author: GARY D. WITT, Judge.

text:
    A.S. and B.S., Respondents, v. Tate DECKER, Appellant.
    Nos. WD 71680, WD 71681.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Susan E. Block and Alan E. Freed, St. Louis, MO, for appellant.
    J. Zachary Bickel, Kansas City, MO and Josh Oxenhandler, Columbia, MO, for respondents.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Tate Decker appeals the entry of two full orders of protection under Missouri’s Adult Abuse Act (455.005 et. seq.) entered against him in favor of A.S. and B.S. For the reasons explained below, we affirm in part and reverse in part.

Factual Background

Tate Decker (“Decker”) and A.S. had a child together in 2005, and since that time their romantic relationship has ended. A.S. is now married to B.S.

On July 30, 2009, A.S. and B.S. each filed a petition for an ex parte order of protection in Boone County Circuit Court under Section 455.035; orders were issued by the Court. The first petition was filed by A.S., and sought a full order of protection against Decker based on allegations that Decker had threatened and harassed her. The second petition was filed by B.S. against Decker based on allegations that Decker threatened him.

On August 27, 2009, the trial court, without objection, joined both actions for purposes of trial. During the trial, all the parties testified. The trial court issued both A.S. and B.S. a full order of protection against Decker under Section 455.020.

This appeal followed. The matters remain joined for purposes of this appeal.

Standard of Review

Our applicable standard of review was recently outlined in Binggeli v. Hammond in the following passage:

Our review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Schwalm v. Schwalm, 217 S.W.3d 335, 336 (Mo.App. E.D.2007). We, therefore, will uphold the trial court’s judgment as long as it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply the law. Id. In reviewing the trial court’s judgment, we consider the evidence in a light most favorable to the judgment and defer to the trial court’s determination of credibility.

300 S.W.3d 621, 623 (Mo.App. W.D.2010).

Analysis

In Point One, Decker argues the trial court erred in entering a full order of protection in favor of B.S. because B.S. failed to prove his allegations of stalking as required by Section 455.020. Section 455.020 provides the elements that must be proven under the Act before a court may grant a full order of protection. That section states that “[a]ny adult who has been subject to abuse by a present or former adult family or household member, or who has been the victim of stalking, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such abuse or stalking by the respondent.” Section 455.020. “As such, a full adult protection order may be entered only upon proof that the petitioner was: (1) subjected to abuse by a present or former adult family or household member or (2) subjected to stalking.” H.K.R. v. Stemmons, 295 S.W.3d 220, 223 (Mo.App. W.D.2009). “Because there is real harm that can result in abusing the Adult Abuse Act and its provisions, including the stigma that may attach to a respondent who is ultimately labeled a ‘stalker,’ trial courts must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection.” McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App. E.D.2006) (citing Overstreet v. Kixmiller, 120 S.W.3d 257, 258 (Mo.App. E.D.2003)).

In the case at bar, all parties agree that B.S. was not a present or former adult family or household member as defined in Section 455.010(5). The statute defines a “family” or “household member” as:

[Sjpouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and adults who have a child in common regardless of whether they have been married or have resided together at any time[.]

B.S.’s only connection to Decker is that he is now A.S.’s husband. Accordingly, B.S. does not qualify as a adult family or household member; therefore, in order to qualify for a full order of protection under Section 455.020, he must be able to prove that he was subjected to stalking by Decker. See H.K.R., 295 S.W.3d at 223.

B.S. testified at trial to the following incidents as the bases of his stalking allegation:

(1) His wife A.S. received a call on her cell phone from Decker at 3:00 am on their wedding night, which she did not answer.
(2) On July 30, 2009, he was on the way to the police station to meet A.S. and her child who were there to resolve a conflict with Decker involving child visitation issues. In route to the police station, Decker pulled his vehicle next to B.S.’s almost hitting him and then pulled directly in front of his vehicle, causing B.S. to swerve and brake to avoid a collision. Decker then proceeded to make an offensive gesture and said something that B.S. could not hear but he felt to be threatening.
(3) When A.S. receives threatening calls or messages, she instantly relays them to him, and he feels equally threatened.

In McGrath v. Bowen, the court considered an order of protection entered on behalf of the petitioner for acts of stalking directed solely toward the petitioner’s minor child. There the court found the full order of protection improper because the petitioner “must be both an adult and a victim McGrath, 192 S.W.3d at 517 (emphasis added). In that case, the court made clear that even though a close relationship (parent-child) existed between the direct victim of stalking and the petitioner, that relationship was insufficient to support the petitioner’s full order of protection. Id. There was no evidence that B.S. was threatened by Decker, only that A.S. relayed the threats she received to B.S. Accordingly, B.S.’s relationship to A.S. does not of its own accord support a finding that words and actions directed solely toward A.S. create a basis for his own order of protection.

Section 455.010(10) defines “stalking” as “when an adult purposefully and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.” As used in this subdivision:

(a) “Alarm” means to cause fear of danger of physical harm.
(b) “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose....;
(c) “Repeated” means two or more incidents evidencing a continuity of purpose;

Section 455.010(10).

The only incident in the record, directed at B.S., to support the stalking allegation is the confrontation with Decker in his vehicle. As such, there were no repeated acts constituting a course of conduct, and thus, no allegation of stalking could have been sustained.

Because the circuit court misapplied the law in entering a full order of protection against Decker on behalf of B.S., the Judgment of this Full Order of Protection is reversed.

In Point Two, Decker argues the trial court erred in entering a full order of protection on behalf of A.S. based on A.S.’s allegations of harassment because the Order was not supported by competent and substantial evidence and was against the weight of the evidence, in that A.S. failed to demonstrate a knowing course of conduct aimed toward her that served no legitimate purpose, and A.S. failed to demonstrate substantial emotional distress.

It is agreed by all parties that A.S. has a child with Decker and, as such, qualifies as a “family” or “household member” under Section 455.010(5). Accordingly, in order to be entitled to full order of protection, per the statute, A.S. need only show that she has been subject to “abuse” by Decker. “Abuse” is defined as including, but not limited to, acts, attempts, or threats of the following: assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment. Section 455.010(l)(a)-(f).

A.S. alleged in her Petition that Decker both harassed her and threatened her. Harassment is defined under Section 455.010(l)(d) as:

[Ejngaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to another adult and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.

A.S. testified to the following incidents to support for her allegations:

(1) Decker has called A.S. repeatedly during the day while she is at work and not with the child after she had requested he desist. Over the phone Decker becomes very violent and talks about things other than their child.
(2) When Decker is with the child, he refuses to let A.S. talk with her or let A.S. know where she is located.
(3) In October 2008, Decker called A.S. several times asking why he was being retained in the country. (Decker was not allowed to leave the country because Family Services notified the authorities that he was late on child support payments pursuant to Section 454.890.) Decker then said he was coming over to A.S.’s house. A.S. called the police because she was afraid of him.
(4) On July 24th, 2009, Decker, after already exercising his visitation rights for the week, threatened to come over to A.S.’s house and pick up the child and bring whomever he needs to bring to accomplish it.
(5) The child’s daycare filed a trespassing order against Decker because they feel threatened by him, he speaks badly of A.S., and talks about child support and visitation issues in front of their child and other children.
(6) She testified there were numerous other threats that he would come over to her home and threats not to return the child.
(7) Decker was on probation for two years from August 2007 to August 2009 because he pled guilty to the offensive touching of A.S.

Reviewing the evidence in the light most favorable to the circuit court’s order, we defer to the trial court’s “ ‘superior ability to evaluate the potential for abuse by the testimony and demeanor of witnesses.’” Cuda v. Keller, 236 S.W.3d 87, 89 (Mo.App. W.D.2007) (quoting Parkhurst v. Parkhurst, 793 S.W.2d 634, 637 (Mo.App. E.D.1990)). With these principles in mind, the trial court’s record contains sufficient evidence to find that Decker engaged in a pattern of conduct that served no legitimate purpose, which constitutes harassment to A.S.

As part of probation for offensive touching of A.S., Decker was not to have any contact with A.S. except for purposes of exchanging the child. A.S. testified that she received multiple calls from Decker while he was on probation wanting to talk about things unrelated to the child and that he became violent during the conversations. Refusing to let A.S. speak with the child over the phone and withholding information as to the whereabouts of the child certainly constitutes conduct which would cause a reasonable person alarm and distress without serving a legitimate purpose. Threatening to come over to A.S.’s house to take the child, and to bring whomever he needs to accomplish it, as well as threatening not to return the child are likewise conduct likely to cause alarm to a reasonable person and serves no legitimate purpose. The trial court did not err when it found that Decker had abused A.S. within the meaning of Section 455.010.

“Abuse by harassment requires a dual showing, that the conduct must be such as to cause a reasonable person to suffer substantial emotional distress, but also that it must actually cause such distress to the petitioner.” C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo.App. E.D.2008) (citing Wallace v. Van Pelt, 969 S.W.2d 380, 384 (Mo.App. W.D.1998)). “The phrase ‘substantial emotional distress’ means ‘the offending conduct must produce a considerable or significant amount of emotional distress in a reasonable person; something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living.’ ” Id. (quoting Wallace, 969 S.W.2d at 386).

A.S. testified that, as a result of Decker’s actions threatening to come pick up the child with whomever he needs to accomplish it, she was “very scared.” As a result of the incident involving Decker in October 2008, A.S. called police when Decker threatened to come to her home because he wanted visitation with the child. Further, the record shows that Decker was already on probation concurrent with these events for a period of two years for offensive touching of A.S. A.S.’s testimony, the history between Decker and A.S., and the logical inferences from A.S.’s conduct are adequate to support the circuit court’s finding that A.S. proved by a preponderance of the evidence that she suffered substantial emotional distress as a result of Decker’s actions.

Decker cites two cases for the contention that simply answering in the affirmative to a leading question does not meet the level of harm required to support an order of protection. In both Schwalm and Buchheit, the court found that simply answering in the affirmative that the petitioner felt “alarm” at the challenged conduct was insufficient to show the challenged conduct caused fear of danger of physical harm. Schwalm, 217 S.W.3d at 337; Buchheit, 254 S.W.3d at 213. These cases are inapplicable here because the petitioner testified to specific conduct which caused her emotional distress.

“Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32. “ ‘The trial court is free to believe or disbelieve all, part or none of the testimony of any witness.’ ” Cuda, 236 S.W.3d at 91 (quoting T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989)). “It is also ‘in a far better position to evaluate the credibility of witnesses than an appellate court and the resolution of conflicting evidence ... is left to the trial court with deference to be accorded to its conclusion.’ ” Id. (quoting In re Marriage of Sisk, 937 S.W.2d 727, 731 (Mo.App. S.D.1996) (internal quotation marks omitted)).

There was substantial evidence presented by A.S. to support the entry of a full order of protection on her behalf. Nothing in the record suggests that the trial court’s decision was against the weight of the evidence. Accordingly, the trial court did not err in granting A.S. an order of protection.

Point Two is denied.

Conclusion

The Judgment of a Full Order of Protection on the behalf of B.S. is reversed, and the Judgment of a Full Order of Protection on the behalf of A.S. is affirmed.

All concur.

      . All statutory citations are to RSMo 2000, as updated through the 2010 Cumulative Supplement, unless otherwise indicated.


source: Caselaw Access Project

author: MARK D. PFEIFFER, Judge.

license: Public Domain

text:
    Lori Lynn LEMONS, Respondent, v. Gregory Allen LEMONS, Appellant.
    No. WD 71044.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.

      Lori Lynn Lemons, Independence, MO, Respondent, pro se.
    Gregory Allen Lemons, Farmington, MO, Appellant, pro se.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   MARK D. PFEIFFER, Judge.

Gregory Alen Lemons (“Husband”), self-represented, appeals the judgment of the Buchanan County Circuit Court (“trial court”) dissolving his marriage to Lori Lynn Williamson (“Wife”) and apportioning the property and debt of the marriage. Husband raises three points on appeal, all of which present issues of claimed error that cannot be reviewed without a record of all of the evidence that was before the trial court at the time judgment was entered. Husband has failed to file the transcript of the trial below. As such, we dismiss Husband’s appeal for failure to file an adequate record on appeal.

Facts and Procedural History

Viewed in the light most favorable to the judgment, Ludwig v. Ludwig, 126 S.W.3d 466, 474 (Mo.App. W.D.2004), the facts are as follows: Husband and Wife married on January 7, 1999, in Las Vegas, Nevada. On July 17, 2007, Husband was arrested for violation of his probation and was subsequently sentenced to incarceration at the Farmington Correctional Center in Farm-ington, Missouri. At all times relevant to the present case, Husband was incarcerated at the Farmington Correctional Center.

On August 11, 2008, Wife filed her “Petition for Dissolution of Marriage” in the Circuit Court of Andrew County. Husband was personally served on August 28, 2008, and timely moved for a change of venue. On October 29, 2008, venue was transferred to Buchanan County, in accordance with section 452.300. Husband filed an untimely responsive pleading with the trial court on December 1, 2008. After due notice to Husband, the trial court held an evidentiary hearing regarding this dissolution proceeding on December 11, 2008. Husband did not appear either in person or by counsel. Wife appeared in person and by counsel and presented evidence to support her petition for dissolution. The trial court entered its judgment dissolving the marriage and dividing the marital property and debts on March 3, 2009. This timely appeal follows.

Legal Analysis

In his three points on appeal, Husband contests the findings and division of the assets by the trial court. However, for us to review the judgment of the trial court, we must be provided with an adequate record on appeal detailing the evidence that was before the trial court. Powell v. Powell, 250 S.W.3d 831, 832 (Mo.App. W.D.2008). In the current case, we cannot review the appeal on its merits because Husband failed to make the transcript of the hearing available for our review. As a result of that omission, we do not know what evidence was admitted by the trial court or what testimony was presented by Wife or any witnesses that may have been called by Wife. Without this information, we cannot examine the judgment of the trial court to see if the judgment lacked substantial evidence to support it, was against the weight of the evidence, or based upon the facts of the case, it erroneously declared or applied the law. Saxton v. Saxton, 220 S.W.3d 869, 872 (Mo.App. W.D.2007).

It was Husband’s duty as the appellant to provide a transcript. Powell, 250 S.W.3d at 832 (“Rule 81.12(a) ‘requires an appellant to file a transcript and prepare a legal file so that the record contains all the evidence necessary for a determination of questions presented to the appellate court for a decision.’ ”) (quoting Bastain v. Brown, 28 S.W.3d 494, 495 (Mo.App. E.D.2000)). When the appellant asks us to review a proceeding, but fails to include a record of that proceeding, there is “ ‘nothing for an appellate court to decide.’ ” Milone v. Duncan, 245 S.W.3d 297, 301 (Mo.App. W.D.2008) (quoting Cooper v. Gen. Standard, Inc., 674 S.W.2d 117, 122 (Mo.App. W.D.1984)); Huber ex rel. Boothe v. Huber, 204 S.W.3d 364, 368 (Mo.App. W.D.2006) (“Where, as here, the record does not contain all information and documents necessary for this Court to determine an issue presented on appeal, review by this court is impossible, and the claim of error must be dismissed.”). In the present ease, each of Husband’s points on appeal is predicated on the argument that the trial court improperly weighed, or ignored, evidence available to the trial court in arriving at its judgment. As a result, each of Husband’s claims of error cannot survive the failure to properly provide this court with a complete record on appeal that details all the evidence before the trial court.

Although we are aware of the difficulties that a self-represented party faces when attempting to comply with the rules of appellate procedure, we must require such compliance, even if it means dismissing the appeal. Selberg v. Selberg, 201 S.W.3d 513, 514 (Mo.App. W.D.2006). Failure to do so would provide self-represented parties with preferential treatment. Id. Consequently, we conclude that because Husband failed to provide an adequate record on appeal with a transcript, we are obliged to dismiss his appeal. It is so ordered.

JAMES M. SMART, JR., Presiding Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . Husband did not timely file a responsive pleading, and the judgment refers to the fact that Husband was in default. Husband did file an untimely responsive pleading without seeking leave of court to do so. Ordinarily, a default judgment is not appealable in the absence of a motion to set aside or vacate pursuant to Rule 74.05(d). Vonsmith v. Vonsmith, 666 S.W.2d 424, 424 (Mo. banc 1984). Because the record is somewhat unclear as to whether the trial court permitted or considered Husband's untimely filed responsive pleading, we exercise our discretion to review the trial court's judgment based upon the evidence that was presented to the trial court at the hearing of December 11, 2008.

      . The facts available on the record for this case are extremely scant. Husband's statement of facts was minimal, and Wife did not submit a brief.

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


author: CYNTHIA L. MARTIN, Judge.

text:
    Stephanie Ann HECK, Respondent, v. Douglas S. HECK, Appellant.
    No. WD 71642.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.

      John R. Shank, Jr., and Ryan J. Springer, Kansas City, MO, for appellant.
    Michael L. Taylor and Benjamin S. Creedy, St. Joseph, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Douglas Heck (“Father”) appeals from the trial court’s judgment dissolving his marriage to Stephanie Heck (“Mother”). Father contends that the trial court erred in: (1) calculating his child support obligation because the trial court’s imputation of annual income of $100,000 to Father was not supported by substantial evidence, and (2) awarding Mother both retroactive child support and a monetary judgment for a past due child care bill because child care expenses were already included in calculating the retroactive child support amount. We affirm.

Factual and Procedural History

Mother and Father were married on July 18, 1998, and separated on October 15, 2008. They have three children. Mother filed a petition for dissolution of marriage on March 5, 2009, followed by Father’s answer and counter-petition. Prior to trial, the parties resolved all issues except child support, retroactive child support, and a past due child care bill. On September 3, 2009, the trial court heard evidence on these unresolved issues.

Father has a banking and finance degree from the University of Missouri. Father worked in the mortgage and life insurance industries for years and acquired an insurance broker’s license. Though Father has been a licensed insurance agent for fifteen years, he has chosen not to be active in that field. During the eleven year marriage, Father usually earned over $100,000 a year and sometimes as much as $200,000 a year. Father testified that he owned a mortgage company from 2002-2008. Per income tax returns, Father’s gross income in 2008 was $99,758 and $126,234 in 2007. Father offered no credible evidence of his income in 2009.

At the time of trial, Mother was employed at the Weston Family Clinic. Mother’s gross monthly income was $1,690. Mother testified that she lost a higher paying job as a result of Father’s harassing conduct, including: repeatedly driving by Mother’s workplace; disconnecting Mother’s battery cables; and putting a mixture of Vaseline, mustard, brown sugar, and sardines on the doors and sidewalks at Mother’s workplace. Mother was required to seek an order of protection against Father because of the harassment. After Mother filed for an order of protection, Father sent Mother threatening text messages, including a message which advised Mother to “say good bye” if she did not drop the request for the protection order, and another which warned “if you were to win once-zero chance you would live through the night.” The trial court issued an order of protection on March 9, 2009. Among other things, the order of protection expressly prohibited Father from dissipating assets.

Notwithstanding the order of protection, Father depleted the children’s MOST accounts, intended for use toward the cost of the children’s education. Each of the three accounts contained approximately $10,000. Father also continued his intimidation and harassment of Mother. Father advised Mother that he intended to work as little as possible during the pendency of the dissolution proceedings so that his income would be minimized. Father specifically advised Mother he was going to “chill” until the dissolution was over. Through a steady stream of email and text messages, Father expressed that he was hiding assets and that he was prepared to do whatever was necessary to avoid obligations such as child support. Father’s messages included:

• On April 30, 2009, Father sent Mother a text message stating that for their daughter’s gymnastics bill, “tell Hannah no gymnastics today” and that if Mother would drop the order of protection against Father, he would try to get the gymnastics money.
• On May 1, 2009, Father sent a message saying, “I have $50,000 hiding and I won’t give you a dime until you remove the order.” Father’s demand to remove the order was repeated fourteen times in all capital letters.
• On May 2, 2009, Father sent Mother a text message saying, “You will get so little child support because I will hide whatever I have. Remember, I am smarter than you, dumbass. You will have money to buy them clothes at garage sales.” On that date, Father also sent Mother a photograph of a number of $100 bills while claiming he had no money.
• Father sent Mother a photograph on May 9, 2010, via email which showed stacks of money lying on a table.
• On May 31, 2009, Father sent Mother another text message saying, “I will be laughing when you file bankruptcy, and I have all of our retirement.”
• On June 6, 2009, Father sent Mother a message stating, “When you are broke, I will take the kids.”
• On June 8, 2009, Father sent Mother a text message stating, “If you get sole custody, you’ll never live through the night.”
• On June 10, 2009, Father sent Mother a text message saying “You are out-earning me, according to my documents, and no one will know the difference — no one will no different.”
• On June 10, 2009, Father also stated that “I’m looking forward to watching you work your fingers to the bone while I enjoy our children.”
• On June 10, 2009, Father sent Mother a text message demanding that Mother drop the order of protection and saying, “My answer is no 100 percent of the time. It does not matter the question.” This was during a time when Mother was in desperate need of money and had asked Father for help.
• On June 12, 2009, Father sent Mother a text message saying that “You will care when you can’t pay your utilities and buy a cheeseburger and don’t have time to see your kids.”
• On June 26, 2009, Father sent Mother a message saying, “I will ruin you and your future.”

Father sent all of these messages to Mother while the order of protection prohibiting Father from having any contact with Mother was in place.

On September 18, 2009, the trial court issued its judgment. The trial court found the presumed child support amount pursuant to section 452.340.8, Rule 88.01, and as calculated by Form 14 to be $1,830 per month. The trial court found that this presumed amount had not been rebutted as unjust and inappropriate. The trial court made the child support award retroactive to March 5, 2009, (the date Mother filed for dissolution) because Father had provided little to no financial support to Mother during the pendency of the dissolution proceedings.

The trial court noted the parties had a debt for an unpaid child care bill in the amount of $1,900. The trial court found that it was appropriate to set responsibility for payment of this debt off to Father. The trial court thus entered a judgment in Mother’s favor in the amount of $1,900.

Father appeals.

Standard of Review

“ ‘In a court-tried case, the decree of the trial court must be affirmed 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.’ ” Potts v. Potts, 303 S.W.3d 177, 184 (Mo.App. W.D.2010) (citation omitted). We view the evidence in the light most favorable to the trial court’s judgment and defer to the trial court’s credibility determinations. Id. The trial court is free to believe none, part, or all of the testimony of any witnesses. Id. “ ‘We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment.’ ” Id. (citation omitted). The burden of proof is on the party challenging the trial court’s judgment in a dissolution of marriage to demonstrate error. Id.

Analysis

Point I

In his first point on appeal, Father contends that the trial court erred in calculating his child support obligation in that the trial court imputed annual income to Father in the amount of $100,000. Father claims the amount of imputed annual income was not supported by substantial evidence. Specifically, Father complains that the trial court improperly imputed income relying on his past income from a failed business venture. We disagree.

A two-step procedure is used by the trial court to determine child support awards pursuant to section 452.340 and Rule 88.01. Id. at 194. First, the trial court must determine the presumed child support amount pursuant to Form 14. Id. Section 452.340 sets forth the factors to be considered by the trial court in determining child support. Relevant to this case, those factors include the financial needs and resources of the parents.

Second, the trial court must determine whether to rebut the presumed child support amount as being unjust or inappropriate. Potts, 303 S.W.3d at 194. Rule 88.01 provides that there is a rebuttable presumption that the amount of child support calculated pursuant to Form 14 is correct unless after consideration of relevant factors, the amount is unjust or inappropriate.

To determine whether the presumed child support has been calculated correctly, the trial court is to be guided by Directions and Comments for Use of Form 14 and the evidence of the case. Potts, 303 S.W.3d at 194. The Directions and Comments for Use and Examples for Completion of Form 14 provide that a parent’s gross income may be based on imputed income if the parent is unemployed or found to be underemployed. Comment H to Line 1 provides that when determining whether to include imputed income, and if so, the amount, the trial court shall consider all relevant factors including: (1) the parent’s probable earnings based on the parent’s work history during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods; (2) the parent’s occupational qualifications; (3) the parent’s employment potential; (4) the available job opportunities in the community; and (5) whether the parent is custodian of a child whose condition or circumstances make it appropriate that the parent not be required to seek employment outside the home.

The theory behind imputing income to a spouse/parent is directed toward preventing a spouse from escaping responsibilities to the family by deliberately or voluntarily reducing his or her income. Imputation of income is proper where a parent has voluntarily reduced his or her income without justification. The most common scenario for voluntary reduction of income without justification is where a parent deliberately quits work to reduce his or her child support.

Cross v. Cross, 318 S.W.3d 187, 192 (Mo.App. W.D.2010) (citation and internal quotation marks omitted); See also Sherman v. Sherman, 160 S.W.3d 381, 384-85 (Mo.App. W.D.2004).

Here, the trial court found that the presumed child support amount as calculated by Form 14 should be $1,830 and that this amount had not been rebutted as unjust and inappropriate. The trial court found that Father had intentionally reduced his income in anticipation of the divorce, that he had threatened to hide and dispose of assets, and that he had dissipated assets. The trial court found that Father earned $126,234 in 2007 and $99,758 in 2008, and that he had produced no credible evidence of his actual income from 2009. The trial court found that Father has the ability and income earning potential to earn the sum of at least $100,000 annually ($8,333 per month) and imputed such as his income. The trial court stated that “after observing and considering the parties’ sworn testimony and after careful review of admitted exhibits ... that [Father] repeatedly was untruthful and engaged in numerous, intentional falsehoods and clearly reflected a propensity for lying such that the Court places virtually no weight upon [his] testimony.”

The trial court’s findings were supported by substantial evidence. Mother testified that Father’s reported earnings were $126,234 in 2007 and $99,758 in 2008. A trial court may use a party’s tax returns to determine income for purposes of calculating child support. Potts, 303 S.W.3d at 194. Mother testified that Father has a banking and finance degree, that Father has- been working in the mortgage and life insurance industries for years, and that Father has an insurance broker’s license. Father testified that he intended to pay off debt he had accumulated totaling over $550,000, indicating he expects to earn income. Mother testified that Father intentionally reduced his work hours and the attention paid to his business in anticipation of the divorce. Further, Father repeatedly threatened to hide and dispose of marital assets and to manipulate the dissolution proceedings to demonstrate a lower income. This evidence provides substantial evidence from which the trial court could conclude that Father was not prevented from meeting his earning potential due to forces beyond his control. Rather, Father purposefully engaged in conduct designed to avoid meeting his earning potential for the express purpose of manipulating the calculation of child support.

This case is very similar to AlSadi v. AlSadi, 823 S.W.2d 123, 126 (Mo.App. S.D.1992). In AlSadi, the evidence supported the trial court’s imputation of income to husband, notwithstanding the fact husband claimed to have been “laid off’ from his former position as an instrument technician due to a labor force reduction. Id. at 125. Husband also claimed a recent surgery impaired his future ability to work. Id. The trial court heard evidence suggesting that husband withheld child support during the pendency of the dissolution to attempt to coerce wife into a property settlement agreement. Id. at 126. Further, there was no evidence offered to the trial court suggesting husband had meaningfully sought employment utilizing his skills. Id. The court concluded that “[fjrom this and other evidence the trial court could draw an inference adverse to the Husband concerning his efforts to find more remunerative employment and that he was underemployed.” Id. Importantly, the court held that a parent cannot escape responsibility for child support by “voluntarily declining to work,” id. (citing Boyer v. Boyer, 567 S.W.2d 749, 751 (Mo.App. W.D.1978)), or by “deliberately limiting his work to reduce income.” Id. (citing Butler v. Butler, 562 S.W.2d 685, 687 (Mo.App. E.D.1977)) (holding reasonable inference that husband did not use best efforts to find more lucrative employment where husband withheld child support payments until ordered to do so and offered no evidence that he sought employment to utilize his skills).

Similarly, in Goodwin v. Goodwin, husband argued there was insufficient evidence to support imputing income to him. 746 S.W.2d 124, 126 (Mo.App. S.D.1988). Husband was in the real estate business, and the evidence indicated he had average annual commissions of in excess of $50,000 a year in the years preceding the dissolution. Id. at 127. In addition, the trial court heard evidence that husband was frequently absent from work immediately preceding the dissolution and that husband had “a declared intent to ‘work down what [was] owned’ so there would be nothing left at the time of the divorce.” Id. Though husband stressed that the year of the dissolution was “a bad year for real estate,” id., the trial court’s judgment imputing income was nonetheless supported by substantial evidence on this record. Id. Importantly, the trial court was not obligated to presume that any claimed down turn in the real estate market “would continue indefinitely into the future.” Id.

Father relies on Buchholz v. Buchholz, 166 S.W.3d 146 (Mo.App. S.D.2005), for the proposition that proof of a previous higher income alone is not a sufficient basis on which to impute income for child support calculation. Father claims that, just as in Buchholz, the evidence at trial was that his business had failed and that there was no evidence presented regarding positions for him in the community. Id. at 153-54. Father argues that, just as in Buchholz, Mother failed to prove that he had either failed to make a good faith effort at obtaining alternate employment or that he could generate the amount of income imputed to him. Id. at 154. Father’s reliance on Buchholz is misplaced. The court in Buchholz expressly distinguished its holding from a situation where there is “‘evidence to support a finding that the parent is deliberately limiting his or her work to reduce income.’ ” Id. at 156 (quoting Davis v. Dep’t of Soc. Serv., 21 S.W.3d 140, 141 (Mo.App. W.D.2000)). Of course, the evidence presented to the trial court in this case demonstrated that Father engaged in precisely such conduct. A trial court is free to impute income where the record establishes an attempt to evade parental responsibilities. See, e.g., Honderick v. Honderick, 984 S.W.2d 205, 212 (Mo.App. W.D.1999); State ex rel. Atkinson v. Anthony, 947 S.W.2d 832, 834-35 (Mo.App. W.D.1997). Mother was not obliged to prove that Father could generate the amount of income imputed to him when Father’s conduct and words provided all of the proof the trial court needed that Father was purposefully underemployed.

The trial court’s imputation of income to Father was supported by substantial evidence. Point one is denied.

Point II

In point two, Father contends that the trial court erred in awarding both retroactive child support and a monetary judgment for the past due child care bill. Father argues that he was held liable on the same debt twice because child care expenses were included in the child support calculation which was then applied retroactively. We disagree.

At the beginning of trial, the parties advised the trial court that all issues were resolved except child support, retroactive child support, and a debt for a past due child care bill. Mother testified that this debt was in the amount of $1,900 and asked the trial court to make the debt Father’s responsibility. Father testified that the debt was in dispute, but that he nonetheless believed it would be fair for the trial court to impose responsibility for payment of the debt on him.

Though Mother was obviously seeking an award of retroactive child support from Father, and though the evidence before the trial court for purposes of calculating child support included evidence of the cost of child care, Father never advised the trial court that he believed the unpaid child care bill would be duplicated if retroactive child support was awarded. “Even in a court-tried case, where a post-trial motion is not necessary to preserve an otherwise properly raised issue for appellate review, the' appellant must make some effort to bring the alleged error to the trial court’s attention.” McMahan v. Mo. Dep’t of Soc. Servs. Div. of Child Support Enforcement, 980 S.W.2d 120, 126 (Mo.App. E.D.1998) (emphasis added.) “With only rare exceptions, an appellate court will not convict a trial court of error on an issue that was never presented to the trial court for its consideration.” Id. at 126-27; see also SD Invs., Inc. v. Michael-Paul, L.L.C., 90 S.W.3d 75, 84 (Mo.App. W.D.2002); Scism v. Scism, 844 S.W.2d 506, 507 (Mo.App. E.D.1992). Because Father did not raise the prospect of a duplicative award with the trial court, the trial court was not given an opportunity to correct any claimed mistake, and this issue has not been preserved for our review.

Father relies on Rule 78.07(b) to relieve him from responsibility for failing to preserve this issue for appellate review. Rule 78.07(b) provides that in a non-jury case, neither a motion for new trial nor motion to amend the judgment is required to preserve any matter for appellate review. Father’s reliance on Rule 78.07(b) misses the point. It is not Father’s failure to file a motion for new trial or to amend the judgment that renders unpreserved the issue raised in Father’s second point relied on. Rather, it is Father’s failure to point out during the course of trial that the unpaid child care bill would be duplicated by an award of retroactive child support which has relegated this issue to one un-preserved for appellate review. This conclusion is even more appropriate where, as here, Father affirmatively advised the trial court that he believed he should be assessed responsibility for payment of the unpaid child care bill. Pickering v. Pickering, 314 S.W.3d 822, 834-35 (Mo.App. W.D.2010) (in court tried case where no Rule 78.07(b) post-trial motion is required, an argument still must have been raised with trial court to preserve substantive issue for appellate review, particularly where party has specifically requested the trial court to order that about which the party now complains.)

Even had Father preserved this argument for our review, Father would not prevail. The record is void of any evidence indicating when the unpaid child care bill was incurred. It does not appear that the bill was admitted as an exhibit at trial, and if it was, Father has not in any event made the bill available to this court for its review. We cannot determine from the record, therefore, whether the unpaid child care bill was incurred during the same period for which retroactive child support was awarded. As such, Father has not demonstrated even the threshold of evidence that would have been required to establish that the unpaid child care bill was duplicated by the award of retroactive child support.

Point two is denied.

Conclusion

We affirm the trial court’s judgment.

All concur.

      . We view the evidence in the light most favorable to the trial court's judgment and defer to the trial court’s credibility determinations. Potts v. Potts, 303 S.W.3d 177, 184 (Mo.App. W.D.2010).

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

      . We note that Father failed to include Form 14 in the legal record as required by Rule 81.12(c), instead including it in his appendix. Documents in an appendix to an appellate brief that are not contained in the record on appeal are not appropriately before this court for consideration. Washington v. Blackburn, 286 S.W.3d 818, 822 (Mo.App. E.D.2009).

      . Although not raised in his brief, at oral argument, Father argued that Mother only offered evidence regarding his gross income as opposed to his adjusted gross income. However, Father conceded that the amount imputed to him was within the range of the adjusted gross incomes in the tax returns that were exhibits at trial. As such, we And no error.

      . Father relies on several additional cases where there was insufficient evidence for the imputation of income. However, these cases either lacked evidence that the parent to whom income was imputed voluntary diminished his or her income, or lacked sufficient evidence to support the amount of the income imputed. Keck v. Keck, 820 S.W.2d 727 (Mo.App. W.D. 1991); Garrison v. Garrison (In re the Marriage of Garrison), 846 S.W.2d 771 (Mo.App. S.D.1993); Sherman v. Sherman, 160 S.W.3d 381 (Mo.App. W.D.2004); Jensen v. Jensen, 877 S.W.2d 131 (Mo.App. E.D.1994).

      . Father and Mother had been separated since October 15, 2008, but Mother did not file for dissolution until March 5, 2009. Retroactive child support was awarded to March 5, 2009. It is entirely possible that the unpaid child care bill was incurred during the period of the parties' separation and before the dissolution was filed.

      . At oral argument, Father asserted that the trial court found that the unpaid child care bill was for services during the pendency of this action. However, the judgment makes no such finding. The trial court found "[t]he parties have a child care debt of $1,900. Based on [Father's] failure to provide financial assistance to [Mother] and the minor children during the pendency of this cause, and [Father’s] greater income earning potential, it is appropriate that this debt be set off to [Father].”


author: PER CURIAM:

text:
    Aaron Michael KERCHEVAL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70970.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Laura G. Martin, Kansas City, MO, for Appellant.
    Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES E. WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Aaron Michael Kercheval appeals the circuit court’s judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We affirm. Rule 84.16(b).


text:
    Robert COCHRAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70933.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    S. Kate Webber, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, P.J., JAMES E. WELSH, and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Mr. Robert Cochran appeals the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. He claims his trial counsel and his appellate counsel were ineffective.

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


text:
    STATE of Missouri, Respondent, v. Leonard C. JACKSON, Appellant.
    No. WD 70932.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Frederick J. Ernst, Kansas City, MO, for Appellant.
    Richard A. Starnes, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Leonard Jackson appeals the circuit court’s judgment convicting him as a prior and persistent offender of domestic assault in the second degree, attempted robbery in the second degree, and false imprisonment. We affirm. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Bobby G. ROSS, Appellant.
    No. WD 70676.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Nancy A. McKerrow, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Mary H. Moore, Esq., Jefferson City, MO, for respondent.
    Before Division Two: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Bobby Ross appeals from his conviction after a jury trial of statutory sodomy in the first degree. § 566.062, RSMo. In his sole Point Relied On, Ross claims the trial court abused its discretion in overruling his objections to the testimony of two witnesses concerning out-of-court statements made by his minor victim, because the testimony was duplicative and improperly bolstered the victim’s testimony. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Mohammed L. EVANS, Appellant.
    No. WD 70118.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    S. Kate Webber, for Appellant.
    Mary H. Moore, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Mohammed Evans appeals from his conviction for stealing after a jury trial. We find sufficient evidence to support his conviction and affirm. No jurisprudential purpose would be served by a formal written opinion. However, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).

      . Two spellings for Mohammed Evans appear in the record on appeal. For consistency purposes, we use the spelling appearing on the trial court's judgment and sentencing.


text:
    Robert C. PROCTOR, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 71538.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Ruth Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Dora A. Fichter, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

We are not left with the definite and firm impression that the motion court’s denial of an evidentiary hearing on Proctor’s Rule 24.035 motion was a mistake. The court’s findings of fact and conclusions of law are not clearly erroneous. The denial of Proctor’s post-conviction relief motion is affirmed. Rule 84.16(b).


text:
    Joel FARRIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71753.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Ruth Sanders, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq., John M. Reeves, Esq., Jefferson City, MO, for respondent.
    Before Division Two: JOSEPH M. ELLIS, P.J., and ALOK AHUJA and KAREN K. MITCHELL, JJ.
   ORDER

PER CURIAM:

Appellant Joel Farris pled guilty to driving while intoxicated as a chronic offender, a Class B felony, and was sentenced to six years’ imprisonment. He filed a motion for post-conviction relief under Rule 24.035, which the trial court denied. Far-ris appeals, arguing that his sentence is void because the circuit court did not make a specific factual finding that he was a chronic offender. We affirm. Because a published opinion would have no prece-dential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    M & I MARSHALL & ILSLEY BANK, Appellant, v. SADER & GARVIN, L.L.C., et al., Respondents.
    No. WD 71399.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.

      Mark S. Carder and Nicholas J. Zlu-ticky, Kansas City, MO, for Appellant.
    James C. Morrow and M. Casey McGraw, Kansas City, MO, for Respondents.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   MARK D. PFEIFFER, Judge.

M & I Marshall and Ilsley Bank (M & I) appeals the order of the Circuit Court of Jackson County (trial court) granting Sad-er & Garvin, L.L.C.’s (S & G) motion to dismiss arbitration. In this interlocutory appeal, M&I argues that (1) the arbitration clause it relies upon was a valid and enforceable contract between the parties and (2) M & I did not waive its right to seek to compel arbitration. We affirm the trial court’s ruling and remand for further proceedings.

Background Facts and Procedural History

On December 17, 2007, S & G was retained by an individual who purported to be an executive of Waison Meters Group Limited (WMGL), a Chinese company, for the purpose of assisting WMGL in collecting delinquent payments from the company’s vendors. Two days later, on December 19, 2007, S & G received a Citibank “Official Check” from one of these vendors in the amount of $197,570.00. S & G was instructed by the claimed representative of WMGL to deposit the check less the firm’s $2,500.00 retainer fee and wire the remaining proceeds into the Korean account of a third entity, Sally S. Trading Company. S & G deposited the check into their bank (M & I) the same day they received it, directing $2,500.00 to be deposited into their general operating bank account and $195,070.00 into the Interest on Lawyer’s Trust Account (IOLTA) they maintained on behalf of their clients. Upon S & G’s request, on December 20, 2007, M & I wired $195,030.00 to the Industrial Bank of Korea. Shortly after the wire was sent, it became apparent that the check was fraudulent. However, efforts to recall the wire transfer or otherwise reclaim the funds were unsuccessful.

M & I charged back the credit from the December 19th deposit to S & G’s IOLTA. Since the IOLTA, which had $11,941.95 of funds belonging to S & G’s clients, had an insufficient balance to cover the deficit, M & I then demanded that S & G make good on the deficit of $178,968.56. S & G was unable to do so, and on February 26, 2008, M & I filed a petition alleging that S & G had breached its bank account agreement with the bank and that Neil Sader (Sader) and Gregory Garvin (Garvin) had breached their individual guaranties of the account. In their responsive pleading filed on April 7, 2008, the defendants counterclaimed, asserting in four alternatively pled counts that M & I had (1) impermissibly converted the IOLTA funds; (2) breached the document entitled “Rules For Deposit Accounts And Funds Availability Policies” by making the funds from the fraudulent check available too early; (3) breached the guaranty agreement by “setting-off’ funds that were held in trust; (4) negligently failed to follow M & I’s “Rules For Deposit Accounts And Funds Availability Policies” and, consequently, negligently failed to ascertain that the deposited check was fraudulent and negligently failed to alert S & G of common check scams such as the one at issue.

M & I filed its reply to the counterclaim on May 9, 2008, and included an affirmative defense alleging the right to submit the counterclaim to arbitration. However, M & I did not move to compel arbitration at that time. From May 9, 2008, to April 20, 2009, the case moved forward with no demand by M & I to compel arbitration. During this period of time, M & I amended its answer with leave of the trial court, designated expert witnesses, objected to S & G’s expert witness designation, and the litigants on both sides of this dispute propounded interrogatories, document requests, and deposition notices. On February 4, 2009, the original trial date of April 13, 2009, was continued and a jury-trial was scheduled for August 24, 2009.

On April 20, 2009, S & G requested leave to file an amended counterclaim that asserted a claim for punitive damages. Nine days later, on April 29, 2009, M&I filed a demand for arbitration with the American Arbitration Association (AAA). On June 3, 2009, the trial court initially denied S & G’s motion for leave to file an amended counterclaim. On June 6, 2009, S & G filed a motion to dismiss, or in the alternative, application to stay arbitration. On June 11, 2009, S & G filed a motion for reconsideration, again seeking leave of court to amend the counterclaim. On June 16, 2009, M&I filed a motion to stay litigation of S & G counterclaims and compel arbitration. On June 24, 2009, M&I filed a motion for summary judgment as to its originally filed petition. Over the next two months, both parties filed numerous legal suggestions in support and in opposition to the pending motions of the respective parties. On August 6, 2009, S & G filed legal suggestions in support of the motion to dismiss arbitration in which S & G argued that it had never agreed to the arbitration agreement that M&I was attempting to compel, and as such, the alleged arbitration agreement was unenforceable. On August 21, 2009, the trial court held a hearing on the various motions before it. M&I presented no evidence supporting an express agreement to arbitrate between the parties and, instead, argued that S & G’s counterclaim allegations constituted a judicial admission of the existence and enforceability of the arbitration agreement. The trial court issued an order denying M & I’s motion for summary judgment and motion to compel arbitration and granting S & G’s motion to dismiss arbitration and motion for reconsideration. Accordingly, the trial court granted leave to S & G to amend their counterclaim. M&I timely filed this interlocutory appeal, and S & G filed a motion to dismiss the appeal with this court, arguing that this court lacks jurisdiction.

Jurisdiction

Prior to addressing the propriety of the trial court’s order granting S & G’s motion to dismiss arbitration, we must first determine whether this interlocutory appeal is properly before this court. “In Missouri, the right to appeal is purely statutory, and where a statute does not confer the right to appeal, no appeal can exist.” State v. Moad, 294 S.W.3d 83, 86 (Mo.App. W.D.2009). Section 435.440.1(1) and (2) permit appeal of an interlocutory order “denying an application to compel arbitration made under section 435.355,” or “granting an application to stay arbitration made under subsection 2 of section 435.355,” or where “the substantive effect” of the order results in denying or staying arbitration.

S & G argues that section 435.440 does not confer the right to submit an interlocutory appeal in this case because the trial court order did not deny “an application to compel arbitration” or grant an order “to stay arbitration.” S & G argues that because the trial court’s order granted their motion to dismiss the arbitration and did not deny an action to compel arbitration or order arbitration stayed, the statute is not implicated and an interlocutory appeal is not proper. In essence, S & G is arguing that it is the label a trial court uses in denying a motion to compel arbitration that is controlling and not the effect of the order. We disagree. Though the interlocutory order being appealed to this court is styled as a motion to dismiss arbitration, the character of a pleading is “ ‘determined by its subject matter and not its designation.’ ” Mood, 294 S.W.3d at 86 (quoting Johnson v. Johnson, 112 S.W.3d 460, 464 (Mo.App. W.D.2003)). We therefore look to the substance of the pleading to ascertain its nature. Weber v. Weber, 908 S.W.2d 356, 359 (Mo. banc 1995). The substantive effect of the trial court granting S & G’s motion to dismiss arbitration was to deny M & I’s claimed right of arbitration. Section 435.440.1 therefore provides M & I with a statutory right of interlocutory appeal. S & G’s motion to dismiss this appeal is denied.

Standard of Review

Appellate review of a trial court’s order denying arbitration is a question of law, which we review de novo. Lawrence v. Beverly Manor, 273 S.W.3d 525, 527 (Mo. banc 2009). The substantive law of this state governs the issues of the existence, validity, and enforceability of any purported arbitration contract. Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 21 (Mo.App. W.D.2008) (citing State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 856 (Mo. banc 2006)). The usual rules of state contract law and canons of contract interpretation apply to the issue of whether or not the parties have entered into an enforceable agreement to arbitrate. Id. (citing to Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005)).

Arbitration Cannot Be Compelled in the Absence of an Agreement to Arbitrate

When faced with a motion to compel arbitration, we must consider three factors. First, we must “determine whether a valid arbitration agreement exists.” Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006). Second, if a valid arbitration agreement exists, we must determine “whether the specific dispute falls within the scope of the arbitration agreement.” Id. Third, if a valid arbitration contract exists, and if the subject dispute is within the scope of the arbitration provision, then we must determine whether the arbitration agreement is subject to revocation under applicable contract principles. See Kansas City Urology, P.A. v. United Healthcare Servs., 261 S.W.3d 7, 11, 14 (Mo.App. W.D.2008).

The first factor, whether or not a valid arbitration agreement exists, is dis-positive of this appeal. “Arbitration is a matter of contract, and a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate.” Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435 (Mo. banc 2003). “Absent a contract to arbitrate, no party has a unilateral right to impose on another party a requirement of arbitration as the sole procedure for dispute resolution.” Morrow, 273 S.W.3d at 21. “It is a firmly established principle that parties can be compelled to arbitrate against their will only pursuant to an agreement whereby they have agreed to arbitrate claims.” Id.

Motions to compel or stay arbitration are tried in summary proceedings, section 435.355.2, and “ ‘[wjithout the usual formalities [and] without a jury.’ ” Nitro, 194 S.W.3d at 351 (quoting Black’s Law DictionaRY 1476 (8th ed.1999)). In such summary proceedings where one of the parties disputes the existence of the contract of arbitration, the parties may present evidence, including but not limited to documents, affidavits, and deposition transcripts to resolve the factual disputes. Id. at 352. After one party has challenged the existence of an enforceable agreement to arbitrate, the trial court must determine that issue based upon the evidence before it. Creech v. MBNA Am. Bank, N.A., 250 S.W.3d 715, 717-18 (Mo.App. S.D.2008).

The problem with M & I’s position in this case is that M&I has failed to present any evidence that an agreement to arbitrate was affirmatively entered into between M&I and S & G. Instead, M&I places all of its “eggs in one basket”— namely, M&I claims that S & G has judicially admitted the existence of a valid and binding arbitration agreement in its pleadings. We conclude, however, that S & G’s pleadings do not constitute a judicial admission, and consequently, M & I’s failure to present any evidence of an agreed-upon contract to arbitrate at the August 21, 2009 hearing is fatal to its claimed right of arbitration, and the trial court properly concluded that “a contract between the parties with regard to the arbitration of disputes ... was never agreed to or bargained for by [S & G].”

M&I Rules for Deposit Accounts and Funds Availability Policies

It is undisputed that on or about January 31, 2008 (i.e. after the overdraft incident), M & I’s legal counsel forwarded S & G a copy of a document entitled “Rules For Deposit Accounts And Funds Availability Policies.” The only testimonial evidence that the trial court had from S & G’s representative was that the representative did not recall receiving this document pri- or to January 31, 2008. It is undisputed that the document was not signed by any representative of S & G. The document itself refers to “Rev (11/07),” implying that it did not even come into existence until one month prior to the overdraft incident. The document is ten pages in length, and the font size of the typewritten text appears to be a nine-point font size or less. Paragraph l.c of the document is an “Arbitration Disclosure,” and paragraph 29 of the document describes the terms of arbitration. There was no testimonial evidence, submitted by way of affidavit or deposition transcript of any witness, stating that the document was forwarded to S & G before the overdraft incident or that the terms of arbitration had been expressly agreed upon by S & G. There was, in fact, no other documentary evidence submitted to the trial court in any fashion demonstrating that S & G had expressly agreed to the terms of arbitration or that it had notice of the purported terms of arbitration prior to the overdraft incident.

This document, however, is the document relied upon by M & I to assert its right to compel arbitration (1) fourteen months after filing its original petition against S & G, Sader, and Garvin; (2) fourteen months after pursuing and responding to discovery and expert witness designations that related to issues directly and exclusively covered by M & I’s alleged right of arbitration; and (3) approximately two months after the case had been set for trial — for the second time.

Judicial Admission

M & I concedes that it did not present any evidence to the trial court that the parties had expressly agreed to the purported contract of arbitration, though at oral argument M <& I’s counsel indicated that M & I possessed such evidence at the time of the August 21, 2009 hearing and could have presented such evidence had it chosen to do so. Instead, M & I argues that S & G’s pleadings constitute a judicial admission that S & G had agreed to the contract of arbitration. We disagree.

In their counterclaim, S & G, Sader, and Garvin pled four alternative counts of relief against M & I. Count I pled conversion and Count III pled breach of an alleged guaranty agreement between the parties. Counts II and IV alternatively pled that M & I breached or negligently failed to follow the document entitled “Rules for Deposit Accounts and Funds Availability Policies.” The only paragraph of the Counterclaim that even refers to the term “contract” is paragraph 34 of the Counterclaim, to which M & I’s response was: “M & I denies the allegations contained in Paragraph 34 of the Counter-Claims.” M & I’s only other references (in its Reply to Counterclaim) to the document that is now purported to constitute the expressly agreed-upon contract of arbitration are found at paragraphs 33 and 58 of its Reply to Counterclaim, to-wit:

33. The terms of the Funds Availability Policy for Business Checking Accounts document speak for themselves and are not fully stated in Paragraph 33 of the Counter-Claims. M & I denies any allegations contained in Paragraph 33 of the Counter-Claims that are not inconsistent with the terms of the document.
58. All the Counter-Claims are subject to arbitration pursuant to paragraph 29 of the Funds Availability Policy for Business Checking Accounts agreement between M & I and S & G. The Counter-Claims should be stayed pending disposition of all arbitrable claims pending in this action pursuant to that provision.

These pleadings do not constitute a judicial admission for several reasons.

First, a judicial admission requires a specifically pled allegation by one party that is admitted by the other party. See Creech, 250 S.W.3d at 717; J.H. Berra Paving Co. v. City of Eureka, 50 S.W.3d 358, 362 (Mo.App. E.D.2001). That has not occurred in the pleadings of the present case. Although S & G pled the existence of a contract that was breached by M & I, M & I denied these allegations in its response to this allegation of the counterclaim. M&I could have “admitted” that a contract existed while denying that it breached the contract, but M & I did not do so. Instead, M&I denied all of the allegations relating to the paragraph that alleged the existence of a contract and a breach thereof. Next, in paragraph 33 of its Reply to Counterclaim, M&I refers to the “Funds Availability Policy for Business Checking Accounts” as a “document,” not as an arbitration “agreement.” Finally, the paragraph 58 affirmative defense refers to the arbitration “agreement” as the “Funds Availability Policy for Business Checking Accounts,” not the “Rules for Deposit Accounts and Funds Availability Policies” that it now asserts is the arbitration “agreement.” In fact, there is a section on pages 9-10 within the “Rules for Deposit Accounts and Funds Availability Policies” document titled “Funds Availability Policy for Business Cheeking Accounts,” but that section has no arbitration provision. In short, these pleadings are anything but a clear allegation of the existence of an agreed-upon arbitration contract and a corresponding admission of the existence thereof.

Second, the context of the pleadings of S & G’s Counterclaims are such that Counts II and IV are alternatively pled Counts, one alleging the document in question is a contract that was breached and the other alleging that the same document is nothing more than a bank policy that M&I negligently failed to follow. Even in the breach of “contract” Count, S & G never alleged that the terms of the “contract” were expressly agreed to. Instead, the “contract” is prefaced as a “document” that was provided to S & G by M & I’s counsel after the overdraft event. The sum total of the Counterclaims was that S & G had genuine doubt as to the facts and the effect thereof, and hence, S & G pled multiple counts of relief in the alternative. “Rule 55.10 clearly contemplates that different and inconsistent theories of liability may be pleaded.” Mays-Maune & Assocs., Inc. v. Werner Bros., Inc., 139 S.W.3d 201, 206 (Mo.App. E.D. 2004). See also Trien v. Croasdale Constr. Co., 874 S.W.2d 478, 481 (Mo.App. W.D.1994) (“[T]wo theories may of course be pleaded in the same petition, but at some point an election must be made.”). “ ‘[Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader. The pleader states [the] facts in the alternative because he is uncertain as to the true facts, so that he is not ‘admitting’ anything other than his uncertainty....’” Mays-Maune, 139 S.W.3d at 207 (quoting 29 AM. JUR.2d Evidence § 692 (1967)).

The pleadings in question do not rise to the level of a judicial admission by S & G that a valid arbitration contract existed. In addition, however, fifteen days before the hearing of August 15, 2009, S & G specifically filed legal suggestions in which S & G argued that “there is no contract in place that would require [S & G’s] Counterclaim be submitted to arbitration.” These same legal suggestions argued that the purported arbitration contract had not been agreed and consented to and that the document containing “The Rules” was nothing more than “the understanding or supposition of one of the parties.” Ultimately, S & G argued that “in order to determine whether the ‘arbitration provision’ relied upon by M & I is binding upon the parties, the Court must first and foremost determine whether ‘the Rules’ are, in fact, a contract between the parties.”

In short, S & G had not judicially admitted the existence of a valid arbitration contract and, instead, argued to the contrary. M&I knew this prior to the hearing of August 21, 2009, and chose not to introduce any evidence that such an arbitration contract existed. Because there is no evidence to support the existence of a valid arbitration contract between the parties, the trial court did not err in concluding that such an arbitration contract between the parties did not exist.

M & I’s points on appeal are, therefore, denied.

Conclusion

There was no evidence of the existence of a valid arbitration agreement between the parties, and accordingly the trial court did not err in granting the motion to dismiss arbitration below. M & I’s interlocutory request for appellate relief with this court as to the trial court’s order of August 21, 2009, is denied, and this cause is remanded for further proceedings consistent with our ruling today.

JAMES M. SMART, JR., Presiding Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . M & I states that the reason M & I sought to compel arbitration as to the counterclaim and not as to the original petition was because the claimed arbitration agreement only related to alleged breach of contract between M&I and S & G and not the guaranty agreement between Sader or Garvin in their individual capacities as guarantors.

      . The trial court’s order specifically stated that:
      [T]he [trial court] finds that the arbitration clause in the document delineating the bank’s rules is not sufficient to constitute a contract between the parties with regard to the arbitration of disputes as it was never agreed to or bargained for by Defendants. Even if this were not the case, Plaintiff has waived their arbitration argument by engaging in extensive discovery relating to the issues involved in this case.

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

        . It is in evaluating this third factor that our courts discuss whether a contract should be revoked because it is procedurally and substantively unconscionable. However, the issue of whether an arbitration contract should be revoked because it is unconscionable is never reached if the agreement is determined under the first factor to lack the necessary indicia of a valid and enforceable contract.

      . All of M & I's points on appeal argue that (1) there was an agreed-upon and enforceable contract of arbitration between the parties; and (2) M & I did not waive its right of arbitration. Because we conclude that the trial court properly concluded that there was no evidence of an agreement to arbitrate, we conclude that there is not, in fact, an enforceable contract of arbitration, and we need not reach any issues relating to waiver.

      . We do not reach the issue of whether the Missouri Uniform Arbitration Act (MUAA) or the Federal Arbitration Act governs issues relating to arbitration notice requirements in the case below, but find it noteworthy that section 435.460 of the MUAA requires the arbitration notification to be in a ten-point font size and in all capital letters placed adjacent to, or above, the space provided for signatures. Were the subject provision to be governed by the MUAA, it clearly would fail. This determination, however, is not necessary to our ruling today.

      . Though we do not reach the issue of waiver, it is no coincidence that the trial court expressly concluded that an alternative basis for denying arbitration in its order was that M & I had waived any right it had to seek to compel arbitration.


text:
    Bernice M. STARRY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71557.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.

      Craig A. Johnston, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Dora A. Fichter, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Bernice Starry appeals the judgment order denying her Rule 24.035 motion after her probation was revoked and she was remanded to the custody of the Missouri Department of Corrections. We reverse and remand.

Factual Background

On October 22, 2001, Starry pled guilty in Miller County Circuit Court to the class C felony of possession of a controlled substance (more than thirty five grams of marijuana), Section 195.202. Pursuant to her guilty plea, the circuit court sentenced Starry to five years in the Missouri Department of Corrections, with execution of the sentence suspended, and she was placed on five years of probation.

On October 17, 2006, a probation violation hearing was held, which eventually led the circuit court on April 16, 2007, to extend Starry’s probation for one year.

On November 6, 2007, the circuit court issued a warrant for Starry’s arrest, and on June 17, 2008, the Court revoked her probation and ordered Starry to serve her prison sentence.

Starry filed a pro se motion for post-conviction relief on October 22, 2008, which was subsequently amended by counsel. After Starry waived an evidentiary hearing, the motion court issued its Findings of Fact, Conclusions of Law, and Judgment on September 16, 2009, which denied Starry’s post-conviction relief motion.

Standard of Review

In determining whether the motion court erred in denying Starry’s motion for post-conviction relief, our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k). Error is clear when the record definitely and firmly indicates that the circuit court made a mistake. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

Analysis

In her sole Point Relied On, Starry argues that the circuit court erred in denying her post-conviction relief motion because, inter alia, the circuit court exceeded its statutory authority in revoking her probation in 2008 because pursuant to Missouri law the total time on any felony probation, including extension, shall not exceed five years plus one additional year, resulting in her probation expiring on October 21, 2007, before the probation violation and warrant were filed on November 6, 2007. We agree.

Section 559.016 makes clear that the maximum time Starry could be placed on probation was six years, when it states the following:

1. Unless terminated as provided in section 559.036, the terms during which each probation shall remain conditional and be subject to revocation are:
(1)A term of years not less than one year and not to exceed five years for a felony;
3. The court may extend a period of probation, however, no more than one extension of any probation may be ordered except that the court may extend the total time on probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of his or her probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section plus one additional year if the defendant admits or the court finds that the defendant has violated the conditions of his or her probation.

(Emphasis added.)

Section 559.036.2, which also pertains to the duration of probation, repeats this prohibition that “[tjotal time on any probation term, including any extension shall not exceed the maximum term established in section 559.016.” See also Andrews v. State, 282 S.W.3d 372, 377 (Mo.App. W.D.2009).

“Jurisdiction to revoke probation normally ends when the probationary period expires.” Stelljes v. State, 72 S.W.3d 196, 200 (Mo.App. W.D.2002). Once the term of probation expires, the circuit court has no authority over a probationer “ ‘for any purpose, whether to cite him for probation violations, revoke probation, or order execution of the sentence previously imposed.’ ” State ex rel. Limback v. Gum, 895 S.W.2d 663, 664 (Mo.App. W.D.1995) (quoting State ex rel. Musick v. Dickerson, 813 S.W.2d 75, 77 (Mo.App.1991)).

Here, Starry was placed on a five year term of probation on October 22, 2001. “A term of probation commences on the day it is imposed.” Section 559.036.1. Even when assuming that the circuit court properly extended her probation for an additional year, Starry’s probation expired on October 21, 2007. Thereafter, the circuit court did not have statutory authority over Starry to revoke her probation.

We are cognizant of the fact that the “power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs pri- or to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.” Section 559.036.6. In this case, the circuit court indisputably took no affirmative action to revoke Starry’s probation until November 6, 2007, when it issued an arrest warrant for Starry, which was after Starry’s probation period expired as a matter of law on October 21, 2007. By waiting until November 6, 2007, to take action on her probation case, the circuit court lost the statutory authority to revoke Starry’s probation and to order her to serve her five year sentence. Id.; see also Wesbecher v. State, 863 S.W.2d 2, 5 (Mo.App. E.D.1993) (“[A]ny action taken by the trial court following that date is absolutely void” if “the formal revocation procedures were [not] initiated during the probationary period.”).

The State advances two separate theories to support its argument that the court had authority to hold the probation revocation hearing on June 17, 2008, neither of which has any merit. To begin, the State argues the Starry waived this issue by failing to raise the claim in her motion before the motion court. The State argues Starry’s argument on appeal is different from the grounds she asserted in her post-conviction motion. Rule 24.035(d) states that the motion “shall include every claim known to movant for vacating, setting aside, or correcting the judgment or sentence.” Here, Starry’s amended motion set forth the very argument advanced on appeal, namely that “[t]he trial court lacked jurisdiction to revoke Movant’s probation and execute sentence because Mov-ant’s probationary term had already expired, and the Court’s jurisdiction was not extended by operation of Section 599.036.6.”

The State seizes on the language of one sentence in Starry’s amended 24.035 motion to support its theory that this claim was somehow waived. Specifically, the State highlights the argument in the motion that “Movant’s extended one-year probationary period had expired two months before the Court held a hearing and entered an order of revocation on June 17, 2008.” (Emphasis added.) But the fact that Starry’s probation had actually expired nearly eight months prior to the court’s order of revocation does not help the State because it fails to cite to any persuasive authority that this discrepancy somehow precludes Starry’s claim on appeal. Ultimately, the circuit court was placed on notice by Starry’s post-conviction relief motion that she claimed when the court revoked Starry’s probation it acted outside of its statutory authority.

Finally, the State argues “the court’s jurisdiction to revoke appellant’s probation did not expire on October 21, 2007, because the court suspended appellant’s probation twice by issuing warrants for appellant’s arrest.” The State does not dispute that the warrant in question here was not issued until November 6, 2007, which was after Starry’s probation expired on October 21, 2007 (during a time when her probation was not suspended). However, because the circuit court issued warrants for Starry for alleged violations of probation at various times during her six years on probation, the State argues that this somehow empowered the court to retain statutory authority over Starry beyond the six year maximum period dictated by Section 559.016. Basically the State argues that each period for which there was a warrant out for a probation violation that the probation was stayed and these periods are added to the end of the probation.

The State fails to cite any authority to support this proposition, and for good reason because Section 559.016.3 is unambiguous that “[t]otal time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section [five years] plus one additional year.” Id. (emphasis added); see also State ex rel. Limback, 895 S.W.2d at 664 (holding that Section 559.016 and 559.036, prior to the 2005 amendments, “clearly establish that the maximum time which relator could be placed on probation was five years”). Indeed, we expressly rejected a similar tolling argument in State ex rel. Limback v. Gum, 895 S.W.2d 663, 665 (Mo.App. W.D.1995) (“In response to this chronological barrier to jurisdiction, respondent contends that relator’s probationary period did not really expire on April 27, 1992, because the running of the probationary period was ‘tolled’ from November 26, 1990 through March 29, 1998, and from November 22, 1998 through August 13, 1994, when relator was subject to outstanding capias warrants. Respondent, however, cites no legal authority in support of his summary contention that the running of the probationary period can somehow be ‘tolled’ by such circumstances.”).

For all of these reasons, we conclude that that the motion court’s judgment, which denied Starry’s post-conviction relief motion, was clearly erroneous.

Conclusion

The motion court’s denial of Starry’s claim is reversed, and the cause is remanded with instructions to enter an order vacating the judgment revoking her probation and discharging Starry from incarceration in this matter.

All concur.

      . Unless otherwise indicated, rule citations are to the Missouri Rules of Criminal Procedure (2010).

      . All statutory citations are to RSMo 2000 as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      .Starry challenges whether the circuit court was empowered to so extend her probation pursuant to Missouri law. For the reasons explained below, we need not reach this disputed issue.

      . Section 559.016 was amended in 2005 to allow courts to extend a five year term of probation for one year; however, because the parties do not dispute that the amended version of the law is applicable to resolve the instant dispute we need not delve into the merits of whether the amended version of the statute should be applied "retroactively” to probationers who pled guilty and were placed on probation prior to the amendment.

      . "Though the cited cases use the word jurisdiction,' we read them in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), to be that the court has exceeded its statutory authority. Id. at 253 (making clear that prior cases labeling mere error to be "jurisdictional” no longer should be followed as there are only two types of jurisdiction in Missouri state courts: personal and subject matter.).” State ex rel. Whittenhall v. Conklin, 294 S.W.3d 106, 108, n. 2 (Mo.App. S.D.2009). Starry's proper "claim is that the court exceeded statutory authority.” Id.

      . Although the language in Wesbecher uses the word "void,” in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) the actions taken by the trial court were in excess of its statutory authority.

      . The State cites to our holding in Bode v. State in an attempt to support its argument. That case is easily distinguishable from the instant matter for numerous reasons, including the fact that we held in Bode that appellant was not entitled to relief on his 29.15 motion because "appellant only claims generally that a motion for a new trial should have been filed, without specifying the underlying trial errors on which the motion should have been made,” and that therefore “there is no way of ascertaining whether the motion, if made, would have been granted, such that the appellant failed to allege deficient performance of trial counsel requiring post-conviction relief.” 203 S.W.3d 262, 268 (Mo.App. W.D.2006). Here, in contrast, Starry made a specific legal claim in her Rule 24.035 motion, pursuant to which she is entitled to relief.

      . The State also cites language added to Section 559.036.5 in 2005 to support its argument that the running of Starry’s probation was suspended by the issuance of the various arrest warrants for probation violations in 2006 and these periods for which probation was suspended should be added to the end of the probation term. The State's argument is flawed, however, even if we assume that the 2005 statutory amendment can be applied to Starry's probation, which commenced in 2001. The language of Section 559.036.5 on which the State relies provides that if the court is notified of a probation violation, "the court may immediately enter an order suspending the period of probation and may order a warrant for the defendant's arrest.” The statutory language makes clear that "an order suspending the period of probation” is separate and distinct from "a warrant for the defendant's arrest.” In 2006 the court issued various warrants for the defendant's arrest, but nothing in the record indicates that the court also entered an order suspending the period of Starry’s probation. We reject the State's argument that, that under the 2005 amendment to Section 559.036.5, simply by issuing an arrest warrant that the court has effectively suspended the term of Starry’s probation.

      . We do not wish to insinuate that there are no circumstances under which a defendant can remain under the circuit court's supervision on probation beyond this time period. For example, in Williams v. State, the Southern District dealt with the situation wherein defendant had absconded from the jurisdiction while on probation. 927 S.W.2d 903, 904 (Mo.App. S.D.1996). Notwithstanding the fact that the defendant in Williams was placed on a five year term of probation in April 1986, the Court properly concluded that the circuit court retained statutory authority to revoke defendant’s probation in March 1993 in light of the fact that defendant had absconded to California and was not apprehended until January 1993. Id.

      What makes Williams distinct from the instant case is that while the probationary period in Williams was ongoing, in July 1986, the trial court suspended the defendant’s probation and issued a warrant. Id. Here, the trial court failed to suspend Starry's probation until after her term of probation had expired as a matter of law.


text:
    James E. LAZZARINE and Arleda Lazzarine, Appellants, v. Jack SAYERS and Gloria Sayers, Respondents.
    No. WD 71645.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    R. Scott Gardner, Sedalia, MO, for Appellants.
    Jerry W. Potocnik, Blue Springs, MO, for Respondents.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This is an adverse possession case. The issue is whether the trial court erred in finding that the respondents had demonstrated actual possession of the subject property. We hold that the respondents did show actual possession. Therefore, we affirm. Rule 84.16(b).


text:
    Peter MANYOTHWANE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71474.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Ruth Sanders, for Appellant.
    James B. Farnworth, for Respondent.

      Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   ORDER

PER CURIAM:

Peter Manyothwane appeals from the denial of his Rule 24.035 motion for post-conviction relief after waiving his right to an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Brian S. WRIGHT, Appellant.
    Nos. WD 71548, WD 71549.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Jonathan L. Laurans, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Brian S. Wright appeals the judgment of the Circuit Court of Bates County in which he was found guilty of sexual abuse, section 566.100, RSMo 2000, and false imprisonment, section 565.130, RSMo 2000; and sentenced to six years imprisonment and one year in county jail, to run concurrently. On appeal, Wright presents four points, in which he argues that: (1) the State did not have sufficient evidence to prove the “forcible compulsion” element of sexual abuse; (2) the State did not have sufficient evidence to prove that he knowingly restrained the victim; (3) the State should not have been allowed to introduce evidence of his prior adjudications and allegations of stalking; and (4) the testimony of the victim was so inherently contradictory as to be objectively unreasonable. We affirm in this per curiam order and have provided the parties a memorandum explaining our ruling. Rule 30.25(b).


author: PER CURIAM.

text:
    In the Matter of the Care and Treatment of: Lujuan TUCKER.
    No. ED 93398.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Emmett Queener, Columbia, MO, for appellant.
    James Layton, Jayne Woods, co-counsel, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Lujuan Tucker (“Appellant”) appeals from a judgment entered upon a jury verdict finding him to be a sexually violent predator (“SVP”), pursuant to Sections 632.480-.513. The probate court ordered Appellant to the custody of the Missouri Department of Mental Health (“the DMH”) for control, care and treatment. We find no error and affirm.

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. James A. SMITH, Defendant/Appellant.
    No. ED 93438.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Brocea L. Smith, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

James A. Smith appeals from the trial court’s judgment entered upon a jury verdict convicting him of possession of a controlled substance. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court committed no plain error. Rule 30.20; State v. Washington, 260 S.W.3d 875, 879 (Mo.App. E.D.2008). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . All rule references are to Mo. R.Crim. P.2008, unless otherwise indicated.


text:
    Thomas GALLAGHER, Appellant, v. Ann GALLAGHER, Respondent.
    No. ED 93447.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Gregory M. Gantz, Chesterfield, MO, for appellant.
    Maia Brodie, Clayton, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Thomas Gallagher (“Father”) appeals from the judgment of the trial court granting the motion of Ann Gallagher (“Mother”) for attorney fees and reimbursement of college expenses.

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

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


text:
    Leland LACHANCE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93451.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Gwenda R. Robinson, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, John W. Grant-ham, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Leland LaChance appeals from the motion court’s denial, following an evidentiary hearing, of his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.035. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court is not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2009, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. John T. TRAUTWEIN, Appellant.
    No. ED 93512.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Matthew Ward, Columbia, MO, for appellant.
    Chris Koster, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before: SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

John T. Trautwein appeals from the judgment entered upon a jury verdict finding him guilty of driving while intoxicated, § 577.010 RSMo, and driving while his license was revoked, § 302.321 RSMo. No jurisprudential purpose would be served by a written opinion. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 30.25(b).