of the parental rights as set forth in section 211.447.5?
2. Did the totality of circumstances show it was in the Children’s best interests to terminate Father’s parental rights?

Standard of Review

“We defer to the fact-finding of the juvenile court and consider all evidence and reasonable inferences in the light most favorable to the judgment.” In re N.J.S., 276 S.W.3d 397, 400 (Mo.App. E.D.2009). “[T]he standard of proof may be satisfied even though the trial court has contrary evidence before it or evidence in the record might support a different conclusion.” In the Interest of A.K.F., 164 S.W.3d 149, 151 (Mo.App. S.D.2005).

A two-step analysis must be employed to decide whether to terminate parental rights. In re L.M., 212 S.W.3d at 180. First, this Court must determine whether a statutory ground for termination has been proven by “clear, cogent, and convincing evidence.” In the Interest of S.J.H. and C.A.H., 124 S.W.3d 63, 66 (Mo.App. W.D.2004); § 211.447.6. This burden is met when the evidence “instantly tilts the balance in favor of termination when weighed against the evidence presented by the parent whose rights are at issue.” Id. at 66. “We will reverse a trial court’s determination under this step only if it is unsupported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law.” In re L.M., 212 S.W.3d at 180-81.

If the first step is satisfied, the trial court progresses to the second step and determines whether the termination of parental rights is in the best interest of the child. Id. at 181; § 211.447.5. ‘“The best interests prong must be proven by a preponderance of the evidence, and an appellate court reviews that ruling per an abuse of discretion standard.’ ” Id. at 181 (quoting In the Interest of A.Y.M., 154 S.W.3d 412, 414 (Mo.App. S.D.2004)). The trial court’s discretion is abused “ ‘when it is so clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” In the Interest of D.M.B., 178 S.W.3d 683, 690 (Mo.App. S.D.2005) (quoting In re E.D.M., 126 S.W.3d 488, 497 (Mo.App. W.D.2004)).

“The termination of parental rights is an awesome power that involves fundamental liberty interests associated with family and child rearing.” In re L.M., 212 S.W.3d at 181 (citing In re A.M.F. and D.R.F., 140 S.W.3d at 205). Therefore, “we review the record very closely to ensure this awesome power was properly exercised.” Id. at 181.

Analysis

Grounds for Termination of Parental Rights

Father contends the trial court erred in terminating his parental rights because the judgments failed to establish by clear, cogent and convincing evidence Father: (1) abandoned the Children without good cause; (2) abused and neglected the Children; (3) failed to rectify his situation with his Children; and (4) is unfit to be a party to the parent-child relationship. The Juvenile Office contends clear, cogent and convincing evidence established grounds to terminate Father’s parental rights on each ground. “Where the trial court finds multiple grounds for termination, any one of those grounds is sufficient to sustain the judgment.” In re N.R. W., 112 S.W.3d 465, 469 (Mo.App. W.D.2003).

In the first portion of Father’s contention, he argues he did not abandon his Children without good cause as they were involuntarily removed from his custody and he was not informed of where they were located until July 2008. The Juvenile Office contends Father abandoned his Children because he knew the Children’s whereabouts and failed to provide any parental support for over a year. The issue for determination is whether clear, cogent and convincing evidence established Father abandoned his Children pursuant to section 211.447.5(l)(b) when he made no attempt to communicate with them from June 19, 2007 until July 2, 2008 despite knowing their whereabouts.

Section 211.447 sets forth the framework for termination of parental rights including the grounds for termination. Section 211.447.5(1)(b) provides that the court may terminate parental rights when children over one year of age have been abandoned for a period of six months or longer at the time of filing the petition, and that “the parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so.” This Court described “abandonment” as:

[A] voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.

In re Z.L.R., 306 S.W.3d 632, 635 (Mo.App. S.D.2010) (citing In re E.F.B.D., 245 S.W.3d 316, 324 (Mo.App. S.D.2008)). “ ‘This largely presents an issue of intent, which is inferred from the parent’s conduct.’ ” Id. at 635 (quoting In re E.F.B.D., 245 S.W.3d at 324).

A finding of abandonment is not normally compatible with a finding that custody has ended involuntarily. In re N.R.W., 112 S.W.3d at 469. “However, even when a child is involuntarily removed from a parent, the court may conclude that the child has been abandoned when ‘a parent’s lack of involvement goes beyond what is attributable to the estrangement and discouragement caused by the enforced separation.’ ” Id. at 469-70 (quoting In re Z.H. v. G.H., 5 S.W.3d 567, 571 (Mo.App. W.D.1999)).

The record shows Father made no attempts to see his Children or communicate with them from June 19, 2007 until July 2, 2008, despite knowing they were in the State’s care during this time. He also made no attempt to provide financial or other support for the Children during that period. The trial court found “[cjredible evidence was presented that Father was provided with notice of the child[ren]’s placement in foster care.” Furthermore, Father’s testimony denying the July 19, 2007 telephone conversation with Children’s Division and claiming someone impersonated him was found not credible. Father’s attempted justification that he could not provide financial or other support for that extended period because he did not know where his Children were is negated by this finding. This Court defers to the fact finding of the trial court and considers all evidence and reasonable inferences in the light most favorable to the judgment. In re N.J.S., 276 S.W.3d at 400. Father’s willful absence in the Children’s lives, without good cause, for over a year, provides clear, cogent and convincing evidence of Father’s abandonment pursuant to section 211.447.5(l)(b). This evidence instantly tilts the balance in favor of termination when it is weighed against Father’s evidence.

Even if this Court found evidence to support Father’s contention that the Children were involuntarily taken from him when Mother left at the end of May 2007, Father received notification from Children’s Division regarding the whereabouts of his children on June 19, 2007. This notification enabled him to make arrangements to visit or communicate with the Children. However, he chose to make no such arrangements and failed or refused to provide any financial, emotional or physical support to the Children during this time, even though he maintained consistent employment during this period. The trial court specifically considered this date in its finding of abandonment: “Father failed or refused to contact the minor children] or Children’s Division from June 19, 2007 until July 8, 2008.” Father’s intentional withholding of parental support without just cause constitutes abandonment. See In re Z.L.R., 306 S.W.3d at 635. Thus, there was clear, cogent and convincing evidence that established a lack of involvement by Father which transcends any estrangement and discouragement that may have resulted if Mother involuntarily removed the Children from his care. See In re N.R.W., 112 S.W.3d at 469-70.

Furthermore, Father’s limited conduct to reconnect with his Children after July 2008, does not constitute repentance of abandonment. Abandonment can be repented “‘only by the actual or attempted exercise of parental rights and duties following the abandonment.’ ” In re E.F.B.D., 245 S.W.3d at 325 (quoting In re J.W., 11 S.W.3d 699, 705 (Mo.App. W.D.1999)). “However, whether there has been a repentance requires an examination of the parent’s intent, an inferred fact, determined by considering all the evidence of the parent’s conduct.” In the Interest of M.L.K., 804 S.W.2d 398, 403 (Mo.App. W.D.1991). It is well settled that a parent’s post-filing conduct is often given little weight in determining repentance and cannot be the court’s sole factor in finding repentance. See In re J.W., 11 S.W.3d at 706 (“evidence of short-term improvements in a parent’s circumstances which occur after the filing of the termination petition is not necessarily compelling[; ... ] a parent’s post-filing conduct cannot be the sole factor in the court’s determination of repentance”); In the Interest of C.M.D., 18 S.W.3d 556, 563 (Mo.App. W.D.2000) (conduct after petition filed given little weight); In the Interest of M.L.K., 804 S.W.2d at 403 (court may determine parent’s efforts after termination petition were token despite the fact that contrary evidence exists). Here, any appearance of Father’s repentance was after TPR was initiated. The trial court could have considered all of Father’s post-filing actions (hiring an attorney, delivering gift baskets, partial compliance with social service plan, allowing the home of H.M.B.’s mother to be evaluated, and requesting the Children be placed in his custody) and still reasonably conclude there had been no repentance of the Children’s abandonment. More significantly, Father’s history with the Children demonstrates extended periods of no communication and a serious lack of commitment to the Children.

The evidence that was adduced instantly tilts the balance in favor of termination when weighed against the evidence presented by Father and demonstrates Father abandoned the Children.

Because our review directs us to affirm the trial court’s judgments if the evidence supports any one of multiple grounds for termination, we need not address whether the record demonstrated Father abused and neglected the Children, failed to rectify the situation, or demonstrated he was unfit to be a party to the parent-child relationship. See In re N.R. W., 112 S.W.3d at 469. The record demonstrated abandonment, which is one of the grounds for termination of parental rights as set forth in section 211.447.5. Father’s first point is denied.

Best Interest Determination

Father contends the preponderance of evidence did not support finding the termination of parental rights was in the Children’s best interests in that Father is capable of caring for the Children and has made great efforts to have contact with his Children. The Juvenile Office contends there was no abuse of discretion because Father has demonstrated a lack of commitment to the Children and financial and emotional instability. Here, the issue is whether the totality of circumstances show it was in the Children’s best interests to terminate Father’s parental rights.

As stated above, after determining one or more of the statutory grounds for termination have been proven, the trial court must make a best interest determination. The best interest prong must be proven by a preponderance of the evidence, and the appellate court reviews that ruling for abuse of discretion. In re L.M., 212 S.W.3d at 181. The trial court’s discretion is abused “ ‘when it is so clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” In the Interest of DM.B., 178 S.W.3d 683, 690 (Mo.App. S.D.2005) (quoting In re E.D.M., 126 S.W.3d 488, 497 (Mo.App. W.D.2004)).

Section 211.447.7 sets forth the factors for the court to evaluate and consider in deciding a child’s best interest:

(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent’s disinterest in or lack of commitment to the child;
(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

Determining the child’s best interest is a subjective assessment based on the totality of the circumstances. In the Interest of C.A.M., 282 S.W.3d 398, 409 (Mo.App. S.D.2009).

Here, the trial court considered each factor under section 211.447.7, and we conclude the trial court’s findings are supported by the record.

In considering the first factor, the trial court’s finding that the Children do not have any significant attachment to Father was established in the record, specifically the testimonies of Dr. Evans and Dr. McKee. Neither observed any bond between Children and Father.

The finding as to the second factor that Father has not maintained regular visitation or other contact with the Children was also supported by the record. Father made no effort to see the Children between June 2007 and July 2008. Even after he was granted court-ordered contact with the Children, he did not take full advantage of the opportunity to visit his Children and reestablish a connection. Dr. McKee had to make multiple calls to set up a visitation appointment.

Regarding factor three, the trial court noted Father failed to make any payments to offset the cost of care and maintenance of the Children even though he was consistently employed. The fact that he was awaiting an order for child support payment for the Children does not change the fact he failed to meet their daily needs for over a year. A parent is obligated to provide support even in the absence of demand for payment. In re K.T.K. v. Crawford County Juvenile Office, 229 S.W.3d 196, 202-03 (Mo.App. S.D.2007).

Next, the trial court evaluated factor four and concluded additional services would not likely bring about lasting parental adjustment enabling a return of the Children to Father within an ascertainable period of time. This is also supported by the record, specifically the “uncertain to poor” prognosis for Father being able to be the principal care provider. Additional support for this conclusion is the fact that when his Children came into care, they were undisciplined, wild, and aggressive toward each other, suggesting a failure to parent. The record indicates after receiving appropriate structure and parenting from their foster parent, the children are well-behaved, respectful of other’s personal boundaries, able to articulate their needs and desires and are “smiling children who love to play.”

Key to the trial court’s decision was the finding of factor five — -Father’s disinterest in or lack of commitment to the Children. The trial court elaborated on the subjective and objective evidence in support of this factor and concluded Father “has no interest in raising these children.” Significantly, Father knew his Children were in Children’s Division custody for over a year and did nothing. Additionally, Father’s failure to maximize contact with his Children during his participation in the ACT Program reflects his non-desire to be a parent.

In evaluating factor six, the trial court noted Father had no felony convictions that would deprive the Children of a stable home.

Finally, in regard to factor seven, evidence demonstrated deliberate acts of Father subjecting the Children to substantial risk of physical or mental harm, including leaving the Children alone in the home while smoking marijuana and failing to contact them or provide any support for over a year. The record supports the trial court’s finding as to this factor.

The limited conduct Father asserts to support his contention (delivering gift baskets, compliance with a social service plan, acting appropriately during visitation) are generally token gestures that do not demonstrate a strong desire to be a parent, nor do they offset the continued pattern of abuse and neglect. Section 211.447.8 makes clear the trial court “may attach little or no weight to infrequent visitations, communications, or contributions.” See also In re C.A.M., 282 S.W.3d at 409. We agree with the trial court’s emphatic finding that Father’s conduct is not indicative of someone who wants to be a “Dad.” The continuation of this parent-child relationship will deprive the Children of an opportunity for a stable and permanent home.

In viewing the totality of circumstances, there is a sufficient record for the trial court to conclude by a preponderance of the evidence that it was in the Children’s best interests to terminate Father’s parental rights. There is no showing the trial court’s finding is against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. Father’s second point is denied. There is no showing the trial court’s judgments are unsupported by substantial evidence, against the weight of the evidence, or erroneously declare or applies the law. The judgments of the trial court are affirmed.

SCOTT, C.J., and RAHMEYER, P.J., concur.

      . The individual cases for each child were consolidated for this appeal. A petition was filed on behalf of each child and a separate judgment was entered with respect to each child.

      . All references to statutes are to RSMo Cum. Supp. (2008), unless otherwise indicated.

      . The trial court’s judgments cite section 211.447.5(2)(a), which addresses a mental condition interfering with child care; however, it is clear from the trial court's analysis that it intended to cite section 211.447.5(l)(b) because Father’s mental condition was not a basis for termination of his parental rights. Father does not challenge this erroneous citation and the parties’ briefs refer to section 211.447.5(l)(b).


source: Caselaw Access Project

author: GARY W. LYNCH, Presiding Judge.

license: Public Domain

text:
    In the ESTATE OF Charles Michael HOCK, Deceased Susan Hanson, Petitioner-Respondent, v. Randy Dale Vanniewaal, Respondent-Appellant.
    No. SD 30100.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 20, 2010.

      Richard L. Schnake, Neale & Newman, L.L.P., Springfield, MO, for Appellant.
    John Cowherd, Mount Vernon, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Randy Dale VanNiewaal appeals the judgment of the Circuit Court of Barry County in favor of the estate of Charles Michael Hock, upon its finding that Randy exerted undue influence to derive a benefit from Charles. Finding no trial court error, we affirm.

Procedural Background

Charles died testate on July 1, 2007, at his home in Barry County at the age of sixty-four. He was survived by three daughters: Susan Hanson, who resided in California, and Julia Hock and Emily Hock, both of Chicago, Illinois. Pursuant to a will Charles executed two days before he die d, Charles’s three daughters and Randy were named to share in the estate equally. Randy was appointed personal representative of the estate.

On August 27, 2007, Randy filed a claim against Charles’s estate, requesting reimbursement in the amount of $8,277.84, which Randy claimed he paid for Charles’s funeral expenses. In October 2007, Susan brought the underlying action for discovery of assets against Randy, in accordance with section 473.840, alleging certain assets should be included in Charles’s estate, but were unlawfully obtained by Randy “by fraud and/or undue influence or at a time when [Charles] did [not] have sufficient mental capacity” to give said property to Randy. In part, Susan alleged that proceeds from two bank accounts owned by Charles were assets of the estate and had been adversely withheld or claimed by Randy.

In its judgment, the trial court found that Randy’s exercise of undue influence caused certain bank accounts to be created in the joint names of Charles and Randy and further caused the balance of funds from Charles’s individual account to be paid over to Randy and deposited into Randy’s individual account and later spent. The trial court entered judgment in favor of the estate and against Randy in the amount of $46,265.52. The trial court also denied Randy’s claim for reimbursement of Charles’s funeral expenses because it found that the funds Randy used to pay this expense came from from one of the bank accounts that actually belonged to the estate.

Randy timely appealed.

Factual Background

After on-the-job knee and back injuries forced his retirement as a firefighter in Chicago around 1995, Charles moved to the Eagle Rock area, where he purchased a home situated on several acres of lakefront property. Charles’s three daughters visited during vacations and around holidays. Charles and his daughters called one another frequently.

Charles became friendly with Randy and his wife, Earleen, following the funeral of Charles’s sister some time around 2000. Earleen was Charles’s niece. At first, Randy and Earleen, who were from Iowa, would come to visit in the summer and stay about a week. Nearby his residence, Charles had a cabin or guest house where Randy and Earleen often stayed during their visits. Charles told his daughter Julia that Randy was his plumber, a guy who worked for him, and that once in a while during the summer Randy would come and do odd jobs around the house and fix the plumbing. Julia met Randy about two and a half years before her father’s death. After January 2007, Julia often heard from her father that Randy was there for a visit, and Randy’s visits became more frequent in the last few months of her father’s life.

At the time of his death, Charles was the owner of a checking account and a money market account at Commerce Bank in Eagle Rock. The checking account was owned jointly by Charles and his close friend and caregiver, Cathryn Walker. Walker assisted Charles with paying his bills and signed Charles’s personal checks after Charles sustained serious injuries and lost the use of his right hand following a fall and a lengthy hospitalization in February 2002. Walker continued to help Charles with payment of his bills until his death. On the date Charles die d, the checking account had a balance of approximately $9,400.00.

Two days following Charles’s funeral, Randy contacted Walker and asked her for the funds in Charles’s checking account. Randy told her he was going to pay Charles’s bills and would open an account for Charles’s daughters with what was left. Walker gave him a signed check, which he made payable in the amount of $9,400.00, leaving a balance of $135.58 in the checking account. Randy deposited $9,400.00 into an individual bank account in his name only on July 6, 2007. On December 10, 2007, Randy withdrew $5,500.00 from this account. Later, on January 6, 2008, Randy withdrew another $400.00. No account was established for the benefit or in the names of Charles’s daughters.

The money market account was established on January 19, 2007, after Charles, transported and accompanied by Randy, visited his bank, closed a savings account he had co-owned with Walker, and deposited the funds from that account into the new account, naming Randy as co-owner. On the date of Charles’s death, the balance in the money market account was approximately $48,648.36. On July 2, 2007, the day after Charles died, Randy withdrew $25,000.00 from this money market account. The next day, Randy withdrew $10,000.00. An additional $5,356.52 was withdrawn from the account by Randy on July 31, 2007. On August 1, 2007, a check for $8,277.84 made payable to Fohn Funeral Home was presented for payment from the money market account. Randy testified this was payment for Charles’s funeral expenses. As of August 23, 2007, the remaining balance in the account was $15.24.

Additional facts will be set forth hereafter as necessary to discuss Randy’s first point.

Standard of Review

Upon review of the judgment in a discovery of assets proceeding, the judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Estate of Herbert v. Herbert, 152 S.W.3d 340, 344 (Mo.App.2004). Where there has been no request for findings and conclusions, it is presumed that the trial court’s findings are in accordance with the judgment entered, and the judgment will be affirmed under any reasonable theory supported by the evidence. Id.

Discussion

In his first point, Randy claims that the trial court’s finding that the creation of his co-ownership in the money market account was the result of his undue influence upon Charles is not supported by substantial evidence, in that, first, the testimony of the bank representative who assisted Charles on January 19, 2007, in opening the money market account, “established that [Charles] acted on his own, was not under [Randy’s] influence, and understood the consequences of his action in re-titling the money market account [.] ” Second, Randy further challenges the trial court’s finding of undue influence, asserting that Charles’s “actions were consistent with his testamentary intent” and that “neither [Randy’s] closeness to [Charles] nor his presence during the banking transaction supports a finding of undue influence.”

“Undue influence itself is usually defined as ‘such overpersuasion, coercion, force, or deception as breaks the will power of the testator or grantor and puts in its stead the will of another.’ ” Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo.App.1991) (quoting Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59, 67 (Mo.1943)). “Also, in determining whether there is evidence of undue influence, the court does not have to find the testator or grantor to be of unsound mind, ... therefore, one may be unduly influenced while still mentally competent.” Id. (internal citations omitted).

A determination of whether undue influence was exercised requires a case-by-case analysis. In the Estate of Gross, 840 S.W.2d 253, 257 (Mo.App.1992). “ ‘The cases recognize that undue influence is seldom susceptible of direct proof and that generally it must be deduced from the circumstances of the particular case.’ ” Landers v. Sgouros, 224 S.W.3d 651, 660 (Mo.App.2007) (quoting Reeves v. Boone, 591 S.W.2d 118, 121 (Mo.App.1979)). “Undue influence is not proclaimed from the housetop and direct proof is difficult, if not impossible, to obtain.” Dobbins v. Hupp, 562 S.W.2d 736, 741 (Mo.App.1978). “ ‘Persons exerting undue influence will do so in as subtle, furtive, indirect and elusive a manner as possible and such influence may therefore be shown indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved.’ ” Duerbusch v. Karas, 267 S.W.3d 700, 708 (Mo.App.2008) (quoting Estate of Gross, 840 S.W.2d at 257). “It is impossible to set forth a rigid formula of what facts must be established to make a submissible case of undue influence by circumstantial evidence.” Id.

Nevertheless, “[a] presumption of undue influence arises in discovery of assets cases where substantial evidence shows (1) a confidential and fiduciary relationship; (2) benefaction to the fiduciary; and (3) some additional evidence from which undue influence may be inferred.” Estate of Gross, 840 S.W.2d at 257. Once established, the presumption makes a pri-ma facie case of undue influence, effectively shifting the burden to the fiduciary to rebut. Id.

In his first point, Randy does not challenge the evidentiary basis supporting that he had a fiduciary and confidential relationship with Charles or that he received a benefit from Charles — the first two prongs supporting the presumption of undue influence. Rather, Randy solely challenges the evidentiary support for the third prong of the undue influence presumption — the existence of some additional evidence from which undue influence may be inferred — as related to Charles’s titling of the money market account and the funds deposited in that account by Charles to include Randy as co-owner. In support of this challenge, Randy limits his argument to three specific areas of evidence presented at trial. By so limiting his argument, Randy has failed to demonstrate that the trial court’s finding of undue influence is not supported by substantial evidence.

Randy fails to demonstrate that the trial court’s judgment is not supported by substantial evidence

Randy’s argument first focuses upon the testimony of bank employee April Beaulieu who assisted Charles when the money market account was created. In her testimony, Beaulieu recalled the transaction on January 19, 2007. She remembered that Charles “seemed to be clear in his mind” and “in good mental condition” and although he appeared frail and elderly, she did not consider his mental state or his mental capabilities frail. Charles introduced Randy to Beaulieu and stated that he wanted Randy on his account. She recalled obtaining the necessary information from Randy but had no further conversation with him. Beaulieu further testified that Charles did not seem to be under Randy’s influence. When asked about her impression of Charles’s “mental functioning,” Beaulieu stated, “To me, he always seemed straightforward, and ... he seemed to be on track with what he was thinking and saying to me.” Beaulieu believed that Charles understood the consequences of his decision to include Randy on the account. When asked if she knew how the decision was made to establish a joint account as opposed to a “P.O.D.,” Beaulieu testified, “I think it was probably predetermined before they came in.”

Next, Randy’s argument relies upon the testimony and actions of attorney Don Cupps. According to Cupps, six to eight months before Charles died, Charles met with him to discuss drafting a new will or estate plan. At that time, Charles contemplated leaving half of his real estate to Randy and half of his real estate to Susan, “and ... everything else to Susan.” If Charles had wanted to execute a will that day, Cupps would have felt comfortable witnessing it for him. Two days before Charles died, Cupps witnessed the execution of Charles’s will, swearing that Charles “signed and executed the instrument as his Last Will, and that he had willingly signed, and that he executed it as his free and voluntary act for the purposes therein expressed.” Randy argues that Charles’s action in adding Randy’s name to the money market account was consistent with his estate plan as Charles had related it to Cupps and was not the result of undue influence on Randy’s part.

Finally, Randy argues that “[t]he fact that two people have a close relationship, and the fact that one is present when the other does a banking transaction, does not mean that the one unduly influences the other.”

By addressing only these three specific areas of the evidence, Randy has completely failed to demonstrate that the trial court’s finding of undue influence was not supported by substantial evidence.

A not-supported-by-substantial-evidence challenge requires completion of three sequential steps:
(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of that proposition; and,
(3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.

Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App. S.D.2010).

Here, rather than identifying evidence favorable to the trial court’s finding, Randy has identified contrary evidence that is favorable to his position. Likewise, rather than demonstrating how the evidence favorable to the trial court’s finding of undue influence does not have probative force, Randy has attempted to demonstrate why his identified contrary evidence supports a judgment in his favor. Neither of Randy’s actions fulfills the second and third steps necessary to demonstrate that the trial court’s finding of undue influence is not supported by substantial evidence. In order to prevent us from becoming an advocate for Randy by supplying these missing steps ourselves, their omission requires that his point be denied. Id. We have, nevertheless, conducted an ex gratia review of the record and determined that the trial court’s finding of undue influence is supported by substantial evidence.

The trial court’s ftnding of undue influence is supported by substantial evidence

“A circumstantial case of undue influence is not made by establishing any one factor.” Ruestman v. Ruestman, 111 S.W.3d 464, 479 (Mo.App.2003). To establish an inference of undue influence, it is not necessary to show that Randy exerted his influence over Charles at the exact moment of the transaction. See Landers, 224 S.W.3d at 661; Robertson v. Robertson, 15 S.W.3d 407, 413 (Mo.App.2000); Estate of Gross, 840 S.W.2d at 258. “What is required is proof of facts from which an inference can arise that the undue influence was an active factor in the transaction.” Bolin v. Anders, 559 S.W.2d 235, 241 (Mo.App.1977).

Evidence demonstrating that a “fiduciary actively procured a transfer to a personal benefit” may establish an inference of undue influence. In re Estate of Stanley, 655 S.W.2d 88, 90-91 (Mo.App.1983). “[A]ctive procurement will be inferred” where there is evidence that the fiduciary had some power to influence the grantor, where the opportunity to do so is present, and where the disposition of the property was a changed course of action or a departure from the estate plan. Estate of Gross, 840 S.W.2d at 258.

Evidence of the grantor’s mental and physical condition is “ ‘highly material’ on the issue of undue influence [,] ” Robertson, 15 S.W.3d at 413, and relevant to prove the grantor’s “ ‘susceptibility to the persuasion of undue influence.’ ” Landers, 224 S.W.3d at 661-62 (quoting Bolin, 559 S.W.2d at 241).

Charles primarily lived by himself, but following his fall in 2002, in addition to needing help writing, he required assistance with housework, visits to the doctor, grocery shopping, cooking, and he often required a cane to walk. Cathryn Walker assisted Charles with financial matters and cared for Charles on a daily basis following his fall. Charles’s physical condition gradually deteriorated, and he increasingly relied on a wheelchair for mobility and special equipment to enable him to bathe. He had fractured some ribs in 2004 and fractured a hip in June 2005, and experienced chronic back pain. In his last few years, he suffered from syncope, anemia, COPD, congestive heart failure, and had several small strokes. He received assistance and therapy from home health care providers.

There was considerable evidence that Charles’s physical and mental condition deteriorated significantly in the last year of his life. Walker testified that she discontinued daily visits to Charles some nine months prior to his death after she noticed changes in Charles’s behavior that were out of character for him. She continued to visit him once a week to check on him and helped him pay his bills once a month. She stated that Charles had become nasty and argumentative; he was forgetful and did not remember things he said or did. Walker also noted deterioration in his physical condition and believed that Charles no longer ate like he should have and drank more. Julia testified that she had constant contact with Charles in the year preceding his death and also noticed that Charles had become weak and frail and needed a lot of help getting around the house. She also noted that he was quite forgetful and was easily frustrated and agitated. Randy, too, testified that in his last six months, Charles was often in pain, could not walk very well, and sometimes needed a wheelchair and a cane.

By all accounts, Charles was a heavy drinker. Medical records report a diagnosis of alcoholism. Walker testified that Charles often drank to excess, he was intoxicated on a daily basis, and he would frequently call Randy when he got drunk. Julia also testified that her father had a long-standing problem with alcohol, that he suffered from alcohol abuse, and that he had trouble remembering things, which she attributed, in part, to his drinking. Julia further testified that in the last year, Charles was very easily influenced by alcohol and was “very dependent on it in the end.” She noted that if someone would give him a beer or some vodka, he would do whatever they wanted. Randy, too, described Charles as a heavy drinker and stated that Charles had required air transport to the hospital a few times as a result of his drinking binges. Randy considered Charles to be an alcoholic. Nevertheless, Randy and Charles drank together every day when Randy would visit.

Randy testified that Charles knew his health was failing and said that because of his problem with alcohol, his family had in the past threatened “to put him in a home and get him dried out [.]” When Charles discussed appointing Randy as his attorney-in-fact, Charles directed Randy that he did not “want to be stuck in a home [,] D” and Randy promised Charles that he would not allow it. Charles appointed Randy his attorney-in-fact when he executed a power of attorney in January 2006. Julia testified she never knew that Charles had named Randy attorney-in-fact.

Charles’s niece, Sharon Hurley, who had helped with cleaning Charles’s house after he moved to the area, testified that she kept in close contact with Charles following his fall in 2002, calling him daily and visiting once a week. However, in the eighteen months preceding Charles’s death, when Randy and Earleen were frequent guests of her uncle, Sharon began to have trouble contacting Charles, and eventually she began to feel like she had been cut off from contact with him. She stated that initially Randy or Earleen would answer the telephone when she called and make some excuse as to why she could not talk to Charles. After a while, the answering machine was disconnected so that when she called, she could no longer leave him a message. When she did go to the house, she was met by Randy or Earleen, who told her that Charles was sleeping, and she was not allowed inside. When she became concerned about the frequent partying going on when Randy and Earleen visited Charles, Sharon contacted authorities to request a “well-being check” on her uncle. During the last six months of his life, Sharon ceased trying to visit Charles because she could not get in to see him. The last time she saw her uncle alive, he was with Randy and Earleen at a local pub at 11:00 a.m. on a Sunday morning, seated at a table filled with beer bottles, and he was intoxicated.

Another factor bearing upon the trial court’s finding of undue influence is evidence that indicates a changed course of action, Duerbusch, 267 S.W.3d at 709, or an unnatural disposition of one’s estate, Landers, 224 S.W.3d at 662, sufficient to establish active procurement. A finding of an “unnatural disposition of property” may be based on evidence of a transfer of property without apparent reason, to non-blood heirs [,] excluding the natural objects of one’s bounty. Ruestman, 111 S.W.3d at 481.

As previously noted, by viewing the evidence and the inferences drawn therefrom in the light most favorable to his position, Randy contends that Charles “acted consistently with what he told his attorney, Don Cupps, that he wanted to do with his estate plan [,] ” which, as Randy interprets for us, would have been “leaving half of his real estate to Randy and half to Susan, and everything else to Susan.” However, from the record before us, Charles made his intentions regarding the disposition of his estate known to others, who testified to the contrary. Here, there was substantial evidence from which the trial court could find a changed course of action from Charles’s previously stated estate plan.

There was evidence in the record that Charles had executed a beneficiary deed, dated July 21, 2003, transferring his interest in his lakefront real property, a house, and a cabin to his daughter, Susan, upon his death. Julia Hock testified that the real property indeed passed to Susan and that Susan was in the process of including the two other daughters in the deed, as her father had instructed.

In a will Charles executed July 21, 2003, revoked upon execution of the subsequent will two days before he die d, he appointed his daughter, Susan, as personal representative and named her as sole heir. Julia testified that before January 2007, Charles told her that he named Susan executor of his estate and that everything was to be divided three ways.

When Charles discussed his estate plan with Julia in April 2007, he told her he would make Randy personal representative, and Randy would make sure that everything would be left to the three daughters and would be divided three ways. She did not become aware Charles had named Randy as attorney-in-fact or established a money market account in his and Randy’s names until after her father’s death.

On June 29, 2007, two days prior to his death, Charles executed a last will and testament, revoking the previous 2003 will. The attorney who prepared the new will, Don Cupps, testified that Randy either called or stopped by his office in late June 2007, “needing the Power of Attorney because [Charles] was in bad shape [,] ” and inquired whether Charles “got everything ... done that he needs to ... have done.” At that time, Cupps pulled Charles’s file and found notes indicating that Charles had not completed a contemplated revision to his estate plan that Charles discussed in a previous appointment. Cupps told Randy that Charles “had never come back.” Cupps thereafter visited Charles at his home two days prior to Charles’s death, and a new will was executed. In the new will, Charles appointed Randy as personal representative of his estate, named his three daughters and Randy as heirs, and divided his estate into four equal shares between his three daughters and Randy. Randy was present during the execution of the new will.

Cathryn Walker described Charles as a “tightwad,” and “very tight,” who was not the type who would give his property away. She also testified that up until January 2007, Charles directed her that his money “was to go to his girls.” She further testified that Charles told her that she was to set up a fund for his three daughters with the balance left in his savings account, which was later closed and the funds transferred to the money market account. After Charles opened the money market account and named Randy as co-owner in January 2007, Charles told Walker that Randy was going to “look over the money” and that she was to sign what was necessary, and they would open an account for the benefit of the girls. Randy was to see to it that they got the money when they needed it; Charles did not want them to blow the money. However, no such account was established, and Charles’s daughters never received any portion of the funds in the account. Randy had dissipated the money he withdrew from market account by the time of trial. He claimed he bought a four-wheelér, went fishing and hunting, and spent some of the money gambling.

“In a discovery of assets case, the court must determine the nature, value and extent of the property adversely held by defendant, as well as the persons who have an interest in the property.” Estate of Gross, 840 S.W.2d at 260. “In identifying the property adversely held, the court may determine defendant’s handling and transferring of the property to be relevant, whether or not such activity occurred before, during or after the alleged undue influence.” Id. Here, certain actions by Randy following Charles’s death may be viewed as inconsistent with Randy’s contention that Charles intended that he receive the funds from the money market account.

Just after Charles die d, Randy asked Cathryn Walker to sign a check over to him from Charles’s checking account so he could pay the house payment and utility bill. He told Walker he was going to open an account for Charles’s daughters with what remained. Walker told Randy that “that’s what I was supposed to do and he said he’d take care of it.” Walker signed a blank check, and Randy made the check payable to himself in the amount of $9,400.00 two days after Charles’s funeral. No account was ever established for the benefit of Charles’s daughters. Randy testified that Charles probably did not mean for Randy to have the funds from the checking account and that he asked Walker for that money because he was named personal representative.

Julia testified that she arrived at her father’s house the day following his death to discover Randy and others in the midst of a party, drinking beer and playing music. They indicated that they did not know she would be arriving so soon. When she noticed that her father’s truck was gone, she asked Randy about the truck, and he told her Charles had sold it. She disputed his explanation and told him that someone else had told her that the truck was there that morning. Randy then told her that he had loaned the truck to someone to move furniture. The truck was returned two days later and only after Julia threatened to call the police.

Randy, who continued to stay in the cabin over the week following Charles’s death, had allowed two other men to stay in Charles’s house but would not ask them to leave when Julia and her family arrived. Julia and her family checked into a hotel because they could not stay at the house with the drinking and smoking occurring there; her daughter is asthmatic and her mother had undergone a heart transplant. When Randy and Earleen left, Randy never returned the only key to the cabin. In November 2007, Julia discovered that everything had been removed from the cabin, including light switch covers and light bulbs.

When Julia inquired regarding Charles’s bank accounts, Randy told her he had it all under control, not to worry about it, and he would talk to her about it when he was ready. After that conversation, however, Randy refused to talk to Julia about the bank accounts, and she never saw any money from her father’s accounts. Initially, Randy, who had possession of the will executed two days before Charles’s death, refused to show Julia the will until her mother “had words with” Randy.

Randy testified that he did not pay for Charles’s funeral out of the funds remaining in Charles’s checking account because “[t]here wasn’t enough money for that.” Randy submitted a claim to the estate for reimbursement of Charles’s funeral expenses in the amount of $8,277.84. There was testimony that the balance in Charles’s checking account at that time was at least $9,400.00.

Randy withdrew $25,000.00 from the money market account on July 2, 2007, one day following Charles’s death. While Randy testified that he did not withdraw any money until after he “went and saw Mr. Cupps [,] ” who suggested he “go get it [,] ” the evidence was that Randy did not see Cupps until July 8 at 2:30 p.m. Cupps’s file notes indicated that on that date, when he called Commerce Bank to ascertain the balance in the account, at the time he called, the balance had already been reduced to $23,000.00. Randy withdrew another $10,000.00 from the account on July 3, 2007.

As previously noted, Randy contends that his friendship with Charles and his presence at the time Charles converted his savings account to a money market account co-owned with Randy does not support a finding of undue influence. Randy cites two cases, Dickinson v. Dickinson, 87 S.W.3d 438 (Mo.App.2002), and In re Estate of Davis, 954 S.W.2d 374 (Mo.App.1997), to support this claim. Both cases held that a beneficiary’s mere involvement and presence during the transaction did not support a finding of undue influence unless the beneficiary had a coercive influence greater than that of a regular family relationship. Dickinson, 87 S.W.3d at 443; Estate of Davis, 954 S.W.2d at 379-80. However, “ ‘[fjactual situations are subject to such a myriad of variations that any one case is of limited precedential value.’ ” Duerbusch, 267 S.W.3d at 708 (quoting Estate of Gross, 840 S.W.2d at 257). Here, there was additional substantial evidence of the history and circumstances of Randy’s non-familial relationship and involvement with Charles that gave rise to an inference of undue influence aside from Randy’s involvement and presence during the transaction creating the money market bank account.

“ ‘Courts have adopted a liberal attitude regarding the quantum of evidence necessary to establish that the fiduciary was actively concerned in some way which caused or contributed to cause the execution of the instrument.’ ” Godsy v. Godsy, 504 S.W.2d 209, 213 (Mo.App.1973) (quoting Pasternak v. Mashak, 392 S.W.2d 631, 637 (Mo.App.1965)). The instrument in this case was the account document naming Randy as co-owner of the money market account. Here, there was evidence that Charles was a known alcoholic, that he would do whatever anyone wanted him to do in exchange for more alcohol, and that while they were together, rather than discouraging Charles from drinking, Randy appeared to condone and encourage his drinking. Charles’s alcoholism and Randy’s encouragement of that disease alone is sufficient to raise a reasonable inference that Charles was vulnerable to influence exercised by Randy.

There was further evidence of Charles’s testamentary intent that his money was to be left to his daughters with Randy managing the funds for their benefit. Randy’s actions following Charles’s death, including: Randy’s refusal to discuss the disposition of Charles’s money market account with Julia; the disappearance of items of Charles’s personal property, particularly the disappearance and reappearance of the pickup truck that Randy told Julia Charles had sold; Randy’s representation to Cathryn Walker that he would pay the bills and establish an account for Charles’s daughters with the remaining balance in Charles’s checking account, which never occurred; and the inconsistencies in Randy’s chronology of when he was advised to remove funds from the money market account are “indicia of undue influence under the developed law as to the quantum of evidence required to show active procurement of the property by the fiduciary.” See Estate of Stanley, 655 S.W.2d at 91.

“The trial court is free to believe none, part, or all of any witness’s testimony.” Cordes v. Williams, 201 S.W.3d 122, 133 (Mo.App.2006). “The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it.” In re Estate of Dawes, 891 S.W.2d 510, 523 (Mo.App.1994). Although evidence contrary to the trial court’s findings may have been presented, the trial court judges the credibility of the witnesses before it, and the facts are reviewed in the light most favorable to the judgment. Id. Having reviewed the evidence in that light, we determine that the trial court’s finding that Randy obtained the benefit of the money market account by exerting undue influence upon Charles is supported by substantial evidence. Randy’s first point is denied.

Randy’s claim for funeral expenses is moot

Randy’s second point relates to his claim against Charles’s estate in the amount of $8,277.84, seeking reimbursement of monies he purportedly advanced to pay for Charles’s funeral expenses. The trial court ordered Randy’s claim against the estate for reimbursement of Charles’s funeral expenses “satisfied as a result of the payment of said sum from funds that now have been decided to be the assets of said estate [.] ”

In his point, Randy contends that the trial court erred in denying his claim for reimbursement for Charles’s funeral expenses because the claim was timely filed and because Randy paid the expenses out of his own money. Randy argues, “The trial court’s denial of [Randy’s] claim against [Charles’s] estate for reimbursement of ... the funeral expenses rests squarely on its erroneous conclusion that undue influence tainted the re-titling of the money market account. Because that con-elusion was wrong, the denial of the claim was likewise error.”

Our determination that the trial court’s finding of undue influence was not erroneous in the discussion of Randy’s first point renders his second point moot. It is denied.

Decision

The trial court’s judgment is affirmed.

SCOTT, C.J., and FRANCIS, J., concur.

      . Because some family members bear the same last names, we use first names for clarity. No familiarity or disrespect is intended. Randy was married to Charles' niece, Ear-leen, who was originally named as a co-defendant in the underlying action. The trial court entered judgment on the petition in Earleen’s favor. That judgment has not been appealed.

      . References to section 473.340 are to RSMo 2000.

      . According to Julia, Charles’s knees were injured when he fell through a collapsing floor while saving the lives of a father and son from a fire.

      . A not-supported-by-the-evidence challenge to the trial court's undue influence finding required that Randy demonstrate to this Court why the evidence in the reminder of this opinion, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the finding of undue influence such that the trial court could not have reasonably decided that Randy exerted undue influence upon Charles to procure co-ownership of the money market account. See Houston, 317 S.W.3d at 187. Randy does not address this evidence in his point relied on or in his argument.


author: DANIEL E. SCOTT, Chief Judge.

text:
    Duncan and Robin CRAYCROFT, Respondents, v. Lynn and Betty CARLTON, husband and wife, and Lynn Carlton, as Trustee of the Revocable Trust Agreement of Lynn N. Carlton, Appellants.
    No. SD 30224.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 23, 2010.

      Brett W. Roubal, Baird, Lighter, Millsap & Harpool, Springfield, for Appellants.
    John 0. Newman, Newman Law Firm, Springfield, for Respondents.
   DANIEL E. SCOTT, Chief Judge.

This appeal challenges the sufficiency of evidence to support a $22,564.37 bench-tried judgment for negligent misrepresentation. We thus assume as true the evidence and inferences favoring the result and ignore contradictory evidence. Artilla Cove Resort, Inc. v. Hartley, 72 S.W.3d 291, 293 (Mo.App.2002).

Facts and Background

Dr. and Mrs. Lynn Carlton (Sellers) owned and lived in their Catalina Circle home from 1976 to 2004, during which time their basement suffered at least three water intrusions. A 1977 problem was traced to improperly installed drainage tiles, which Sellers repaired. An exterior pipe broke in 1980 or 1981, causing water to leak through the foundation and Sellers to replace the carpet. In July 2000, water entered through a seam between the foundation and a basement wall. Sellers had the seam caulked, dried the carpet, and replaced the pad.

Sellers knew their neighborhood’s history of drainage and flooding problems, which were not eliminated by a culvert built during the 1980s. Neighbors testified that Dr. Carlton knew that both of his next-door neighbors’ basements flooded, and one recalled Dr. Carlton complaining that, “We’re — we’ve been flooded again.”

Sellers listed the home for sale in 2004, omitting most of the above from their disclosure statement, and answering these specific questions as follows:

Do you know of any past or present drainage or flood problems affecting the property or immediately adjacent properties? No
Does the property have a sump pump? No
Has there ever been any water leakage, seepage, accumulation, or dampness within the basement or crawlspace? Yes If “Yes,” describe in detail: J years ago moisture seeped intojz of basement, none since
Have there been any repairs or other attempts to control any water or dampness problem in the basement or crawlspace? Yes
If Wes,” describe the location, extent, date, and name of the person who did the repair or control effort: Caulked around junction between basement wall & floor

Robin and Duncan Craycroft (Buyers) walked through the home several times before they bought it. They saw no signs of basement moisture, nor did their home inspector. Within days after Buyers moved in, the basement flooded during a rain. Standing water covered the whole floor, damaging or destroying Buyers’ belongings. There was a second flood within days, and others in following years. Buyers repeatedly incurred clean-up expenses, and ultimately hired a contractor to install drainage tiles and sump pumps to solve the problem.

Buyers sued Sellers on several theories, including negligent and fraudulent misrepresentation. Sellers admitted some of their non-disclosures at trial. Mrs. Carlton suggested that these were oversights, but Dr. Carlton testified that Sellers were following their realtor’s advice. The trial court found for Buyers on their negligent misrepresentation claim, awarded damages of $22,564.37, and denied all other relief.

Principles of Review

The elements of a negligent misrepresentation claim are: (1) the speaker supplied information in the course of his business; (2) due to the speaker’s failure to exercise reasonable care, the information was false; (3) the speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction; (4) the listener justifiably relied on the information; and (5) as a result of such reliance, the listener suffered pecuniary loss. Allen Quarries, Inc. v. Auge, 244 S.W.3d 781, 785 n. 2 (Mo.App.2008).

Sellers contend that there was insufficient evidence of elements # 2 (Point I) or # 4 and # 5 (Point II). In assessing these claims, we accept all evidence and permissible inferences consistent with the judgment; disregard contrary evidence; defer to the trial court’s ability to judge witness credibility; refuse to reweigh the evidence; and must affirm the judgment unless no substantial evidence supports it. See Artilla Cove Resort, 72 S.W.3d at 293.

Point I

Sellers’ claim that no evidence supports element # 2 seems plainly contradicted by their admittedly inaccurate disclosures. They argue, however, that the trial court’s denial of “all other relief,” including a fraud claim, proves that the court did not believe Sellers’ admissions that they knew their disclosures were false, “and absent that disbelieved testimony, no other substantial evidence exists” to support element # 2.

We admire Sellers’ ingenuity, but are not convinced. The issue is not whether the trial court could or should have found actionable fraud, nor whether that court erred in any other non-appealed ruling, but whether any evidence supported its implicit finding that Sellers should have known their disclosures were false. Since Sellers’ own testimony supports that conclusion, their Point I challenge to the sufficiency of the evidence fails.

Point II

Point II makes a two-pronged argument that Buyers did not prove that their pecuniary losses resulted from reliance on Sellers’ misstatements. As to reliance, Sellers note that Buyers viewed the home several times and hired their own inspector. We are guided in this regard by our observations in Artilla Cove Resort

In Consumers Cooperative Association v. McMahan, 393 S.W.2d 552, 556[6] (Mo.1965), our Supreme Court stated that “where a party makes his own independent investigation, he will be presumed to have been guided by what he learned and the conclusions he reached and will not be permitted to say that he relied on misrepresentations of another and that he was deceived thereby.”
However, we have recognized three exceptions to the general rule enunciated in Consumers Cooperative Association. Iota Management Corp. v. Boulevard Inv. Co., 731 S.W.2d 399, 413 [10, 11] (Mo.App.1987). First, if the party making the independent inspection makes only a partial inspection and relies on the misrepresentations as well as the inspection, he may maintain an action for fraud. Second, the buyer is entitled to rely on the representation when he lacks equal footing for learning the truth where the facts are peculiarly within the knowledge of the party making the representation and are difficult to ascertain. Third, even if the parties stand on equal footing, if the seller makes a distinct and specific representation, the buyer has the right to rely on the representation. [Emphasis added.]

72 S.W.3d at 299-300. At least the second and third exceptions fit this case, and as to the second, these words are apropos:

[I]n the vast majority of cases, a seller, who has lived in a property ... would have knowledge which is superior to a buyer’s knowledge concerning the property’s condition. In this case, for example, sellers may have lived in the house through some rainstorms. Buyers, in contrast, sent an inspector into the house for a few hours, an inspector who may or may not have been in the house while it rained. Obviously, the sellers would have a better vantage position of the leakage problem and the severity of the condition.

Colgan v. Washington Realty Co., 879 S.W.2d 686, 691 (Mo.App.1994).

Sellers also argue that their 1977 and 1980-81 incidents “were unrelated to” any later problems; thus, Buyers’ damages were “not based on the omission of those two events from the disclosure.” Yet these were not Sellers’ only omissions. Mr. Craycroft testified that Buyers relied on Sellers’ disclosures, and specifically that Sellers did not know of any drainage or flood problems at their home or adjacent properties. He testified that Buyers would not have bought the house, or not at that price, had they known its water history and that of adjacent areas. The trial court was entitled to believe this testimony, especially when Buyers had to spend large sums to clean up and remedy their water problems.

The evidence viewed favorably to the judgment thus supports these elements of Buyers’ claim as well. Accordingly, we deny Point II and affirm the judgment.

BATES and FRANCIS, JJ., concur.

      . Sellers’ realtor, who previously lived near Sellers' home, described the pre-culvert neighborhood floods as the ''Catalina River.”

      . The realtor denied this for the most part, but admitted that he advised Sellers not to disclose the 1977 event because that problem had been fixed.


text:
    Dennis PAYNE, Appellant, v. THOMPSON SALES COMPANY, Missouri Automobile Dealers Association and Treasurer of the State of Missouri, as Custodian for the Second Injury Fund, Respondents.
    No. SD 30132.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 24, 2010.

      William D. Powell, Daniel, Powell, Wesley & Brewer, Springfield, for Appellant.
    Christina R. Schoeppey, Rathmel & Bel-den, for Respondents Thompson Sales and MO Automobile Dealers Assoc.
   DANIEL E. SCOTT, Chief Judge.

Dennis Payne (Claimant) appeals from a final award denying his workers’ compensation claim, and candidly admits that he must win all four of his points to prevail. We find no merit to his third point, which challenges the ALJ’s “prevailing factor” finding, and affirm without reaching the other issues.

Background/Principles of Review

Claimant sought benefits for a neck injury allegedly suffered while shoveling ice and snow at work on November 17, 2006. He reported nothing to his employer, then or for the next six weeks, and kept working without interruption. He went to the emergency room on December 27 and reported a history of pain for two days. He had an MRI soon thereafter, then surgery on January 6 for a “huge ruptured cervical disk at the C6-7 level.” The surgeon’s records did not mention a work injury. After the surgery, Claimant first reported a work-related injury to his employer’s human resources coordinator.

The ALJ who heard the evidence at the hearing did not think Claimant was lying about the shoveling incident, but was “not persuaded” that it caused the ruptured disc that was later found and surgically repaired.

Whatever occurred on November 17, 2006, is not the prevailing cause of Claimant’s ruptured or herniated cervical disc and subsequent need for sur-geiy. Section 287.020.3 RSMo Cum. Supp. (2006), provides that an injury is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability....
Here, the evidence suggests that the November 17, 2006, incident was not significant since 1) Claimant did not immediately seek treatment, 2) he continued to work without interruption for a period of six weeks, 3) he did not make complaints of continued pain to most of his co-workers or any supervisors, 4) he did not ask for medical assistance and 5) he sought no accommodation in his job. There also is a complete lack of any contemporaneous corroborating medical history. Claimant’s first visit to the emergency room in December 2006 states nothing of a work incident. Rather, Claimant’s initial emergency room visit, made six weeks after the shoveling incident, indicates that Claimant’s pain was of two days duration. These facts raise significant doubt as to whether the shoveling incident had anything to do with the cause of the herniation and subsequent need for surgery.
Conversely, Claimant had experienced a prior cervical disc. He had a prior surgery, which required the removal of cervical bone. The surgery resulted in the weakening of the cervical structure. Claimant’s own expert, Dr. Koprivica, noted that Claimant had a preexisting weakness that was a factor in his most recent herniated disc. Dr[.] Mauldin indicated that Claimant’s smoking also was a factor in weakening Claimant’s cervical disc. Claimant also had suffered a prior lumbar disc herniation. Dr. Mauldin considered claimant’s preexisting degenerative disc disease as a factor in Claimant’s disc herniation. Based on all of the testimony and facts of this case, I find credible the opinion of Dr. Mauldin that the prevailing cause of Claimant’s herniated disc was the preexisting disc degeneration and Claimant’s genetic propensity to have spontaneous disc herniation. I accept Dr. Mauldin’s opinion over that of Dr. Koprivica on this issue in this case. Compensation is denied.

These findings bind us if supported by competent and substantial evidence in the context of the whole record. See Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We defer to the ALJ as to witness credibility, the weight given to testimony, and the acceptance or rejection of medical evidence. Hawthorne v. Lester E. Cox Medical Centers, 165 S.W.3d 587, 592, 595 (Mo.App.2005).

Challenge to Prevailing Factor Determination

Claimant contends that the quoted findings are unsupported by competent and substantial evidence. We disagree, and in so doing, reject Claimant’s suggestion that Dr. Mauldin’s opinion does not satisfy this requirement.

In this context, evidence is “competent” if it is relevant and admissible, and is “substantial” if it is probative of an issue it was offered to prove. Hartle v. Ozark Cable Contracting, 291 S.W.3d 814, 816 (Mo.App.2009). Thus, “competent and substantial evidence” is admissible evidence, to the extent it is believed or taken as true, tending to prove or disprove a material issue.

Dr. Mauldin’s opinion, if believed, tends to show the prevailing cause of Claimant’s medical condition and disability. The ALJ believed Dr. Mauldin and, since Claimant did not object to his testimony, admissibility is not an issue. Therefore, Dr. Maul-din’s testimony is competent and substantial evidence supporting the award.

In fact, Claimant’s complaints “do not bear on whether the evidence was competent (relevant and admissible) or substantial (probative of the issues it was offered to prove),” but “on the quality or credibility of the evidence (issues for the Commission to take into account when it renders its decision).” Hartle, 291 S.W.3d at 817. Here, the ALJ had opposing “prevailing cause” opinions from two experts, each of whom had examined Claimant, reviewed the medical records, and explained the basis for his opinion. Since each opinion was admitted into evidence without objection, the ALJ could consider both opinions and rely upon either. Gordon, 268 S.W.3d at 461. The ALJ believed Dr. Mauldin, a decision we are not authorized to second-guess. Casteel, 257 S.W.3d at 162.

Furthermore, this is not “the rare case when the award is contrary to the overwhelming weight of the evidence.” Hampton, 121 S.W.3d at 223. Claimant’s evidence would support a contrary decision, but is not so overwhelming that it compels us to reverse. The cause of a herniated disc has been held to be an issue for expert opinion. See Silman v. William Montgomery & Associates, 891 S.W.2d 173, 176 (Mo.App.1995). The ALJ here was free to choose between the two opposing experts. We do not disrupt such choices, even if the competing expert is worthy of belief. Hulsey, 239 S.W.3d at 162. The ALJ believed Dr. Mauldin, and neither that choice nor Dr. Mauldin’s opinion was against the overwhelming weight of the evidence.

Conclusion

We need not address Claimant’s other points. The ALJ found Claimant’s shoveling incident was not the prevailing cause of his medical condition or disability, and as a result, § 287.020.3(1) barred recovery. Since Claimant’s challenge to that finding fails, we must and hereby do affirm the award. See § 287.495.

LYNCH and FRANCIS, JJ., concur.

      . Statutory references are to the Worker's Compensation Act, RSMo chapter 287, as amended through 2005 (the “Act''). We review the ALJ’s decision since the Labor and Industrial Relations Commission adopted it as its final award. Casteel v. Gen. Council of Assemblies of God, 257 S.W.3d 160, 162 (Mo.App.2008).

      . Per the Act’s 2005 amendments, an injury by accident is not compensable unless the accident is the "prevailing'' cause {i.e., “the primary factor, in relation to any other factor”) of both the resulting medical condition and disability. § 287.020.3(1). A "substantial factor” standard previously had been used. See Johnson v. Indiana Western Express, Inc., 281 S.W.3d 885, 891 n. 5 (Mo.App.2009); Gordon v. City of Ellisville, 268 S.W.3d 454, 459 (Mo.App.2008).

      . We are not persuaded by Claimant's argument to disregard these findings as irreconcilably inconsistent with the ALJ’s comments that Claimant was not "lying about having been hurt while shoveling” or that Claimant's witnesses "substantiated that Claimant immediately thereafter limited his physical activities due to physical discomfort.”

      . See also Hartle, 291 S.W.3d at 817 (no "back-door” challenges to admissibility of expert opinion under guise of insufficient evidence claim).

      . Silman is one of many cases overruled on an unrelated issue by Hampton, 121 S.W.3d at 224-32.


text:
    In re C.M.B. and M.M.J.B., by their Next Friend, Michael Barker, and Michael Barker, Individually, Michael Barker, Respondent, v. Rebecca Sue Lind, Appellant.
    No. SD 30210.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 27, 2010.

      William G. Weber, Pineville, MO, for Appellant.
    Tina M. Longnecker, Joplin, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Rebecca Sue Lind (“Appellant”) appeals a judgment of the trial court awarding Michael Barker (“Respondent”) joint legal and physical custody of their two minor children, and designating Respondent as residential custodian for education and mailing purposes. We affirm the judgment of the trial court.

Factual and Procedural History

Appellant and Respondent are the natural parents of two minor children: C.M.B., born November 22, 1997, and M.M.J.B., born July 16, 1999. The parties have lived apart for the last eight years. During this time, the children resided with Appellant; Respondent maintained a relationship with the children.

On April 21, 1998, the Division of Child Support Enforcement issued an administrative order for Respondent to pay Appellant child support, on behalf of the two minor children, in the amount of $392.00 per month.

On August 31, 2005, Respondent filed a three-count “Petition for Determination of Father-Child Relationship, Order of Child Custody, Visitation, and Order of Child Support.” In Count I Respondent asked the trial court to determine the existence of the father-child relationship between Respondent and the two children. In Count II he requested the trial court place the children in his primary care and custody subject to Appellant receiving reasonable and specific visitation as set forth in his proposed parenting plan. In Count III Respondent asked the trial court to order Appellant to pay Respondent reasonable child support. When the petition was filed, Respondent was $13,620.85 in arrears on child support.

In Appellant’s answer to the petition, she admitted the trial court should make a determination of paternity, but requested the trial court award her custody and appropriate child support. She also admitted that “neither Petitioner nor Respondent has participated in any capacity in any other litigation concerning the custody” of the minor children. She did not file any motions or counterclaims on the issues raised by the pleadings.

On June 17, 2008, the date of trial, Respondent was in arrears in child support in the amount of $16,150.96

On July 7, 2008, judgment was entered; Respondent was designated as the residential custodian of the children subject to Appellant’s visitation, per Respondent’s Parenting Plan. The trial court ordered child support in the amount of $273.00 per month payable from Appellant to Respondent. This amount was ordered to be “offset against any child support arrears as payable from Respondent to [Appellant].” The trial court’s judgment was inadvertently designated “Judgment of Modification.” However, on July 17, 2008, Respondent filed a motion nunc pro tunc seeking to amend the designation of the judgment from “Judgment of Modification” to “Judgment of Paternity.” This motion was granted on October 8, 2008.

On July 21, 2008, Appellant filed a “Motion to Set Aside Judgment of Modification, for a New Trial, or, in the Alternative, to Amend Judgment.” Appellant alleged, for the first time, that Respondent could not file his petition because section 452.455 required him to post a bond, as a condition precedent to the petition, since he owed more than $10,000.00 in child support. On October 8, 2008, the trial court denied Appellant’s motion. This appeal followed.

In Appellant’s sole contention, she argues the trial court misapplied the law in granting judgment of paternity that affected a change in custody, because Respondent failed to meet a condition precedent required by section 452.455.4 of posting a bond, as he owed more than $10,000.00 in past due child support when the original petition was filed. Respondent contends section 452.455.4 is inapplicable to a petition seeking an initial decree of paternity, custody and visitation. The only issue presented for determination is whether section 452.455.4 required the filing of a bond when a petition for an initial decree of custody and visitation is filed.

Standard of Review

We must affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declared the law, or erroneously applied the law. Mur phy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Analysis

Section 452.45S.4 (a part of the Uniform Child Custody Act adopted by Missouri in 1978) required a parent who was more than $10,000.00 in arrears in child support to post a bond in the amount of the arrear-age, or the legal fees of the custodial parent, whichever is greater, before filing a “petition for modification of a child custody decree.”

We look to section 452.445 for specific definitions in interpreting the language in section 452.455.4:

As used in sections 452.440 to 452.550:
(1) ‘Custody determination’ means a court decision and court orders and instructions providing for the custody of a child, including visitation rights. This term does not include a decision relating to child support or any other monetary obligation of any person; but the court shall have the right in any custody determination where jurisdiction is had pursuant to section 452.460 and where it is in the best interest of the child to adjudicate the issue of child support;
(2) ‘Custody proceeding’ includes proceedings in which a custody determination is one of several issues, such as an action for dissolution of marriage, legal separation, separate maintenance, appointment of a guardian of the person, child neglect or abandonment, but excluding actions for violation of a state law or municipal ordinance;
(3)‘Decree’ or ‘custody decree’ means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;
(5) ‘Initial decree’ means the first custody decree concerning a particular child[.]

“Absent a statutory definition, the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. banc 2010). Only if the language is ambiguous, or would lead to an absurd or illogical result, will a court look beyond the plain meaning of the statute. Id.

In Weigand v. Edwards, the Supreme Court described the scope of section 452.455.4:

The prohibition in the statute is limited to seeking a modification of custody and, visitation provisions of a prior decree; it affects only parents who are more than $10,000 in arrears in child support and who do not file a bond. Because the statute applies to only modification proceedings, custody and visitation for the child will be governed by the provisions in the final judgment entered in a prior proceeding between the parties.

296 S.W.3d 453, 460 (Mo. banc 2009) (emphasis added).

Here, the record shows Respondent’s petition was for an initial decree of paternity, custody and visitation. Respondent filed a “Petition for Determination of Father-Child Relationship, Order of Child Custody, Visitation, and Order of Child Support” and the trial court rendered judgment on each issue. No other court had previously rendered judgment on any of these issues. Appellant admitted that “neither Petitioner nor Respondent has participated in any capacity in any other litigation concerning the custody” of the minor children. Section 452.550 directs that a “child custody decree” requires a court decision, court order, or court instruction providing for the custody of a child, including visitation rights. The statute also explicitly notes that custody determination “does not include a decision relating to child support or any other monetary obligation of any person .... ” § 452.445. Significantly, the administrative order by the division of child support enforcement does not qualify under this definition. Administrative agencies do not have the power to set custody and visitation. “Exclusive powers of the judiciary include the ability to render judgments and conduct judicial review.” State ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 612 (Mo. banc 2002). Thus, the judgment entered by the trial court clearly meets the statutory definition for an initial custody decree. § 452.455.

Interpreting section 452.455.4 to include an administrative order of the Division of Child Support Enforcement would require us to ignore the express terms the legislature mandated in this statute. This we cannot do as it is well-settled law that a definition provided by the statute is binding in its interpretation. Moses v. Carnahan, 186 S.W.3d 889, 900 (Mo.App.W.D. 2006). We find the statute is unambiguous that the bond requirement applies only to petitions seeking to modify child existing custody or visitation decrees. Our Supreme Court explicitly noted “the statute applies to only modification proceedings .... ” Weigand, 296 S.W.3d at 460 (emphasis added). During oral argument, Appellant’s counsel admitted that the judgment entered by the trial court does not fit the technical requirements of the statute and that an administrative order is not a decree. We decline to depart from the plain language of the statute. To do so would require us to insert language into the statute which is not present.

The cases Appellant cites as support for her contention all involve motions to modify existing custody and visitation judgments. Miller v. Miller, 210 S.W.3d 439 (Mo.App. W.D.2007); J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 256 (Mo. banc 2009); and In re Marriage of Hendrix, 183 S.W.3d 582, 588 (Mo. banc 2006) all refer to circumstances where a party was seeking to modify an existing decree.

Accordingly, we conclude section 452.455.4 does not require a bond to be posted when an initial petition for a decree of paternity, custody, and visitation is filed if the Movant is in arrears for child support payments. There is no showing the trial court’s judgment is unsupported by substantial evidence, against the weight of the evidence, or erroneously declares or applies the law. The judgment of the trial court is affirmed.

RAHMEYER, P.J. and BATES, J., Concur.

      . All references to statutes are to RSMo 2008, unless otherwise indicated. Sections 452.440 through 452.550 were repealed by L.2009, H.B. No. 481, § A H.B. 481 section A.

      . Section 452.455.4 stated:
      When a person filing a petition for modification of a child custody decree owes past due child support to a custodial parent in an amount in excess of ten thousand dollars, such person shall post a bond in the amount of past due child support owed as ascertained by the division of child support enforcement or reasonable legal fees of the custodial parent, whichever is greater, before the filing of the petition. The court shall hold the bond in escrow until the modification proceedings pursuant to this section have been concluded wherein such bond shall be transmitted to the division of child support enforcement for disbursement to die custodial parent, (emphasis added).