author: HOWARD, Judge.

text:
    STATE of Missouri, Respondent, v. David L. O’HAVER, Appellant.
    No. WD 57419.
    Missouri Court of Appeals, Western District.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Kent Denzel, Asst. State Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for respondent.

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

David L. O’Haver appeals from his convictions of second degree murder, § 565.021, and first degree arson, § 569.040. O’Haver raises three points on appeal. First, he contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence, in accepting the jury’s verdicts on murder and arson, and in sentencing him on both counts because there was insufficient evidence that he started the fee that killed Jeanne O’Haver, his wife. Second, he contends the trial court plainly erred in failing to declare a mistrial sua sponte based on alleged improper comments by the prosecutor. Third, Appellant claims the trial court erred in overruling his objection to the prosecutor’s alleged improper argument regarding Appellant’s belief about insurance proceeds.

We affirm.

Facts

Viewed in the light most favorable to the verdicts, the evidence at trial was as follows. On April 7, 1998, Appellant and his wife, Jeanne O’Haver, got home from having worked the 11:00 p.m. to 7:00 a.m. shift at Perry Machine and Die. After they did their chores, Jeanne had a drink of tequila, and Appellant went to bed.

Shortly before 10:00 a.m., Jeanne answered a phone call from the elementary school where Appellant’s son, Brandon, attended school. The principal called to discuss Brandon’s suspension from the school bus. During the conversation, Jeanne told the principal, “You cannot believe how bad it is at this house.” Although Jeanne had been drinking alcohol, at the time of the call she did not sound intoxicated.

After the phone call, Jeanne woke up Appellant. She told him that she couldn’t take it anymore, and that she wanted Appellant to pack his and Brandon’s stuff and get out. After some discussion, Appellant began to pack up some of his and Brandon’s belongings. He loaded the items into the back of his truck.

At one point, when Appellant went outside, he saw that a fire had been started in the yard. He eventually told police that his wife had put some things out in the yard, poured gas on them, and set them on fire. Among the items in the fire were Brandon’s mattress, some magazines, and some toys. Eventually, Appellant went back to the house and asked Jeanne for a drink of water.

Appellant testified that he drove directly to Brandon’s school at that point. He arrived at the school sometime between 12:35 p.m. and 12:40 p.m. That drive, going the speed limit, takes approximately seventeen minutes. Thus, the evidence showed that Appellant may have left his house sometime between 12:18 p.m. and 12:28 p.m.

At some time between 12:15 p.m. and 12:17 p.m., Audrey Nutt, who lived approximately two miles from the O’Haver home, saw a “great big mushroom of smoke go up” in the direction of the house. At this point, the fire had been burning somewhere between ten and thirty minutes, which meant that it started at some point between 11:45 a.m. and 12:07 p.m., before Appellant left for the school.

Ms. Nutt got in her car and drove toward the fire. Eventually she saw that the O’Haver home was on fire and flames were coming out between the roof and the siding. Thereafter, she contacted fire officials, who found Jeanne’s body in the trailer. Jeanne had died of smoke inhalation, and her body had burned beyond recognition.

In the meantime, when Appellant got to Brandon’s school, he appeared angry, aggressive, and as if he were in a “great big hurry.” He saw Brandon, told him to clean out his desk and then told school officials that Brandon would not be returning to that school. Appellant and Brandon then went to Appellant’s parents’ home, where Appellant received a call that his home was on fire.

When Appellant arrived on the scene, Jeanne’s daughter, Heather Woodrow, was there. Her brother had come to her house and told her that their mother’s home was on fire. Ms. Woodrow’s brother approached Appellant and told him that Jeanne was dead.

The fire investigation revealed that the house fire had been started at the front door, where a gas product had been poured. There was no physical connection between the fire that had burned in the yard and the house fire. In addition, a nozzle like the type found on a plastic gas can was found in the yard.

On July 8, 1998, Appellant was charged by information with first degree murder, § 565.020, and first degree arson, § 569.040. The case was tried before a jury. Appellant testified that he did not set the fire, and he put on a witness who testified that he saw him driving by at around 12:00 p.m.

Following trial, Appellant was acquitted of first degree murder and convicted of the lesser included offense of felony murder, § 565.021. He was also convicted of first degree arson. Appellant was sentenced to consecutive terms of thirty years in prison. This appeal follows.

Point I

Appellant’s first point on appeal is that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence, in accepting the jury’s verdicts on murder and arson, and in sentencing him on both counts because the State failed to prove beyond a reasonable doubt the offenses charged in that it did not produce sufficient evidence to convince a rational trier of fact that he started the fire that killed Jeanne.

In determining the sufficiency of the evidence on appeal, we view the evidence and all inferences drawn therefrom in the light most favorable to the verdict, and we disregard evidence and inferences contrary to the verdict. State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999). An appellate court neither weighs the evidence, nor determines the reliability or credibility of witnesses, but rather limits its determination to whether there is substantial evidence from which a reasonable jury might have found the defendant guilty beyond a reasonable doubt. State v. Hill, 970 S.W.2d 868, 872 (Mo.App. W.D.1998). “Substantial evidence is evidence from which the trier of fact could reasonably find the issue in harmony with the verdict.” State v. Gomez, 863 S.W.2d 652, 655 (Mo.App. W.D.1993).

As Appellant points out, the key to both convictions was proof of the arson charge, because Appellant was found guilty of felony murder. To sustain a conviction for first degree arson, § 569.040, the State must prove (1) that the defendant knowingly damaged a building or inhabitable structure, (2) by starting a fire or causing an explosion, (3) with persons then present or in near proximity, and (4) thereby recklessly placing such person in danger of death or serious injury. State v. Kelley, 901 S.W.2d 193, 201 (Mo.App. W.D. 1995). Appellant concedes that the fire was intentionally set by someone, either Jeanne or him, pouring gasoline in the living room of the residence and lighting it. Appellant’s contention is that there was not sufficient evidence to show that he, rather than Jeanne, started the fire.

“All elements of arson may be proven by circumstantial evidence. Circumstances need not be absolutely conclusive of guilt and need not demonstrate impossibility of innocence.” State v. Bolds, 913 S.W.2d 393, 398 (Mo.App. W.D. 1996) (citations omitted). In fact, because arson is a crime usually committed in stealth and seldom in view of witnesses’, “the prosecutor must ordinarily prove a defendant’s guilt by circumstantial evidence.” State v. Smith, 770 S.W.2d 469, 473 (Mo.App. W.D.1989).

Any societal distrust of circumstantial evidence has long been abandoned. We no longer need to hold circumstantial evidence cases to a higher standard than direct evidence cases. If a jury is convinced beyond a reasonable doubt, so long as the evidence meets the minimal appellate standard required by due process, we need not disturb the result simply because the case depended wholly, mostly, or partially upon circumstantial proof.

State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993).

While opportunity alone is insufficient to support an arson conviction, evidence of opportunity and motive aids in determining guilt. Bolds, 913 S.W.2d at 398. Where a fire is deliberately set, evidence that the defendant had the means, opportunity and motive for setting the fire will sustain a finding of defendant’s criminal agency. Id.

Appellant contends that he was seen leaving the home twenty minutes before any smoke first appeared, he was seen by several people immediately thereafter and had no odors of gasoline or smoke about him, and Jeanne was alive when the fire started and was at some point next to an open door. Appellant argues that there was no basis other than speculation for the jury to conclude that he set the fire.

In State v. Nelson, 674 S.W.2d 220, 222 (Mo.App. S.D.1984), the defendant was convicted of spousal homicide by manslaughter as a result of a fire in which her husband died. The southern district of this court found that the following evidence indicated the defendant had the means, opportunity and motive to set the fire: 1) there was plenty of gasoline around the house; 2) only the defendant and the victim were at the residence at the time the fire was set; 3) the victim had been drinking and ordinarily slept heavily; 4) the defendant had a bad temper; and 5) the defendant and the victim had quarreled shortly before the fire was set. Nelson, 674 S.W.2d at 224-25. The court found that this evidence was sufficient to support a finding that the defendant was the incendiary. Id. at 225.

Similarly, in the present case, we find that the evidence viewed in the light most favorable to the verdict indicates that Appellant had the means, opportunity and motive to set the fire. The evidence indicates that 1) the fire that engulfed the trailer was caused by an accelerant; 2) the accelerant had been placed at the entrance of the trader; 3) there was gasoline at the house on the day the fire was set, and a nozzle of the type found on a plastic gas can was found at the scene; 4) the fire began at some point between 11:45 a.m. and 12:07 p.m., and Appellant may not have left the house until some point between 12:18 p.m. and 12:23 p.m.; 5) only Appellant and Jeanne were at the house at the time of the fire; and 6) Jeanne had just kicked Appellant out of the house and had just set fire to his and Brandon’s possessions in the yard.

We find that there was sufficient evidence to support Appellant’s convictions of arson and felony murder. Point I is denied.

Point II

Appellant’s second point on appeal is that the trial court plainly erred in failing to declare a mistrial sua sponte because of the prosecutor’s improper remarks during closing argument. Appellant contends that the prosecutor’s improper remarks created a manifest injustice and miscarriage of justice by leading the jury to convict him based on “facts” not in evidence and for reasons wholly irrelevant to his guilt.

Because Appellant did not object to any of these remarks at trial, we are limited to plain error review under Rule 30.20. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994). “Relief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and such assertions are generally denied without explication.” State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986). “[Statements made in closing arguments rarely affect substantial right[s] or result in manifest injustice or the miscarriage of justice so as to result in plain error requiring reversal of a conviction.” State v. Cruz, 971 S.W.2d 901, 903 (Mo.App. W.D.1998), quoting State v. Higgins, 619 S.W.2d 94, 95 (Mo.App.1981). “[Errors occurring in closing arguments justify ‘relief under plain error only when the errors are determined to have a decisive effect on the jury. The burden is on the defendant to demonstrate the decisive effect’ of the statement.” Cruz, 971 S.W.2d at 903, quoting State v. Girardier, 801 S.W.2d 793, 796 (Mo.App.1991). Furthermore, a trial court should declare a mistrial sua sponte only in exceptional circumstances. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998).

Attorneys are allowed substantial latitude in closing argument, and may suggest reasonable inferences to be drawn from the evidence. State v. Albanese, 9 S.W.3d 39, 56 (Mo.App. W.D.1999). However, “[a] prosecutor may not make statements that imply a knowledge of facts not before the jury.” State v. Shurn, 866 S.W.2d 447, 460 (Mo. banc 1993). Furthermore, it is not permissible to misstate the evidence. State v. Stiltz, 647 S.W.2d 168,169 (Mo.App. S.D.1983).

Appellant contends that the prosecutor misstated the evidence to the jury and told them facts outside the record by making the following remarks during closing argument:

1) Appellant “[h]ad somebody to make a big chunk of down payment on that little trailer out in the middle of the country.”

2) “[B]ecause [Appellant] knew that it took quite a bit of liquid courage for [Jeanne] to do what she did, to enable her to have the strength to get rid of this guy, he knew she’d be vulnerable.”

3) “So [Appellant] waited until [Jeanne] was in the back room, probably with the bedroom door locked because she wanted to stay out of his way while he was loading all this stuff in and out of the house.”

As to statements one through three, the State concedes that they were “misstatements of the evidence or that they constituted argument about matters outside of the record.” However, we find that Appellant has not met his burden of demonstrating that these remarks had a decisive effect on the jury.

4) When Appellant arrived at Brandon’s school, “you know what kind of condition he was in when he got there. He was scary, angry. He was mad enough that you heard Mr. Knight our bus supervisor say ‘I wasn’t going to leave that building. Scared me.’ ”

The testimony at trial was that Appellant was “very anxious and angry,” “very angry,” and “had a very aggressive demeanor, stance,” that he was “assertive and stood rigidly.” Karen Lawzano testified that when Appellant “looked at me very determinedly and said ‘He won’t be back,’ it was really scary.” Todd Knight testified that he did not leave while Appellant was at the school because it appeared to be a “volatile situation” and he just felt that he should be there. We find that the prosecutor’s remarks were a reasonable inference from the trial testimony. “Furthermore, the instructions given to the jury safeguard against harm that might otherwise result from exaggerated closing argument....” State v. Clayton, 995 S.W.2d 468, 479 (Mo. banc), cert. denied, 528 U.S. 1027, 120 S.Ct. 548, 145 L.Ed.2d 421 (1999).

5) “[C]an you come up with a single logical reason why Jeanne O’Haver would allow the defendant to move all of his property out of this trailer, to take all of his stuff out and then torch her own photo albums, her own pictures, her own memory of her family, her own clothes, her own things to allow the defendant to escape with his and torch hers?”

As Appellant suggests, there was no evidence that Jeanne owned photo albums or pictures. However, Appellant has again failed to show that this reference had any effect on the jury, let alone a decisive one.

6) “Only one of these two people we know about was angry and wild and crazy immediately after this incident. Only one. And again he was scary and he was out of control.”

As with statement four, we find that this was a reasonable inference from the trial testimony.

7) Referring to Appellant getting a drink of water from Jeanne before he left, the prosecutor said that Appellant said, “you know she really wasn’t all that upset at that point in time.”

Appellant testified that when Jeanne gave him a drink of water before he left, she “just stared” at him and was “aggravated” and “disgusted.” We find that the prosecutor’s remark was a reasonable inference from Appellant’s testimony. Taken in context, it was reasonable to infer that Jeanne was not all that upset when she gave him the water, as compared to earlier, when she told Appellant to leave and burned his belongings.

8) “You can believe that this lady decided to burn herself alive after her life was just getting ready to get better or you can believe that she was murdered.

Those are really the only two possibilities that have been offered to you, ladies and gentlemen.”

Appellant argues that these remarks were improper because the prosecutor did not set forth the defense theory that Jeanne set the fire herself and was accidentally trapped in it. However, as the State points out, the prosecutor was not required to assert the defense theory as a “possibility.” Furthermore, the defense theory was clearly before the jury as a possibility.

Next Appellant contends that the prosecutor appealed to the jury’s sympathy for Jeanne by telling them that “[w]hatever hopes, dreams, aspirations she may have had for the rest of her life would be unfulfilled because of the defendant. Whatever time she might have spent with this grandbaby she’s holding here were unfulfilled because of the defendant. A life for a life, ladies and gentlemen.” Brief, isolated, nonrepetitive remarks of the State in closing argument rarely call for plain error relief. State v. Lyles, 996 S.W.2d 713, 717 (Mo.App. E.D.1999). The most that can be said of the prosecutor’s remarks is that they were irrelevant. We find that these remarks do not rise to the level of manifest injustice necessary to grant plain error relief. See State v. Jackson, 750 S.W.2d 576, 579-80 (Mo.App. E.D. 1988) (finding that the defendant was not prejudiced by the prosecutor’s statement, “Think of the changes this woman has seen in her life, in transportation, in electronics, T.V. I mean, think of the changes. She has lived from 1900 to 1985 on God’s earth, and then she dies because these two guys decide to rip her off, and they want to eliminate a witness.”).

Appellant also contends that the prosecutor led the jury to believe that defense counsel improperly practiced “slick lawyering” if he argued that Appellant’s statement that “I will never tell anyone I did it” meant anything other than what the prosecutor claimed it meant, when the most reasonable interpretation of the statement is that Appellant would not admit guilt because he was not guilty. The prosecutor’s remarks were that Appellant “expected to be arrested. He was shocked that they didn’t. ‘Aren’t you going to take me away?’ ... Said ‘I will never tell anyone I did it.’ Now, that can be explained away by slick lawyering. That could be explained away. But I submit that those aren’t the words that an innocent man would say if he was just asked ‘Did you murder your wife?’ ”

At trial, the interrogating officer testified as follows:

Q. It was during this second interview that he told you he wasn’t going to admit to you that he started any fire; is that correct?
A. That was not the words he used.
Q. What were the words he used?
A. He said “I’ll never tell anyone I done it.”
Q. Okay. And that was in response to your having accused him of starting the fire; correct?
A. Yes, I told him I believed he was responsible for the fire.
Q. Okay. So he didn’t just up arid deny it out of the blue, it was after you accused him; true?
A. He didn’t really deny it. He said “I’ll never tell anyone I done it.”

We find that it was reasonable for the prosecutor to suggest that Appellant’s statement meant that he started the fire, but would never admit it. Defense counsel had the opportunity to suggest that the other interpretation was the proper one— that Appellant would never tell anyone he did it because he was innocent.

Concerning the reference to “slick lawyering,” “[plersonal attacks on defense counsel by a prosecutor are improper and objectionable. However, not all such attacks warrant reversal. An argument directed at the tactics or techniques of trial counsel rather than counsel’s integrity or character is a permissible argument.” State v. Fritz, 913 S.W.2d 941, 945 (Mo.App. W.D.1996) (citations omitted).

In Lyles, 996 S.W.2d at 716, the prosecutor stated in closing argument that “[d]efense counsel is either confused or she’s lying or trying to mislead you.” The eastern district held that while the prosecutor improperly conducted a personal attack on defense counsel by positing that she was lying, the remark was isolated and did not warrant reversal on plain error review. Id. at 716-17.

We find that the prosecutor’s isolated reference to “slick lawyering” was directed at the tactics or techniques, rather than the character or integrity, of defense counsel, and was therefore not unduly prejudicial. See State v. Ward, 807 S.W.2d 225, 226 (Mo.App. E.D.1991) (finding prosecutor’s remark that defense counsel engaged in “trickery” during the trial did not warrant reversal on plain error review because the remark was directed at the tactics or techniques of defense counsel, not at the character or integrity of defense counsel).

Appellant relies on State v. Greene, 820 S.W.2d 345 (MoApp. S.D.1991), in support of his argument that the prosecutor’s remarks constituted reversible error. In Greene, the court held that a prosecutor’s personal attack on defense counsel during closing argument constituted reversible error. Greene, 820 S.W.2d at 347. However, in Greene, the prosecutor directly suggested that defense counsel was lying. Id. at 346-47. The remarks by the prosecutor in this case, while not to be condoned, are less egregious than those in Greene. Moreover, in Greene, unlike in the present case, defense counsel objected to the prosecutor’s remarks at trial. Id. Point II is denied.

Point III

Appellant’s third point on appeal is that the trial court erred in overruling his objection to the prosecutor’s improper argument that Appellant “knew” that “whether he said his wife ... burned down this trailer or he did, they [the insurance company] weren’t going to pay,” when there was no such evidence and this was not a correct statement of the law in Missouri.

The prosecutor told the jury, “You know the other reason he didn’t want to mention gasoline? ‘Cause he wanted to be paid for this claim. He wanted his money. He wanted Grinnell Mutual or whatever company was insuring them to pay that money because he knew whether he said his wife, victim burned down this trailer or he did, they weren’t going to pay. He didn’t want to go there.” Defense counsel objected on the basis that the prosecutor’s remarks were a misstatement of the law. The trial court overruled the objection.

Appellant contends that by overruling his objection, the court led the jury to believe that the prosecutor was correct, that Appellant would not have collected on an insurance claim if Jeanne burned their trailer, and that this knowledge led him to lie about not seeing Jeanne set his property on fire. When the jury followed the court’s direction on this question, Appellant contends, it was more likely to find him guilty because he would be seen as lying to protect his own interests and not to protect Jeanne.

Appellant actually makes two arguments here. He contends that the prosecutor’s remarks were improper because they misstated the law and because they misstated the evidence. The claim that the prosecutor misstated the law is properly preserved, as it was the basis for defense counsel’s objection at trial and it was included in Appellant’s motion for new trial. The claim that the prosecutor misstated the evidence, however, was not raised before the trial court, and therefore we review it only for plain error. State v. Vann, 7 S.W.3d 407, 410 (MoApp. W.D. 1999).

“Misstatements of the law are impermissible during closing argument, and a positive and absolute duty rests upon the trial judge to restrain such arguments.” State v. Blakebum, 859 S.W.2d 170, 174 (Mo.App. W.D.1993). Depending on the insurance policy in this case, which is not in the record on appeal, Appellant may have been able to recover under the policy if Jeanne intentionally set the fire. DePalma v. Bates County Mut. Ins. Co., 24 S.W.3d 766, 768 (Mo.App. W.D.2000); see also DePalma v. Bates County Mut. Ins. Co., 923 S.W.2d 385, 388 (Mo.App. W.D.1996). However, we do not believe that the prosecutor’s remarks were a statement of the law, but rather a statement of what the State believed was Appellant’s belief about his ability to recover the insurance proceeds. Therefore, we find that the trial court did not err in overruling defense counsel’s objection that the prosecutor’s remarks misstated the law.

We next consider Appellant’s claim that the trial court plainly erred in allowing the prosecutor’s remarks because they misstated the evidence. Arguably, it is a reasonable inference that Appellant lied to the police about Jeanne starting a fire in the yard because he did not want to risk losing $7,500 in insurance he had on the house, but the prosecutor’s statement that Appellant “knew” that if Jeanne burned down the trailer he could not recover the insurance proceeds was not supported by the evidence. However, we find that any error in overruling Appellant’s objection to the prosecutor’s remarks was harmless. Appellant claims that because of the prosecutor’s remarks, the jury was more likely to find him guilty because he would be seen as lying to protect his own interests, rather than Jeanne’s reputation. This seed had already been planted in the minds of the jurors by Appellant’s testimony that he would “probably” lie to protect his reputation or his interests, and that he would “more than likely” lie to protect himself. Point III is denied.

The judgment of the trial court is affirmed.

SPINDEN, C.J., and HOLLIGER, J., concur.

      . All statutory references are to RSMo 1994.

      . The jury was instructed that arguments by counsel do not constitute evidence.


source: Caselaw Access Project

license: Public Domain

text:
    In re the Matter of Patience Irene McINTIRE, a Minor, Personally and by her Next Friend, Shawn A. Mclntire. Shawn A. Mclntire, Appellant, v. Jennifer Hake (Gerlt), Respondent.
    No. WD 57820.
    Missouri Court of Appeals, Western District.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      John W. Dennis, Jr., Deborah J. Blakely, Independence, for appellant.
    Brian K. Francka, Tobias A. Teeter, Jefferson City, for respondent.
    W. Steven Rives, Lake Ozark, Guardian ad litem.
    Before SPINDEN, C.J., and HOWARD and HOLLIGER, JJ.
   HOWARD, Judge.

Shawn A. Mclntire appeals from the trial court’s judgment modifying the custody order with respect to Patience Mcln-tire, his minor child, by transferring primary physical custody of the child to her mother, Jennifer Hake. Mclntire contends that the trial court erred in 1) modifying the custody decree based on his relocation to Independence, Missouri; 2) finding that he alienated Patience from Hake, interfered with Hake’s visitation rights, and inhibited Hake’s relationship with Patience; 3) holding that custody should be modified based on drug use by him and his wife; 4) finding that his failure to advise Hake of his address and phone number constituted a change in circumstances sufficient to modify custody; 5) finding that his failure to include Hake in decision-making responsibilities warranted a modification of custody; and 6) determining that a substantial change of circumstances sufficient to warrant a transfer of custody had occurred, and finding that the transfer of custody would be in Patience’s best interests.

We affirm.

Facts

Patience Irene Mclntire was born on September 26, 1993. Her parents, Shawn Mclntire and Jennifer Hake, have never been married. At the time of Patience’s birth, both Mclntire and Hake lived with Mclntire’s parents in Versailles, Missouri. Hake eventually moved out of Mclntire’s parents’ home. She now lives in Jefferson City, Missouri.

On June 7, 1996, Mclntire filed a petition for determination of father-child relationship and order of child custody. On September 5, 1996, the trial court entered a judgment awarding Mclntire and Hake joint legal custody of Patience, with Mcln-tire being awarded primary physical custody.

On April 20, 1999, Hake filed an amended motion to modify seeking a transfer of legal and physical custody to her, alleging that a substantial and continuing change had occurred since the original custody order, in that 1) Mclntire moved Patience to Kansas City without prior approval from her or the court; 2) Mclntire failed to keep her informed as to Patience’s activities, including school, daycare, church, and medical procedures; 3) Mclntire failed to provide information concerning health insurance for Patience to her; 4) she was able and willing to care for Patience, and was capable of providing a stable and loving environment for Patience; and 5) she believed it was in the best interests of Patience to reside with her, subject to Mclntire’s right of visitation.

On July 28, 1999, the trial court entered its modified judgment, in which it found that a substantial and continuing change of circumstance warranted a modification of custody. The trial court found that the following changes warranted a modification of the original judgment: 1) Mclntire has moved nearly 120 miles from Morgan County, Missouri to Independence, Jackson County, Missouri; 2) Since the original judgment, Mclntire has alienated the minor child from Hake and has interfered with Hake’s visitation rights; 3) Mclntire has sought to inhibit the minor child's relationship with Hake; 4) Mclntire has willfully refused to inform Hake of his address and phone number; 5) Mclntire has failed to include Hake in the decision-making responsibilities of rearing the minor child; and 6) Mclntire and his current wife have admittedly used illegal drugs, including marijuana, since the date of the judgment. The trial court did not modify the original joint legal custody arrangement, but transferred primary physical custody of Patience to Hake. This appeal follows.

Standard of Review

Our standard of review in a custody modification ease is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D.1999). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court’s order. We defer to the trial court’s assessment of witnesses’ credibility and accept the trial court’s resolution of conflicting evidence. We presume that the trial court reviewed all evidence and based its decision on the child’s best interests.

K.J.B. v. C.A.B., 883 S.W.2d 117, 121-22 (Mo.App. W.D.1994) (citations omitted). “The trial court’s determination in child custody proceedings is given greater deference than in any other type of case.” Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D.2000).

Argument

Section 452.410.1 provides, in relevant part, as follows:

Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. This court has previously stated that

“[u]nder this subsection, before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or custodian.” Haus-Gillespie v. Gillespie, 998 S.W.2d 842, 846 (Mo.App. W.D.1999); see also Johnson v. Lewis, 12 S.W.3d 379, 383 (Mo.App. W.D. 2000); Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App. W.D.1999). This standard has also been set forth in the southern and eastern districts. See Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo.App. S.D.1998); Maher v. Maher, 951 S.W.2d 669, 672 (Mo.App. E.D.1997). However, the southern district of this court, in In re C.N.H, 998 S.W.2d 553, 556-57 (Mo.App. S.D.1999), recently stated that “a finding of a ‘substantial and continuing change’ in circumstances is not a prerequisite to the modification of custody decrees. The ‘substantial and continuing change’ language is part of § 452.370, which concerns a modification of support. ‘That particular section ... [is] not controlling on a modification [of] custody.’ ” (Citations omitted.) See also Searcy v. Seedo'rff, 8 S.W.3d 113, 117 (Mo. banc 2000) (stating that a change in circumstances warranting custody modification must be substantial, but not stating that it must be continuing).

In light of the language of § 452.410.1 and logical considerations, we find that a change in circumstances of the child or custodian warranting custody modification must be “substantial” or “significant,” but it need not necessarily be continuing. To the extent that previous cases hold otherwise, they should no longer be followed in this district.

Point I

Mclntire’s first point on appeal is that the trial court erred in modifying the custody decree based on Mclntire’s relocation to Independence, Missouri, because the modification is not supported by substantial evidence that the relocation interfered with Hake’s visitation with Patience or that the move had any adverse effects on Patience or created an unstable lifestyle for her.

Following the original custody order, Mclntire relocated with Patience to Independence, Missouri, in October 1996. A residential change of the custodial parent to a distant location away from the noncustodial parent does not by itself establish that modification of the prior custody decree is appropriate. Rice v. Shepard, 877 S.W.2d 229, 231 (Mo.App. W.D.1994); see also McCubbin v. Taylor, 5 S.W.3d 202, 208 (Mo.App. W.D.1999) (finding that mother’s move with minor child from Jefferson City to Poplar Bluff, a distance of 250 miles, and subsequent single missed visitation weekend did not warrant change of custody where there was no evidence that the move affected the parties’ ability to comply with the visitation schedule, or to discuss the child’s needs and resolution of those needs as effectively as they could if both parents were present in the same city, nor that the move directly affected the welfare of the child by substantially disturbing the father/daughter relationship); Reeves-Weible v. Reeves, 995 S.W.2d 50, 61 (Mo.App. W.D.1999) (finding that modification of custody was not warranted where change of residence of children resulted in them living an additional forty-nine miles from the other parent’s residence and interfered with Wednesday night visitation, because the move did not significantly diminish the time the parent spent with the children, nor did it prevent the parent from having a meaningful relationship with the children); Basler v. Basler, 892 S.W.2d 749, 750-51 (Mo.App. E.D. 1994) (finding that mother’s relocation from southeast Missouri to central Missouri was not a change of circumstances sufficient to warrant a change of custody, even though the original custody decree included the provision whereby a move by either party outside a three-county area could justify a change of custody).

Hake does not argue that Mcln-tire’s relocation, by itself, warrants a change of custody. Rather, Hake argues that the relocation, together with Meln-tire’s refusal to provide her with information about his whereabouts, provided substantial evidence that Mclntire attempted to alienate Patience from her. While properly considered by the court, we find that, by itself, Mclntire’s relocation did not justify the trial court’s modification of custody.

Point II

Mclntire’s second point on appeal is that the trial court’s finding that he alienated Patience from Hake, interfered with Hake’s visitation rights, and inhibited Hake’s relationship with Patience is against the weight of the evidence and is not supported by substantial evidence in that the evidence at trial demonstrated that Hake has missed only one visitation period since the September 1996 order and that Mclntire wants Patience to see Hake and has encouraged Hake to visit Patience.

We first address the interference with Hake’s visitation rights. “[A] custodial parent’s interference with the visitation rights of the non-custodial parent can create a change in circumstances that may justify modification of custody. This is especially true where the evidence shows an unjustified and flagrant pattern of willful denial of visitation.” Huffman v. Huffman, 11 S.W.3d 882, 886 (Mo.App. W.D. 2000). The evidence in this case indicates that Hake missed only one visit with Patience since the entry of the 1996 custody order, during a weekend when Mclntire was moving. We find that one missed visit, by itself, is not sufficient to constitute a change of circumstances warranting a custody modification.

We next discuss the trial court’s findings that Mclntire alienated Patience from Hake and interfered with the relationship between Patience and Hake. “[Fjacts showing an attempt by one parent to alienate a child from the other parent can form the basis for modification of custody.” Nichols v. Beran, 980 S.W.2d 342, 347 (Mo.App. W.D.1998). Hake testified that Mclntire never calls to let her know how Patience is doing. She also testified that Mclntire did not let her know about Patience’s graduation from preschool in time for her to be able to take off work to attend.

At trial, Judge Scott stated that she believed Mclntire and his family attempted to alienate Patience from Hake. She stated that this attempted alienation was not only a pattern, but a “conspiracy.” Judge Scott seemed to be particularly bothered by Mclntire’s and his witnesses’ references to Patience “having” to visit with Hake. Judge Scott further stated that she believed Mclntire either did not understand joint custody, or he did not intend to follow the joint custody plan, because he did not keep Hake informed about Patience.

As further discussed in Point V, considering the evidence in the light most favorable to the trial court’s decision, as well as the deferential standard of review, we find that there was sufficient evidence for the trial court to find that Mclntire alienated Patience from Hake, and that he interfered with the relationship between Patience and Hake. “In a joint custody situation, breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances, which may afford the basis for modifying a prior decree.” Hollins v. Hollins, IS S.W.3d 669, 672 (Mo.App. E.D. 2000), Therefore, we find that the trial court did not err in modifying the custody decree on the basis that Mclntire alienated Patience from Hake through his lack of communication with her.

Point III

Mclntire’s third point on appeal is that the trial court erred in holding that custody should be modified based on drug use by him and his wife, because such holding was not supported by competent and substantial evidence in that there was no evidence of any drug use within two years of the modification, nor was there any evidence that past drug use adversely affected Patience.

The trial court found that Mcln-tire and his current wife admitted using drugs since the original custody judgment. Mclntire testified that he and his wife used to smoke marijuana, but that he quit two to three years ago, and his wife quit two years ago. While the court properly considered this evidence, there is no indication the court solely relied on it or gave it undue consideration.

Point IV

Mclntire’s fourth point on appeal is that the trial court erred in finding that his failure to advise Hake of his address and phone number once he moved to the Kansas City area constituted a change in circumstances sufficient to modify custody because this conduct does not rise to the level of egregious conduct necessary to warrant a modification of custody, does not constitute a change of circumstances of a continuing nature, and is not supported by substantial evidence.

The original custody order required that Mclntire and Hake keep each other informed as to their place of residence and their telephone number. At trial there was conflicting testimony about whether Hake was informed of his and Patience’s address and phone number after he moved to Independence. However, Hake testified that she did not miss any visits with Patience because of Mclntire’s alleged failure to provide her with his new address and phone number, and that she was in contact with Mclntire’s mother during that time. Again, we find that this factor, by itself, did not constitute a change of circumstances warranting a modification of custody in this particular case.

Point V

Mclntire’s fifth point on appeal is that the trial court erred in finding that his failure to include Hake in decision-making responsibilities warranted a modification of custody because- this finding is not supported by substantial evidence and is against the weight of the evidence, in that he denied that he failed to include Hake in the decision-making responsibilities of rearing Patience.

This point is related to Point II in that both points concern the lack of communication between Mclntire and Hake concerning Patience.

The original custody decree provided as follows:

In connection with their exercise of joint legal custody, Petitioner and Respondent shall share the decision-making rights, responsibilities and authority relating to the health, education and welfare of the children and confer with one another in the exercise of decision-making rights, responsibilities and authority. Petitioner and Respondent shall have an equal voice on issues regarding the children’s training, education and rearing, including the choice or change of school, college, camp or other comparable summer activity, special tutoring, music, art, dance and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, surgeons, religion and all other material decisions affecting the health, education and welfare of the children.

Hake testified that Mclntire did not give her any say about where Patience attended school, and she objected to where he was sending her to school. She testified that Mclntire did not tell her where Patience was attending church, and that Mclntire had not kept her informed about Patience’s health or given her any insurance information concerning Patience.

Concerning Hake’s allegation that Mclntire did not give her any say where Patience attended school, the evidence was that Hake told Mclntire that she wanted him to send Patience to the best school possible, and Mclntire testified that he only had enough money to send her to Head Start. Mclntire ended np sending Patience to Head Start. Considering that when parents disagree, the decision must ultimately be made by one parent, we find that Mclntire’s decision to send Patience to Head Start was not a sufficient basis for the trial court to modify custody. Huffman, 11 S.W.3d at 887 (finding that mother’s failure to include father in decisions to send child to private school, get braces for child, and hospitalize child were not efforts to alienate father and did not warrant modification of custody where there was no evidence that decisions would have been different if the father had been included in the decision-making process).

However, taken in the light most favorable to the trial court’s decision, there was evidence that Mclntire frequently failed to provide Hake with information concerning Patience, including school activities and insurance information. Obviously in order for Hake to be included in decision-making responsibilities concerning Patience, she must be kept informed as to what is going on in Patience’s life. We find that there was sufficient evidence for the trial court to find that Mclntire’s failure to keep Hake informed concerning Patience, thereby preventing her from participating in decisions about Patience, constituted a change of circumstances justifying a modification of custody.

Point VI

Mclntire’s sixth point on appeal is that the trial court erred in determining that a substantial change of circumstances sufficient to warrant a transfer of custody had occurred in that none of the factors enumerated by the trial court were significant enough to warrant the transfer of custody, nor would Patience substantially benefit from the transfer. Mclntire also contends that the trial court further erred in finding that the transfer of custody would be in Patience’s best interests.

We have already found that there was sufficient evidence for the trial court to decide that Mclntire attempted to alienate the child from Hake, inhibited the mother-child relationship, and failed to properly involve Hake in the decision-making responsibilities of rearing the child. We found that these changes were substantial and significant so as to warrant the transfer of custody.

We next address Mclntire’s claim that the trial court erred in finding that the transfer of custody would be in Patience’s best interests. In deciding the best interests of a child in a custody modification proceeding, the court must consider the statutory factors of § 452.375.2 ° RSMo Cum.Supp.1998. Reeves-Weible, 995 S.W.2d at 62-63.

In considering the best interest of the child on motions for change of custody, the trial court is vested with wide discretion. The reviewing court should defer to the findings of the trial court unless they are in conflict with a clear preponderance of the evidence and they disclose an abuse of discretion.

McCubbin, 5 S.W.3d at 207 (citations omitted). The trial court’s findings of fact and conclusions of law indicate that it did consider the factors listed in § 452.375 in deciding that a modification was necessary to serve Patience’s best interests. We find no abuse of discretion by the trial court in determining that a modification of custody was in Patience’s best interests.

The judgment of the trial court is affirmed.

SPINDEN, C.J., and HOLLIGER, J., concur.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . For example, a parent murdering one child would not be a “continuing” change, but it would certainly warrant a modification of custody of another child.

      . This opinion has been reviewed and approved by order of the court en banc.

      . We note that Mclntire did not violate § 452.377 by relocating with Patience. Under the version of the statute that was in effect when Mclntire moved to Independence, the custodial parent was required to receive the court’s permission to relocate the minor child's principal residence only if the relocation was going to be outside of Missouri. See McCubbin v. Taylor, 5 S.W.3d 202, 207 (Mo.App. W.D.1999).

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


author: PER CURIAM.

text:
    In re ESTATE OF Paul A. GIANELLA, Deceased.
    Nos. ED 76886, ED 77012.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Jack F. Allen, Clayton, for appellant.
    Raymond A. Bruntrager, Mary L. Brun-trager, St. Louis, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, Jr., J. and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

The probate division of the circuit court approved the final settlement and order of distribution for the estate of Paul A. Gia-nella. Paula Gianella appeals from the judgment entered after she filed motions to set aside the judgment. No error of law appears and a written opinion would have no precedential value. However, the parties have been provided with a memorandum for their information only, setting forth the reasons for this order.

The judgment is affirmed. Rule 84.16(b).

      . Frank Gianella's motion to dismiss the appeal and for damages for frivolous appeal is denied.


text:
    Leroy BRUTCHER, Employee/Respondent, v. Famous BARR, Employer/Appellant.
    No. ED 77821.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      John J. Mohan, St. Louis, for appellant.
    Gary J. Sanquinet, St. Louis, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, Jr., J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Famous Barr (“employer”) appeals from a judgment of the Labor and Industrial Relations Commission (“commission”) finding Leroy Brutcher (“claimant”) sustained 12.5% permanent partial disability as a result of a work related accident. Employer asserts that the decision by the commission is not supported by sufficient competent evidence and that the commission’s decision failed to recognize previous settlements entered into by claimant. We hold that the commission’s determination was supported by sufficient competent evidence and was not against the overwhelming weight of the evidence.

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).


author: EDWIN H. SMITH, Presiding Judge.

text:
    Allen PRESTON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57471.
    Missouri Court of Appeals, Western District.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Rose M. Wibbenmeyer, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Beth S. Riggert, Asst. Atty. Gen., Jefferson City, for respondent.
    Before EDWIN H. SMITH, P.J., and LOWENSTEIN and ELLIS, JJ.
   EDWIN H. SMITH, Presiding Judge.

Allen Preston appeals the order of the circuit court dismissing without prejudice, for a lack of jurisdiction, his § 552.040 application for conditional release from the custody of the Missouri Department of Mental Health (DMH). He also appeals the dismissal of his oral application to remove and replace his guardian, which was made pursuant to § 475.082.5. On or about December 23, 1983, the appellant pled not guilty by reason of mental disease or defect excluding responsibility, pursuant to § 552.030, to burglary in the second degree and was committed to the custody of the DMH. On June 3, 1998, he filed his application for conditional release, which was dismissed by the trial court on June 9, 1999, for a lack of jurisdiction because the appellant’s legal guardian had not joined in the application.

The appellant raises two points on appeal. In Point I, he claims that the probate court erred in dismissing his application for conditional release for a lack of jurisdiction on the basis that his guardian had not joined in the application because in doing so the trial court erroneously declared and applied § 552.040 in that, giving the language of the statute its plain and ordinary meaning, his guardian was not required to join in his application. In Point II, he claims that the probate court erred in refusing to entertain his oral application to remove his guardian, which was made during the conditional release hearing, on the basis that it was outside the scope of the pleadings because in doing so it erroneously declared and applied § 475.082.5 in that, under this statute, the court was free to take up his application at any time, including during his conditional release hearing.

We reverse and remand in part, and dismiss in part.

Facts

On or about December 23, 1983, in the Circuit Court of Clay County, the appellant pled not guilty by reason of mental disease or defect excluding responsibility, pursuant to § 552.030, to a charge of burglary in the second degree. His plea was accepted, after which he was committed to the custody of the DMH and delivered to the St. Joseph State Hospital. On February 18, 1988, the appellant was granted a conditional release from custody. However, approximately seven months later, his conditional release was revoked because he was found to have used and sold marijuana. He was then returned to the St. Joseph State Hospital. In February 1989, after he set fire to an administrative building at the hospital, he was transferred to the Fulton State Hospital.

On November 6,1990, the appellant filed an application in the Circuit Court of Cal-laway County for conditional release, pursuant to § 552.040, RSMo 1986, and counsel was appointed for him. A hearing on his application was held on December 10, 1990, which was denied. The court found that the appellant “is still mentally ill and presents a likelihood of harm to others.”

On May 3, 1994, Fay Holland, the Calla-way County Public Administrator at the time, filed a “Petition for Appointment of Guardian and Conservator” for the appellant and his estate in the Circuit Court of Callaway County, pursuant to §§ 475.060 and 475.061, alleging that he was not capable of handling his own affairs or providing for his most basic physical needs. On May 20, 1994, the court appointed counsel for the appellant pursuant to § 475.075.3. On May 31, 1994, the appellant requested, pursuant to § 475.075.8(2), a jury trial on the issues of his alleged incapacity and disability. The cause proceeded to trial on January 18, 1995. The jury returned its verdict finding that the appellant was totally incapacitated and disabled. On or about February 8, 1995, pursuant to § 475.030, the court entered its order granting letters of full guardianship of the appellant and letters of conservatorship of his estate to Holland.

On January 21, 1997, the probate court found that there was no need to continue the conservatorship of the appellant’s estate and terminated it. Thereafter, the court appointed Karen Digh, who had replaced Holland as the public administrator, as the appellant’s successor guardian, placing no limitations on her powers and duties.

On April 22, 1997, the appellant filed in the Circuit Court of Callaway County a second application for conditional release and counsel was appointed for him. A hearing on his application was held on June 2, 1997, which was denied, the court finding that the appellant “remain[ed] mentally ill and continue[d] to present a likelihood of harm to others.”

On June 9, 1998, the appellant filed an “amended” application for conditional release from the custody and was again appointed counsel. The appellant’s guardian did not join in the application. On May 26, 1999, the State filed a motion to dismiss the appellant’s application, which was taken with the case, to be ruled on at the hearing on the appellant’s application set for June 9, 1999. On June 9, 1999, at the appellant’s application hearing, the State contended that his application should be dismissed because his guardian was not joined as a party as required by Chapter 475. In this respect, the State argued that:

The guardian in this matter is not a party. She has not brought this petition. This petition has been brought by [the appellant] himself. He lacks the capacity to bring such a petition in that he has a guardian appointed by this court and is thus an incompetent person. An incompetent person is not — they— does not have the capacity to be a party in a civil action, and that under the guardianship statutes of this state, it falls to the guardian to bring this petition on [the appellant’s] behalf. This has not occurred.
And the party that needs to be bringing this action is the guardian for the ward. And regardless of the style, the law of Missouri with respect to the incapacity of incompetent people require[s] that to bring an action, an incompetent person, who has had a guardian appointed, that it is the guardian’s decision and duty to bring that action on behalf of the ward.
And considering that [the appellant’s guardian] has not brought this action, but this is an action independent of the guardian, that that’s what destroys the court’s jurisdiction.

Digh testified at the hearing that she had been asked to join as a party in the appellant’s application for conditional release, but refused to do so. At this point, the appellant’s counsel made an oral application on the appellant’s behalf for removal of Digh as his guardian on the basis that she was not discharging her responsibilities and duties or acting in the appellant’s best interests. The court refused to entertain the application because it was “beyond the scope of where we are now on whether or not the conditional release [application should be granted].” The court then dismissed without prejudice the appellant’s application for conditional release finding that, because his guardian was not a party to the application, it lacked jurisdiction to proceed. This appeal follows.

I.

In Point I, the appellant claims that the probate court erred in dismissing his application for conditional release for a lack of jurisdiction on the basis that his guardian had not joined in the application because in doing so the court erroneously declared and applied § 552.040 in that, giving the language of the statute its plain and ordinary meaning, his guardian was not required to join in his application. Specifically, he claims that § 552.040 does not require an incapacitated acquittee for whom a guardian has been appointed, such as himself, to bring his or her application by and through his or her guardian. The State contends that if § 552.040 is read in pari materia with the applicable statutes of Chapter 475, RSMo, which governs guardianships, an insanity acquittee is required to bring his or her action for conditional release by and through his guardian.

“A motion to dismiss for lack of subject matter jurisdiction should be granted whenever it appears, by a preponderance of the evidence, that the court is without jurisdiction.” Dorris v. Mo. Substance Abuse Counselors’ Certification Bd., Inc., 10 S.W.3d 557, 559 (Mo.App.1999). “The decision to dismiss for lack of subject matter jurisdiction is within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of that discretion.” Id. “Judicial discretion is abused only where the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.

The issue presented in this point necessarily requires us to interpret the statutes implicated. In interpreting statutes, our purpose is to ascertain the intent of the legislature. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). In doing so, we look to the language used, giving it its plain and ordinary meaning. Id. When a word used in a statute is not defined therein, it is appropriate to derive its plain and ordinary meaning from a dictionary. Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999). The courts are without authority to read into a statute a legislative intent which is contrary to the intent made evident by giving the language employed in the statute its plain and ordinary meaning. Kearney Special Rd. Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996).

“Statutory provisions relating to the same subject matter are considered in pari materia. ...” EBG Health Care III, Inc. v. Mo. Health Facilities Review Comm., 12 S.W.3d 354, 360 (Mo.App.2000). We are required to “interpret and apply statutory provisions with reference to each other to determine legislative intent.” Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 587 n. 3 (Mo.App.1999); see also Board v. Eurostyle, Inc., 998 S.W.2d 810, 814 (Mo.App.1999). “This court presumes that statutes in pari materia are intended to be read consistently and harmoniously.” EBG Health Care III, Inc., 12 S.W.3d at 360. Thus, where two statutes concerning the same subject matter are unambiguous when read individually but conflict when read together, we will attempt to harmonize them and give effect to both. State ex rel. Riordan, 956 S.W.2d at 260; Wells v. Mo. Property Ins. Placement Facility, 653 S.W.2d 207, 213 (Mo. banc 1983). However, if they cannot be reconciled, the more specific will control over the more general. Greenbriar Hills Country Club v. Dir. of Revenue, 935 S.W.2d 36, 38 (Mo. banc 1996).

Section 552.040 governs, inter alia, applications of committed insanity acquittees for conditional release from DMH custody and provides, in pertinent part:

3. ... Notwithstanding any other provision of law to the contrary, no person committed to the department of mental health who has been tried and acquitted by reason of mental disease or defect as provided in section 552.030 shall be conditionally or unconditionally released unless the procedures set out in this section are followed.
10. The committed person or the head of the facility where the person is committed may file an application in the court having probate jurisdiction over the facility where the person is detained for a hearing to determine whether the committed person shall be released conditionally.

A reading of § 552.040 does not disclose any ambiguity as to whether a committed insanity acquittee can file an application for conditional release without his or her guardian joining in the application. Considered alone, when given its plain and ordinary meaning, the language of the statute would appear to allow an incapacitated acquittee who has a legal guardian to file an application for conditional release without his or her guardian joining the application. The State contends, however, that § 552.040 cannot be read alone, but must be read with the applicable provisions of Chapter 475, RSMo, in that the appellant had an appointed guardian. The State further contends that, when the statutes are read together, a committed insanity acquittee for whom a legal guardian has been appointed a legal guardian cannot file his or her application for conditional release without his or her guardian joining in the application.

On January 18, 1995, the appellant was found to be completely incapacitated. An incapacitated person is one who

is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

§ 475.010(9). “A person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent.” § 475.078.8. Thus, “[a]n adjudication of incapacity or disability does operate to impose upon the ward or protectee all legal disabilities provided by law, except to the extent specified in the order of adjudication .... ” § 475.078.2. After the appellant was found to be incapacitated, the probate court, pursuant to §§ 475.030 and 475.079.1, appointed a legal guardian for him without any limitation on her powers and duties. A legal guardian is one “appointed by a court to have the care and custody of the person of a minor or of an incapacitated person.” § 475.010(6). As such, the appellant’s guardian was required to “take charge of [the appellant] and to provide for [his] care, treatment, habilitation, education, support and maintenance.” § 475.120.3. The guardian’s duties include assuring that the appellant reside in the “best and least restrictive setting reasonably available” and receives “medical care and other services that are needed,” and promoting the “care, comfort, safety, health, and welfare of the ward.” § 475.120.3(l)-(3).

Giving the language of the applicable statutes of Chapter 475 its plain and ordinary meaning, it is apparent to us that the appellant’s guardian had the duty and responsibility to make any and all decisions, which the appellant was presumed not to have the capacity to make, regarding his living arrangements, treatment, health care, and other basic necessities. In our view, this necessarily would include making a decision as to whether it was in the appellant’s best interests to be conditionally released from DMH custody in that such a decision necessarily would affect his future living arrangements, treatment, and health care. As such, we would read Chapter 475 as requiring the appellant’s guardian, in order to safeguard the appellant’s living arrangements, treatment, health care, and other basic necessities, to review and determine whether it was in his best interests for a § 552.040 application to be granted.

In reading the implicated provisions of § 552.040 with Chapter 475, we find no conflict. Although we do not believe that the statutes can be read as requiring a guardian to join in an acquittee’s application for conditional or unconditional release, we do believe that the guardian would be required to be joined as a necessary party pursuant to Rule 52.04(a). This rule provides, in pertinent part, that:

A person shall be joined in the action if: ... (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect that interest. ...

Rule 52.04(a). Based on a guardian’s Chapter 475 duty to protect the best interests of his or her ward, the guardian has a statutorily created interest in a ward’s conditional release proceeding, which would be impaired or impeded by the guardian’s absence therefrom. As such, where an acquittee filing a § 552.040 application for conditional or unconditional release has a guardian, we hold that the guardian is required to be joined as a necessary party.

In holding as we do, we are not unmindful of the requirements of Rule 52.02(k). This rule provides:

Whenever it shall be suggested or affirmatively appear to the court that any person not having a duly appointed guardian is incapable by reason of mental or physical infirmity of instituting suit or properly caring for the person’s own interests in any litigation brought by or against such person, the court shall inquire into the person’s mental or physical condition for the purpose of the particular litigation and shall hear and determine such issue. If it is found to be proper for the protection of the person, the court may appoint a next friend or guardian ad litem for said person for the purpose of the particular litigation.

Rule 52.02(k) (emphasis added). Although the rule only speaks in terms of a person “not having a duly appointed guardian,” where, as here, a guardian has been appointed, but he or she refuses to join the ward in prosecuting his or her application for conditional release, the effect is that, for purposes of that proceeding, the ward is without a guardian. As such, we interpret this rule as requiring the court to consider whether to appoint a guardian ad litem for the acquittee when his or her guardian refuses to assist the acquittee in prosecuting his or her application for conditional or unconditional release. In this context, the sole purpose of an appointed guardian ad litem would be to assist the acquittee in prosecuting his or her application.

In our case, the appellant’s application was dismissed because his guardian refused to join in the application. This was error under our interpretation of the controlling law. Thus, we must reverse and remand for the probate court to reinstate the appellant’s application and conduct a hearing thereon, after first considering whether to appoint a guardian ad litem.

II.

In Point II, the appellant claims that the probate court erred in refusing to entertain his oral application to remove his guardian during the conditional release hearing on the basis that it was outside the scope of the pleadings because in doing so it erroneously declared and applied § 475.082.5 in that, under this statute, the court was free to take up his application at any time. Specifically, the appellant claims that the language of the statute, providing that a ward can move to remove his or her guardian “at any time,” required the court to entertain his oral application to remove his guardian at the conditional release hearing.

Although, as a practical matter, the appellant may have harbored hope that the removal and replacement of his guardian would ultimately lead to his application for conditional release being heard on the merits, legally his application was irrelevant to the probate court’s determination of his application for conditional release. In keeping with this fact, we note that the appellant makes no claim on appeal that the probate court’s ruling on his oral application for removal of his guardian in any way affected the court's dismissal of his application for conditional release. In any event, the appellant’s oral application to remove his guardian was procedurally separate and apart from his application for conditional release. Hence, our review of the probate court’s ruling on the appellant’s oral application for removal of his guardian must stand on its own and is not reviewed as part of our review of the dismissal of his application for conditional release.

We are required to determine our jurisdiction, sua sponte. McKeever v. Bi-State Dev. Agency, 988 S.W.2d 599, 600 (Mo.App.1999). In determining our jurisdiction, we would note that the probate court’s refusal to hear the appellant’s oral application to remove his guardian was, in effect, a dismissal without prejudice of the application based on the failure of the appellant to plead in advance and give notice to the guardian of his intention to seek her removal in the conditional release proceeding. The appellant was free to “refile” his motion such that the dismissal was of his pleading, not his action to remove his guardian. Siampos, 870 S.W.2d at 501. Hence, as to the probate court’s judgment denying the appellant’s oral application for removal of his guardian, it was not final and appealable, depriving us of appellate jurisdiction. Id.

Conclusion

The judgment dismissing without prejudice the appellant’s § 552.040 application for conditional release from the custody of the DMH for a lack of jurisdiction is reversed and the cause is remanded with directions for the circuit court to reinstate the application, join the appellant’s guardian as a necessary party, and consider whether to appoint a guardian ad litem for appellant under Rule 52.02(k). The appeal of the court’s judgment dismissing without prejudice the appellant’s oral application to remove and replace his guardian is dismissed for a lack of jurisdiction.

LOWENSTEIN and ELLIS, JJ., concur.

      . All references to Chapter 552 are to RSMo Supp.1999. All other statutory references are to RSMo 1994, unless otherwise indicated.

      . The record on appeal does not indicate which initial application for conditional release his June 9, 1998, application was amending.

      . Generally, an order of dismissal without prejudice is not a final appealable judgment. Siampos v. Blue Cross and Blue Shield of Mo., 870 S.W.2d 499, 501 (Mo.App.1994). “However, ‘[w]hen the effect of the order is to dismiss the plaintiffs action and not the pleading merely, then the judgment entered is final and appealable.’ ” Id. In our case, the effect of the court’s order of dismissal was to dismiss the appellant's action in that the guardian would not join in his application, and not merely his pleading. As such, the probate court’s judgment of dismissal is final and appealable.

      . In making this argument, the State relies on McKee v. State, 967 S.W.2d 702, 703 (Mo.App. 1998). We note that this court disposed of the claims raised on appeal in McKee by a memorandum decision and written order entered pursuant to Rule 84.16(b). As such, it does not constitute a formal opinion of this court, cannot be cited, and has no prece-dential value. Id.

      . All rule references are to the Missouri Rules of Civil Procedure (1999).


author: JAMES R. DOWD, Judge.

text:
    Michael MARTINO, Respondent, v. Ena MARTINO, Appellant.
    No. ED 76935.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Danna McKitrick, P.C., David R. Bohm, Jill J. Laux, Todd L. Beekley, St. Louis, for appellant.
    Sanford J. Boxerman, Rosenblum, Gol-denhersh, Silverstein & Zafft, P.C., St. Louis, for respondent.
   JAMES R. DOWD, Judge.

Ena Martino appeals from a judgment reducing her ex-husband’s maintenance obligation from $750 a month to $274 a month.

Michael and Ena Martino married in 1984. Their marriage lasted five years and they lived together as husband and wife for eighteen months. In 1986, Ena became pregnant, but the pregnancy was ectopic. As a result, she lost the baby and suffered an emergency hysterectomy. This of course caused Ena to become sterile. Shortly thereafter Ena was diagnosed with severe depression. She currently carries a diagnosis of schizoid-affective disorder. The evidence was undisputed that she was at the time of trial, and remains to this day, totally disabled and unable to work.

Shortly after Ena’s troubled pregnancy the couple divorced. In 1989, the original dissolution decree was entered. In that decree, the trial court found that Ena’s mental condition prevented her from working, that she possessed no income of her own and that Michael had the ability to provide for his own needs while still contributing to Ena’s support. The trial court ordered Michael to pay $750 a month in “modifiable continuing maintenance.”

After the divorce, Michael experienced both personal and financial success. Michael remarried in 1991. His new wife gave birth to twins in 1997, and his earnings increased steadily after the divorce. At the time of dissolution Michael earned approximately $60,000 a year, five years later Michael’s income ranged from $89,000 to $112,000 a year. Michael’s new spouse also draws a salary.

Ena is unable to work, and lives with her aunt in Miami. Shortly after the divorce, Ena began receiving Social Security Disability Income from the government in the amount of $476 a month. Ena also receives significant financial support from her family. Despite this assistance, some of Ena’s medical bills remain unpaid.

Michael filed a motion to reduce his maintenance obligation on August 18, 1998. Michael did not argue inability to meet his obligation. Rather, he argued that Ena’s new found income from Social Security as well as gifts from her family substantially changed her circumstances rendering the terms of the original decree unreasonable.

The trial court sustained Michael’s motion and reduced his monthly obligation from $750 to $274. The court found that substantial and continuing changes rendered the original decree unreasonable. The court reasoned that Ena now receives $476 a month in Social Security benefits that she did not receive at the time of dissolution, and that Ena now received significant financial support from her family that she did not receive at the time of the dissolution decree. In finding “changed circumstances” the court noted that Ena “had available to her resources in addition to those she is now receiving” because she “would in all likelihood be entitled to food stamps and subsidized housing.” The court also took into account Michael’s new marriage and the recent birth of twins to that marriage; however, Michael does not argue that his new financial responsibilities render him unable to meet the burden of the original maintenance decree.

Ena appeals the trial court’s finding of substantial change of circumstance. She alleges that the trial court erred when it found her receipt of Social Security Disability payments, and her receipt of aid from her family, to be substantial and continuing changes rendering the terms of the original decree unreasonable. Ena alleges further that the court erred by improperly considering the possibility that she could qualify for food stamps or subsidized housing and by improperly considering the extra burden Michael’s newborns now present to his finances.

Maintenance decrees may be modified only “upon a showing of changed circumstances so substantial and continuing as to make the terms [of the original decree] unreasonable.” § 452.370(1) RSMo (1994). A trial court’s judgment upon these matters will be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In Missouri, the general rule is that a change in circumstances rises to the requisite statutory level when it renders the obligor spouse unable to pay maintenance at the assigned rate or when the recipient of the support could meet his or her reasonable needs with a lesser amount of maintenance. This general rule is well illustrated by the recent case of Norman v. Norman, 916 S.W.2d 209 (Mo.App. E.D. 1995). In Norman, the husband owed his former wife $65 a week in maintenance. Id. at 210. After the divorce, both husband and wife experienced an increase in income. But even with this increase, wife’s income fell well below her reasonable financial need. Id. at 212. Husband moved to reduce his maintenance obligation, arguing that the wife’s increased income constituted a substantial and continuing change rendering the terms of the original maintenance decree unreasonable. The trial court denied his motion, and we affirmed. We reasoned that no “substantial and continuing change” existed because the obligor spouse possessed ample wealth to pay maintenance at the assigned rate and the obligee wife would be unable to meet her reasonable financial needs if his maintenance obligation was reduced. Id.

This logic also appears in Schofer v. Schofer, 780 S.W.2d 69 (Mo.App. W.D.1989) and Reeves v. Reeves, 803 S.W.2d 52 (Mo.App. E.D.1990). In Schofer, the Western District held that an increase in the wife’s income constituted a substantial and continuing change because it allowed her to meet her own needs without receiving further maintenance from her husband. Schofer, 780 S.W.2d at 71. In Reeves, this court held that a decrease in the obligor’s income and an increase in the obligee’s income constituted a substantial and continuing change because the obligor no longer possessed the ability to pay and the obligee no longer required the full amount of the previously ordered maintenance to meet her needs. Reeves, 803 S.W.2d at 53.

In the present case, like Norman, the obligor possesses ample ability to pay his maintenance obligation as originally ordered, and the obligee, though her income has increased, remains unable to meet her reasonable financial need without that maintenance. The evidence was undisputed that Ena has a reasonable financial need of at least $1,557.92 a month. Her income from Social Security Disability and Michael’s maintenance (as originally ordered) covers only $1,226 of that amount. Even with additional assistance from her family, Ena’s income is still insufficient to cover her medical bills. Michael, on the other hand, possesses ample wealth to pay his maintenance obligation at the original rate. Because maintenance payments at the original rate do not create a hardship for Michael and because Ena would be unable to meet her reasonable financial needs should maintenance be reduced, the trial court erred when it reduced Michael’s maintenance obligation. The addition of Social Security Disability and family assistance to Ena’s income is not a change “so substantial and continuing as to render the original decree unreasonable.”

Michael argues that we should consider the possibility that Ena will “more than likely” receive government benefits in the form of food stamps and subsidized housing should she choose to apply for them. The trial court expressly factored Ena’s “likely” income from government benefits into its calculations, and Michael argues that the trial court properly did so. With this additional, though speculative, source of income, Michael claims that Ena is more than able to meet her financial needs despite a reduction in maintenance.

We hold today that government benefits, designed to lessen the impact of poverty, should not be considered when deciding if a substantial and continuing change of circumstance has occurred. Employing the possibility of future government assistance as a factual basis for a finding of changed circumstances reasons against itself. Food stamps and subsidized housing are designed to aid those who cannot meet their needs by any other means. They are not intended to alleviate one’s lawful obligation to another. Michael has a lawful obligation to support his ex-wife and' he has ample means to do so. It is against our public policy to alleviate one’s lawful financial obligation merely because the general public may, of necessity, bear that same burden.

Michael also argues that we should consider the additional financial burden his new family imposes. The trial court agreed with this argument, noting that Michael’s “remarriage and the birth of his two ■ children are also relevant in this court’s determination.”

The birth of children into a new marriage may constitute a “substantial and continuing change,” but only when the extra expense of those children renders the obligor spouse unable to meet both his own financial needs and his maintenance obligation. Butts v. Butts, 906 S.W.2d 859, 862 (Mo.App.1995); Jourdan v. Jourdan, 251 S.W.2d 380, 383 (Mo.App.1952). Michael does not claim that his new family creates a financial hardship that renders his maintenance obligation 'unreasonable. On the contrary, Michael admits that he has ample funds to meet both his family’s need and his maintenance obligation. This factor should not be considered absent a finding that the change is of such moment as to make the original decree unreasonable.

The circuit court’s judgment of August 27, 1999 is reversed. We remand with instructions to reinstate the original maintenance decree retroactive to August 27, 1999.

AHRENS, P.J., and CRANDALL, J., concur.


text:
    STATE of Missouri, Respondent, v. Charles BUCHANAN, Appellant.
    No. ED 76947.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MOONEY, P.J., and SIMON and SULLIVAN, JJ.
   ORDER

PER CURIAM.

Charles Buchanan, defendant, appeals the judgment of the Circuit Court of Madison County entered following the jury’s verdict finding him guilty of committing violence against an employee of the Department of Corrections of the State of Missouri, Section 217.385 RSMo 1994.

On appeal, defendant contends that the trial court erred in: 1) denying his motion for a continuance for a further mental evaluation because there was sufficient doubt of his competency to stand trial and assist in his own defense; and 2) granting defense counsel’s request to exclude defendant from the courtroom during trial because counsel cannot waive defendant’s right to be present during trial, and defendant did not personally waive this right, consent to a waiver, and he was not competent to waive or consent to the waiver of his right to be present at his trial.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion reciting detailed facts and restating principles of law would have no precedential or jurisprudential value. We affirm the judgment pursuant to Rule 30.25(b).


text:
    James MATTHEWS, Plaintiff/Respondent, v. PRESIDENT RIVERBOAT CASINO-MISSOURI, INC., d/b/a President Casino on the Admiral, Defendant/Appellant.
    No. ED 76735.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Larry Darnell Hale, Law Office of Hale, St. Louis, for respondent.
    Ann Elizabeth Buckley, William M. Cor-rigan Jr., The Law Office of Armstrong, Teasdale, Schlafly, Daivs & Dicus, St. Louis, for appellants.
    Before LAWRENCE E. MOONEY, P.J., PAUL J. SIMON and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

President Riverboat Casino Missouri (the Casino) appeals from judgments of $81,000 compensatory damages and $475,000 punitive damages entered on jury verdicts against the Casino on James Matthews’ (Respondent) claim for False Arrest and Imprisonment.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not against the weight of the evidence. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    John VERSCHOORE, et al., Respondents, v. THOELE, INC., Appellant.
    No. ED 77590.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Ronald R. Fralicx, St. Charles, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN and GEORGE W. DRAPER, JJ.
   ORDER

PER CURIAM.

Appellant Thoele, Inc. (“Thoele”) appeals the judgment and order of the Circuit Court of St. Louis County sustaining Respondents John A. Verschoore and John A. Verschoore, Inc.’s (collectively “Versch-oore”) motion for judgment for specific acts. Thoele contends the trial court erroneously applied Missouri Rule of Civil Procedure 74.07 when it entered its judgment and order divesting title.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: PER CURIAM,

text:
    STATE of Missouri, Respondent, v. Edward LAWRENCE, Appellant.
    No. ED 78151.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Edward Lawrence, Mineral Point, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, P.J., MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM,

Edward Lawrence, acting pro se, appeals from the trial court’s judgment denying his “Petition For Nunc Pro Tunc Order.” Appellant’s petition alleged that his conviction of a double homicide in 1984 was invalid and should be set aside, because the trial court lacked jurisdiction to proceed in the matter or to enter judgment convicting and sentencing him on the charges, in that the State’s indictment against him had incorrectly joined a count of Murder in the First Degree with a count of Capital Murder, in violation of the version of Supreme Court Rule 28.05 which was in effect at the time and which provided that no capital murder could be charged in the same indictment or information with any other offense. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. An extended opinion would have no prece-dential value and serve no jurisprudential purpose. We have, however, prepared a memorandum for the parties explaining the reasons for this order. Affirmed. Rule 84.16(b).


text:
    Mary A. STEUBY, Petitioner/Respondent, v. John J. STEUBY, Respondent/Appellant.
    No. ED 77538.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2000.
    Application for Transfer Denied Jan. 23, 2001.
    Merle L. Silverstein, Clayton, MO, for appellant.
    W. Stanley Walch, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

John J. Steuby (“husband”) appeals from a judgment ordering him to pay interest on the lump sum property division payment made to his ex-wife Mary A. Steuby (“wife”) in compliance with the dissolution decree. Husband contends that the trial court erred in awarding wife interest on the payment. Wife cross appeals contending that the trial court erred in determining the amount of interest that she is owed.

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).