author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    In re the MARRIAGE OF Ann S. BUSCH and Adolphus August Busch, IV Ann S. Busch, Petitioner/Appellant, v. Adolphus August Busch, IV, Respondent/Respondent.
    No. ED 93255.
    Missouri Court of Appeals, Eastern District, Division One.
    April 27, 2010.

      Allan H. Zerman, Stephanie L. Jones, Joseph J. Kodner, Zerman & Mogerman LLC, Clayton, MO, for appellant.
    Ellen W. Dunne, Blitz Bardgett & Deutsch, L.C., St. Louis, MO, for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Wife filed a motion to enforce a dissolution decree. Husband moved to dismiss wife’s motion. The trial court granted husband’s motion to dismiss, treated it as a motion for judgment on the pleadings, and entered judgment on the pleadings. Wife challenges the entry of judgment on the pleadings, arguing that her motion stated a claim for relief and raised issues of fact that could not be resolved by judgment on the pleadings. We reverse and remand.

On July 7, 2008, wife, Ann S. Busch, filed a motion to compel husband, Adol-phus A. Busch, IV, to comply with the parties’ dissolution decree. In her motion, wife alleged that the parties had been granted a judgment of legal separation on July 21, 2004 that incorporated the parties’ Property Settlement and Separation Agreement (the Property Agreement). She further alleged that on April 7, 2008, the judgment of legal separation was converted by consent to a judgment of dissolution, and the Property Agreement was incorporated therein. As relevant to this appeal, wife alleged that husband had failed to comply with specific provisions of the Property Agreement relating to her awards of one-half of: (1) husband’s interest in certain limited liability companies and a limited partnership; (2) husband’s interest in the preferred stock of Kinexus Corporation; (3) two promissory notes payable to husband from Eager Road Associates, Inc.; and (4) husband’s beneficial interest in one-half of the proceeds of a note receivable from Silver Eagle Distributors, Inc., and husband’s obligations on a note payable to Silver Eagle Distributors, Inc. Wife alleged that Paragraph 8.3 of the Property Agreement ordered each party to cooperate in furnishing to the other party all information in his or her respective possession or control as is required by each of them that may be necessary for the timely filing of state and/or federal income tax returns. Wife further alleged that each party agreed in Paragraph 10.4 of the Property Agreement to execute all documents and to do all things necessary to accomplish and give effect to the provisions of the Property Agreement. Wife sought an order compelling husband to provide to her all documentation and information to which she was entitled under the Property Agreement, along with an award of attorney’s fees and costs, and such other relief to which she may be entitled.

Husband subsequently moved to dismiss wife’s motion to compel. After hearing argument, the trial court entered a judgment in which it granted husband’s motion to dismiss, treated it as a motion for judgment on the pleadings, and entered judgment on the pleadings. The trial court subsequently overruled wife’s motion to amend the judgment. Wife appeals.

DISCUSSION

On appeal, wife first asserts that the trial court erred in granting judgment on the pleadings in husband’s favor because her motion to compel stated a claim for relief and raised numerous factual issues, making a judgment on the pleadings inappropriate. Because this point is disposi-tive, we do not reach wife’s remaining point.

APPLICABLE LAW

1. Judgment on the Pleadings

The trial court treated the motion to dismiss as a motion for judgment on the pleadings and entered judgment on the pleadings. A motion for judgment on the pleadings is authorized by Rule 55.27(b), which provides:

Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

A motion for judgment on the pleadings is of common law origin, and it is not favored by the courts. McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 761 (1950). Such a motion may be sustained only when,

“under the conceded facts, a judgment different from that pronounced could not be rendered notwithstanding any evidence which might be produced. In other words, it cannot be sustained unless, under the admitted facts the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined.”

Id. (quoting 41 Am.Jur. Pleading § 336). Judgment on the pleadings is only appropriate when the question before the court is strictly one of law. Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). “ ‘The question presented by a motion for judgment on the pleadings is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.’ ” Id. (quoting RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 424 (Mo.App.2003)). A trial court should not sustain a motion for judgment on the pleadings if a material issue of fact exists. Madison Block Pharmacy v. U.S. Fidelity, 620 S.W.2d 343, 345 (Mo. banc 1981).

A right to judgment on the pleadings must be established by the allegations in the opposing party’s pleadings. Matters quoted in, attached to, or incorporated by reference into the pleadings may be considered. McIntosh, 228 S.W.2d at 761; Messner v. American Union Ins. Co., 119 S.W.3d 642, 648 (Mo.App.2003). However, matters not properly incorporated into the pleadings may not be considered. Messner, 119 S.W.3d at 648-49. A trial court may not consider unpleaded matters by taking judicial notice of them. Ralph D’Oench Co. v. St. Louis County Cleaning & Dye. Co., 358 Mo. 1072, 218 S.W.2d 609, 611-12 (1949).

The party that moves for judgment on the pleadings admits, for purposes of the motion, the truth of all well-pleaded facts in the opposing party’s pleadings. Eaton, 224 S.W.3d at 599; State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000); Madison Block, 620 S.W.2d at 345. The motion admits only the well-pleaded facts, not the pleader’s conclusions or construction of the subject matter. Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936, 938 (1943); Grove v. Sutliffe, 916 S.W.2d 825, 828 (Mo.App.1995); Helmkamp v. Ameri can Family Mutual Insurance Co., 407 S.W.2d 559, 565-66 (Mo.App.1966).

A motion for judgment on the pleadings shares similarities with a motion to dismiss for failure to state a claim, but it is also distinct. A defending party who makes a motion for judgment on the pleadings is in the same position as a defending party who makes a motion to dismiss for failure to state a claim. In both situations, the defending party’s position is that even if all of plaintiffs well-pleaded facts are true, they are insufficient as a matter of law. Nixon, 84 S.W.3d at 134. However, a motion to dismiss is made before the filing of an answer; whereas a motion for judgment on the pleadings is not made until the pleadings are closed. Further, if a court sustains a motion to dismiss, it “shall freely grant leave to amend.” Rule 67.06. See Costa v. Allen, 274 S.W.3d 461, 463-64 (Mo. banc 2008). However, a motion for judgment on the pleadings contemplates a final judgment on the merits. Essen v. Adams, 342 Mo. 1196, 119 S.W.2d 773, 777 (1938).

When the defending party is the moving party for judgment on the pleadings, the allegations of the opposing party’s petition or motion seeking relief are admitted for the purposes of the defending party’s motion. Nixon, 34 S.W.3d at 134; RGB2, Inc., 103 S.W.3d at 424. The facts pleaded in the defending party’s responsive pleading are not admitted and are not self-proving. RGB2, Inc., 103 S.W.3d at 424. It is error for a trial court to grant judgment on the pleadings based on a factual allegation in the responsive pleading. Id. at 424-25.

In this case, wife filed the motion to compel, and husband filed the motion to dismiss that the trial court treated as a motion for judgment on the pleadings. Therefore, wife’s factual allegations are deemed admitted, and husband’s factual allegations are deemed denied for the purposes of determining whether husband is entitled to judgment on the pleadings. See id. We treat the Property Agreement as incorporated by reference into wife’s motion because it was part of the trial court file and pleaded in the motion. See Twehous Excavating v. L.L. Lewis, 295 S.W.3d 542, 546 (Mo.App.2009).

We will affirm a judgment on the pleadings only “if the facts pleaded by the petitioner, together with the benefit of all reasonable inferences drawn therefrom, show that petitioner could not prevail under any legal theory.” Messner, 119 S.W.3d at 644. See also Lynch v. Missouri Dept. of Corrections, 267 S.W.3d 796, 798 (Mo.App.2008). Conversely, we will reverse if, on the face of the pleadings, an issue of fact exists, see McGuire v. Director of Revenue, 174 S.W.3d 87, 89 (Mo.App.2005), or if the allegations in the non-movant’s pleadings show that the non-mov-ant could prevail under some legal theory. See Lone Star Industries, Inc. v. Howell Trucking, Inc., 199 S.W.3d 900, 906-07 (Mo.App.2006); Messner, 119 S.W.3d at 646-47.

2. Enforcement and Interpretation of Settlement Agreements

The Property Agreement sought to be enforced was part of a settlement and separation agreement incorporated into a dissolution decree. Parties to a settlement agreement incorporated into a dissolution decree may bind themselves to obligations that the dissolution court lacks authority to impose. Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 287 (Mo.App.1999). See also Bushell v. Schepp, 613 S.W.2d 689, 692 n. 1 (Mo.App.1981). When a settlement agreement has been incorporated into a dissolution decree, it can be enforced by the courts like any other judgment. Section 452.325.5 RSMo (2000); In re Marriage of Bolton v. Bolton, 950 S.W.2d 268, 271 (Mo.App.1997). A party states a cause of action for enforcement of the provisions of a judgment by pleading facts showing a duty under the judgment or under any applicable law and the failure to perform that duty. See Atkinson v. Atkinson, 185 S.W.3d 780, 782 (Mo.App.2006).

Because the Property Agreement was incorporated into wife’s motion to compel, its interpretation was properly before the court on a motion for judgment on the pleadings. See Twehons, 295 S.W.3d at 546-47. Interpretation of a settlement agreement is a question of law that we review de novo. Royalty v. Royalty, 264 S.W.3d 679, 683 (Mo.App.2008). We interpret the unambiguous provisions of a settlement agreement from the words of the agreement alone, without the use of extrinsic evidence. Bolton, 950 S.W.2d at 271. When the parties have been represented by counsel in the preparation and execution of their agreement, we give the words used their established legal meaning. Keltner v. Keltner, 589 S.W.2d 235, 238 (Mo. banc 1979); Roberts v. Roberts, 654 S.W.2d 613, 614 (Mo.App.1982). Further, we must read the agreement as a whole:

A separation agreement is an integrated writing; each provision bears on the others. In Re Marriage of Linnenburger, 741 S.W.2d at 878. If a court were to enforce some of the terms of the agreement while ignoring others, the agreement may not only become imbalanced, but may also become an agreement not in accord with what the parties originally had intended it to be. Id. Thus, the terms of a contract must be read as a whole. Village of Cairo v. Bodine Contracting Company, 685 S.W.2d 253, 264 (Mo.App.1985). “Each term is construed to avoid an [e]ffect which renders other terms meaningless: a construction which attributes a reasonable meaning to all of the provisions of the agreement is preferred to one which leaves some of them without function or sense.” Id.

Bolton, 950 S.W.2d at 271. See also Andes v. Albano, 853 S.W.2d 936, 941 (Mo. banc 1993); Wheeler, 999 S.W.2d at 285.

3. Fiduciary Duty

If a settlement agreement requires a spouse to hold property for the other spouse’s benefit, the spouse holding the property has a fiduciary duty to the other spouse with respect to that property. See McCreary v. McCreary, 954 S.W.2d 433, 451 (Mo.App.1997); First Nat. Bank v. Eucalyptus, 752 S.W.2d 456, 459-60 (Mo.App.1988). See also Marshall v. Grauberger, 796 P.2d 34, 36-38 (Col.App.1990). Further, if a party retains property belonging to another, the retaining party has a fiduciary duty to the owner with respect to that property. See Prindable v. Walsh, 69 S.W.3d 912, 915, 917 (Mo.App.2002). Thus, if a settlement agreement or a judgment has awarded property to a spouse, with no direction to the other spouse to continue to hold it, but the other spouse retains the property, the retaining spouse owes a fiduciary duty to the other spouse with respect to that property.

A spouse’s fiduciary status gives rise to certain legal duties, including the obligation to maintain complete and accurate records of the property held, McCreary, 954 S.W.2d at 451, and account for his or her handling of the beneficiary’s property, Zelch v. Ahlemeyer, 592 S.W.2d 482, 485 (Mo.App.1979); Eucalyptus, 752 S.W.2d at 459-60. A fiduciary is also required to furnish records and information about the nature and amount of the trust property upon request. Restatement (Second) op Trusts § 173 (1959). And, a “beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust.” Restatement (Second) of Trusts, supra, at § 173 cmt. c. See also Ramsey, 914 S.W.2d at 388; Fletcher v. Fletcher, 253 Va. 30, 480 S.E.2d 488, 491 (1997); In re Estate of Dryden, 155 Neb. 552, 52 N.W.2d 737, 745 (1952).

ANALYSIS

In her motion to compel, wife alleged that husband failed to comply with a number of provisions of the Property Agreement pertaining to the division of certain property. In its judgment, the court organized its findings and conclusions according to each property interest, and the parties have briefed the issues in this format. Accordingly, we will follow that format in our analysis.

1. Limited Liability Companies and Partnership

a. Wife’s Allegations

In paragraph 2 of her motion, wife alleged that Paragraph 4.4 of the Property Agreement awarded to her one-half of husband’s ownership interest in the following limited liability companies and partnership: Columbia Lakes, LLC; Seventy Seventy, LLC; Belleau Development, LLC; Regents III, LLC; Eager Road Associates, LLC; and WNC Missouri Tax Credits XXXI, LP. She alleged that husband was ordered to direct the appropriate responsible party or entity to make the necessary transfers to divide husband’s ownership interests with wife. She also alleged that beginning January 1, 2004, each party was entitled to one-half of all distributions and losses attributable to their respective ownership interests. She further alleged that husband was ordered to hold property that could not be divided in trust, and in that circumstance, husband was ordered to provide wife with a letter from each entity setting forth all distributions made to him.

In paragraph 3 of her motion, wife alleged that she had repeatedly requested that husband direct the appropriate person or entity to transfer one-half of husband’s ownership interests in these companies and partnership, and she alleged, “upon information and belief,” that husband had made no efforts to effectuate those transfers and had not placed her interests in trust for her benefit. Finally, she alleged that husband had failed to provide her with a letter from each entity setting forth all distributions made to him by that entity.

b. Trial Court’s Findings and Conclusions

In its judgment, the trial court determined that judgment on the pleadings based on wife’s allegations in paragraphs 2 and 3 of her motion was warranted for several reasons. It first found that the Property Agreement required husband to direct the appropriate officer or entity to transfer the interest only if it was permissible under the books and records of the entity and if the entity’s management found the division to be practical. It also found that husband did not have a majority interest in any of these companies or the partnership because the Property Agreement showed husband had less than 50% ownership interest in each entity, and, as a result, husband could not control the management determinations of these entities. It further found that wife had acknowledged in the Property Agreement that she was not a shareholder of any of the companies and partnership, and concluded that wife therefore lacked standing to seek a court order requiring these non-party entities to divide husband’s interest. The trial court also characterized wife’s allegations as requesting relief directly from the various entities, which were not parties to the case. The trial court concluded that it had no jurisdiction to grant the relief and that this lack of jurisdiction justified judgment on the pleadings.

The trial court next found that wife failed to plead that it was permissible to divide any of the various entities and that, as a result, she failed to plead that “the prerequisites or conditions precedent to any duty on the part of [husband] have been met.” The trial court also found that wife failed to plead that husband had received any letters from the various entities, and that, as a result, the court could not compel husband to provide something he had not received. It further found that it lacked jurisdiction over the entities to require any of them to provide such a letter to husband because the entities were not parties to the action. Finally, the trial court found that that the Property Agreement did not require husband to “formally create a trust” in which to place half of his interest in the entities that could not be divided, and that it could not compel husband to comply with an order or obligation that was not part of the Property Agreement.

c. Applicable Provisions of Property Agreement

Paragraph 4.4 of the Property Agreement awarded to wife one-half of husband’s ownership interest in the limited liability companies and partnership listed above and, as relevant to paragraphs 2 and 3 of wife’s motion, provided:

1. The parties recognize that, in one or more instances, the relevant ownership agreements {e.g. operating agreement, management agreement, partnership agreement, etc.) may not permit the parties to divide [husband’s] ownership interest in kind on the books and records of the business; in other instances, management of a particular business may consider such a division in kind to be impractical or burdensome {e.g. because of the necessity to renegotiate and/or redraft bank or other financing documents). To the extent that a division in kind on the books and records of the business is permissible and management, in its sole discretion, considers such a division to be practical, [husband] shall direct the appropriate corporate officer, general partner, administrator, trustee or other responsible party (or entity) to make the necessary transfer in order to equally divide his ownership interest with [wife], such that after said transfer, [husband] will be the sole record owner of one-half (1/2) of said ownership interest and [wife] shall be the sole record owner of one-half (1/2) of said ownership interest.
* * *
3. To the extent that any or all of the aforesaid business interests are not to be divided in kind between the parties on the books and records of the business as referenced in subparagraph 1, then [husband] shall hold one-half (1/2) of his ownership interest in trust for the benefit of [wife]. With respect to each such business interest ... [husband] will account and pay to [wife] one-half (1/2) of the amount of all distributions received by [husband]. In this regard, [husband] shall, within fifteen (15) days after receipt of each distribution, pay to [wife] one-half (1/2) of the amount of said distribution. In addition, [husband] will provide to [wife] a copy of his K-l statements each year for each entity, promptly upon receipt, and a confirming letter from each company setting forth all distributions.

Section 8 of the Property Agreement covered taxes. Paragraph 8.2 of this section provided in part:

8.2 Beginning January 1, 2004, each party shall, for income tax purposes, report on his/her individual income tax returns (and pay all applicable taxes) all income generated, and all capital gain realized, from the ownership, operation, investment, sale, transfer or other disposition of any asset awarded to said party pursuant to this Agreement, and all other distributions of income flowing to each party from any asset (or portion thereof) awarded to either party therein.

Paragraph 8.3 of the Property Agreement provided:

8.3 The parties agree that the tax basis attributable to each property affected by this Agreement shall be the tax basis which the property had prior to the dissolution of their marriage. The parties agree that if and when any additional tax liability is incurred as a result of a sale or exchange of property divided under the terms of this Agreement, the party receiving the property, unless otherwise specifically stated in this Agreement, shall be responsible for the resulting tax due, if any, and shall hold the other party harmless from any and all such tax liability, including interest and penalties. The parties agree to cooperate with each other in order to be certain that each of the parties receives complete information concerning the income tax basis, or cost basis, of the respective assets received by each of them pursuant to the terms of this Agreement. Both parties shall cooperate in furnishing to the other person all information in his or her respective possession or control required by each of them which may be necessary for the timely filing of state or federal income tax returns.

Section 10 of the Property Agreement contained the General Provisions. Paragraph 10.4 of this section provided:

10.4 The parties each agree to execute the necessary deeds, waivers, releases and other documents, and to do all other things reasonably necessary, to accomplish and give effect to the provisions of this Agreement.
d. Analysis

Paragraph 4.4 of the Property Agreement gave husband specific duties with respect to wife’s one-half interests in the limited liability companies and the partnership. First, he was to direct the responsible parties to make the transfers to divide husband’s ownership interests with wife. If the relevant ownership agreement did not permit the division or transfer, or if management decided the division and transfer was impractical or burdensome, then husband was to hold wife’s share in trust, pay to her one-half of his distributions, and provide wife with a letter from the entities setting forth the amount of the distributions.

The Property Agreement referred repeatedly to husband’s ownership interests in each of these entities. The parties could agree to require husband, who had ownership interests, to direct the appropriate responsible party to make a division and transfer of husband’s ownership interests, whether or not a trial court had the power to do so in a dissolution decree. See Wheeler, 999 S.W.2d at 287; Bushell, 613 S.W.2d at 692 n. 1. This was husband’s duty under the Property Agreement; wife was not seeking to compel non-parties to take any action. Wife’s motion alleging her belief that husband had not directed the responsible parties to divide husband’s property interests stated a claim for enforcement of this duty. See Atkinson, 185 S.W.3d at 782. Whether husband took this action is an issue of fact precluding judgment on the pleadings.

If the property was not divisible for any reasons listed in the Property Agreement and the responsible parties could not accede to husband’s direction, then husband was required to hold the property in trust for wife, account to and pay to her one-half of his distributions, and confirm the amounts of those distributions in two ways, one of which was by sending her a letter from each entity confirming the amount of these distributions. Husband’s duty to hold the property in trust and husband’s duty to provide letters are in dispute in this appeal. We consider them separately.

First, the Property Agreement required husband to hold wife’s share of the property in trust if it could not be divided in kind. In addition, even if the Property Agreement had not also specifically provided that husband hold the property in trust, husband had a fiduciary duty to wife with respect to this property because the Property Agreement required husband to hold property awarded to wife. See McCreary, 954 S.W.2d at 451. The trial court misapplied the law in entering judgment on the pleadings on the ground that the Property Agreement did not require husband to “formally create a trust.”

Next, the Property Agreement required husband to provide the letters setting forth his distributions. This provision, along with the requirement in Paragraph 10.4 that husband do all things “reasonably necessary” to accomplish and give effect to the provisions of the Property Agreement, required husband to provide any letters in his possession or to obtain the letters to the extent he had the power to do so. Wife’s motion alleging husband’s failure to supply the letters stated a claim for enforcement of this provision. See Atkinson, 185 S.W.3d at 782. Whether husband complied with this provision created an issue of fact, precluding judgment on the pleadings.

The trial court also misapplied the law in concluding that wife’s failure to plead “conditions precedent” entitled husband to judgment on the pleadings. A condition precedent is an act or event that must exist or occur before a duty to perform arises. State ex rel. State v. Parkinson, 280 S.W.3d 70, 76 (Mo. banc 2009) (citing Black’s Law Dictionary 293 (6th ed.1990)). The Property Agreement did not require any act or event to occur before husband had a duty to “direct” the entities to make a division and transfer of his ownership interests. Whether the businesses could be divided in kind was not a condition precedent to husband’s duty to take this action. Rather, if the response to husband’s direction was that his ownership interest in any of the businesses could not be divided in kind, then husband was to hold wife’s share in trust.

Finally, wife’s request for relief was confined to a request that husband be ordered to take the actions set out in Paragraph 4.4. She did not request that the court direct any non-party to take any action. The trial court erred in entering judgment on the pleadings against wife on the grounds of its lack of jurisdiction and wife’s lack of standing with respect to the allegations about her interests in the limited liability companies and partnership.

2. Stock in Kinexus Corporation

a. Wife’s Allegations

In paragraph 4 of her motion, wife alleged that Paragraph 4.2(f) of the Property Agreement awarded her one-half of the shares of preferred stock in Kinexus Corporation (Kinexus), or 534,375 shares. In paragraph 5, wife alleged that she had repeatedly requested husband to transfer or place in her name one-half of his preferred stock in Kinexus “to no avail.” She also alleged that husband was claiming that Kinexus was defunct and that husband had failed to provide her with any information to substantiate this claim, including information that would allow her to write off her awarded shares as a loss for tax purposes. In subsequent paragraphs of her motion, wife also alleged the provisions of paragraphs 8.3 and 10.4 of the Property Agreement, as previously set out in this opinion.

b. Trial Court’s Findings and Conclusions

In its judgment, the trial court concluded that wife was not entitled to the information about the status of Kinexus or information relevant to her taxes because the Property Agreement did not require husband to provide wife any information about Kinexus, and that the Property Agreement “merely indicates ... that the parties are to receive one-half of all shares that [husband] may have or does have in Kinexus Corporation.” It also concluded it lacked jurisdiction to enter an order compelling Kinexus to give wife information because Kinexus was not a party, and it entered judgment on the pleadings for this additional reason.

c. Applicable Provisions of Property Agreement

Paragraph 4.2(f) of the Property Agreement provides:

4.2 [Wife] shall be and is awarded, and [husband] hereby conveys to [wife] any and all right, title and interest which he may have or does have in the following property:
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(f) One-half (1/2) of the shares of preferred stock in Kinexus Corp. held in the name of [husband] (total number of shares held is approximately 1,068,750).
d.Analysis

The Property Agreement awarded to wife one-half of husband’s preferred stock in Kinexus. It also required husband to execute all documents and “do all other things” reasonably necessary to accomplish and give effect to the Property Agreement. This language would include transferring the shares to her or placing them in her name. Wife’s motion alleging that husband had not taken either of these actions was sufficient to state a claim to enforce the transfer. See Atkinson, 185 S.W.3d at 782. It also raised a fact question about whether husband had done all things reasonably necessary to place the stock in wife’s name. Husband’s argument that his duty was satisfied solely by the conveyance language in the Property Agreement has no merit.

In addition, wife’s motion states a claim for any information or documentation in husband’s possession or control about the current status of Kinexus so that, if the shares had no value, wife could accurately report a loss or gain on her tax return. The Property Agreement specified that the tax basis of property subject to the Property Agreement was its basis prior to the dissolution. It required husband to provide wife with relevant income tax information, including the tax basis of assets transferred to her under the Property Agreement, and all information in his possession and control which may be necessary to wife’s timely filing of tax returns.

Husband contends he satisfied this obligation under Paragraph 8.3 by telling wife that Kinexus was “defunct;” that he was not required to substantiate this statement; and that because the Property Agreement conveyed the shares to wife, as shareholder, she could obtain the information from Kinexus. We disagree.

First, husband did not satisfy his obligations to provide tax information by telling wife the corporation was “defunct.” Husband was required to furnish wife with the basis prior to the dissolution, and, because he allegedly retained these shares, any information he had in his possession or control about its value since the dissolution necessary for wife’s tax returns. In addition, wife’s motion alleged husband’s failure to transfer the shares or place them in her name, which allegations establish husband’s fiduciary duty to wife with respect to her Kinexus stock. See Prindable, 69 S.W.3d at 915, 917; McCreary, 954 S.W.2d at 451. As a fiduciary, husband was required to keep complete and accurate records, McCreary, 954 S.W.2d at 451, including records of assets held for wife, Zelch, 592 S.W.2d at 485, and provide wife with information about the value of her assets on request, see Restatement (Second) of Trusts, supra, at § 173.

Second, the pleadings did not establish that wife could independently obtain the Kinexus information as a shareholder. The Kinexus stock was an asset conveyed to wife under the Property Agreement. However, wife’s motion alleged that the shares had not been transferred to her or placed in her name. Thus, wife’s allegations support a reasonable inference that she did not have the status of shareholder with respect to Kinexus.

Finally, wife’s motion sought only information and documents that were in husband’s possession or control and husband’s performance of the Property Agreement. The trial court erred in entering judgment on the pleadings on wife’s claims relating to Kinexus on the ground that it did not have jurisdiction to grant relief on these allegations because Kinexus was not a party.

Wife’s motion stated a claim for an order requiring husband to provide the requested information about Kinexus. See Atkinson, 185 S.W.3d at 782. It also raised fact issues about whether husband had the requested information about the Kinexus shares in his possession or control and whether he provided the information to her, which also precludes judgment on the pleadings.

3. Eager Road Promissory Notes

a. Wife’s Allegations

In paragraphs 6 through 9 of her motion, wife alleged that paragraphs 4.2(g) and 4.2(h) of the Property Agreement awarded to her one-half of two promissory notes receivable (dated April 23, 2003 and April 15, 2003) payable to husband from Eager Road Associates, Inc. She also alleged husband was ordered to pay to her one-half of the principal and interest he received from each of the promissory notes. She further alleged that she requested husband to provide copies of the two promissory notes to her, as well as a complete accounting of any payments made pursuant to those notes “to no avail.” In subsequent paragraphs of her motion, wife also alleged the provisions of paragraphs 8.3 and 10.4 of the Property Agreement, as previously set out in this opinion.

b. Trial Court’s Findings and Conclusions

The trial court found that nothing in paragraphs 4.2(g) or 4.2(h) required husband to provide wife with copies of the promissory notes or to provide wife with an accounting of payments on the notes, and that such an order would exceed its jurisdiction. The trial court also found that wife had the opportunity to receive the information she sought during discovery before the parties entered into the Property Agreement, and she was precluded from obtaining it now by virtue of Paragraph 10.7 of the Property Agreement. It further found that wife failed to plead that husband had copies of the notes in his possession; that if husband were ordered to produce the notes, he would have to request them from Eager Road Associates, which would compel a non-party to act; and that this was beyond the court’s jurisdiction.

c. Applicable Provisions of Property Agreement

Paragraphs 4.2(g) and 4.2(h) of the Property Agreement awarded one-half of the amounts received from two promissory notes receivable from Eager Road Associates, Inc., to wife. The relevant portions of those paragraphs provided:

4.2 [Wife] shall be and is awarded, and [husband] hereby conveys to [wife] any and all right, title and interest which he may have or does have in the following property:
(g) One-half (1/2) of the promissory note receivable from Eager Road Associates, Inc. dated 4/24/08 (total principal amount is $426,278.78). [Husband] will pay to [wife] her one-half (1/2) of all amounts of principal and interest, promptly upon his receipt of any such payments. [Wife] shall pay all income taxes due on her portion of the note payments.
(h) One-half (1/2) of the promissory note receivable from Eager Road Associates, Inc. date 4/15/03 (total principal amount is $717,261.96). [Husband] will pay to [wife] her one-half (1/2) of all amounts of principal and interest, promptly upon his receipt of any such payments. [Wife] shall pay all income taxes due on her portion of the note payments.

(Emphasis added)

In addition, paragraphs 8.3 and 10.4, previously set out, are relevant to these claims.

Further, the trial court referenced Paragraph 10.7 in the General Provision of the Property Agreement, which provides in part:

Each party acknowledges that he or she has had the opportunity to complete discovery, such as Interrogatories, Requests for Production of Documents, appraisals of business interests, real estate and other assets, and depositions, but has chosen not to do all or some of such discovery.
d.Analysis

The trial court erred in basing its judgment on its conclusion that nothing in paragraphs 4.2(g) or 4.2(h) required husband to give wife copies of the promissory notes or account for the payments. The Property Agreement is to be read as a whole. Bolton, 950 S.W.2d at 271. Paragraphs 4.2(g) and 4.2(h) each required wife to pay all income taxes due on her portion of the note payments; Paragraph 8.3 required husband to provide wife with all information in his possession or control required by her to timely file her income tax returns; and Paragraph 10.4 required husband to do all things reasonably necessary to give effect to the provisions of the Property Agreement. In addition, the conveyance of one-half of these notes to wife and the requirement that husband make interest and principal payments to wife were facts that give rise to a finding that husband was a fiduciary to wife for her share of these assets and for any note payments in his possession that belonged to her. McCreary, 954 S.W.2d at 451; Prindable, 69 S.W.3d at 915, 917. As a fiduciary, husband was required by law to account to wife for the note payments, McCreary, 954 S.W.2d at 451; Zelch, 592 S.W.2d at 485, and to provide her requested information about trust property, which would include copies of the notes, see Restatement (Second) of Trusts, supra, at § 173.

Wife’s motion alleging the conveyance of an interest in the notes to her and husband’s failure to give her a copy of those notes sufficiently stated a claim for a copy of the notes. See Atkinson, 185 S.W.3d at 782. Likewise, wife’s motion alleging the award of a one-half interest in the notes and payments, her request for an accounting of the payments, and husband’s refusal to provide such an accounting stated a claim for an accounting of those payments. Id. In addition, wife’s motion created a fact question on whether husband provided an accounting or copies of the notes, which also precludes judgment on the pleadings.

In addition, the trial court misapplied the law in concluding that wife’s right to copies of the notes was barred by the discovery waiver. In her motion, wife did not claim a right to property that she did not know about, but could have learned about in discovery. Rather, she was seeking a copy of a document representing an asset that she was awarded, that was disclosed before the Property Agreement was entered into, and that husband was holding for her benefit.

The trial court also erred in basing its entry of judgment on the pleadings on wife’s failure to plead that husband had possession of the notes. The notes were described in the Property Agreement as the “Eager Road promissory notes receivable” and were further described by principal amount, date, and payor. The Property Agreement recited husband’s agreement to pay to wife one-half of all amounts husband received as principal and interest on these notes. A valid promissory note presupposes delivery to the payee. See Jeude v. Eiben, 338 Mo. 373, 89 S.W.2d 960, 971 (1935); Caviness v. Andes & Roberts Bros. Const. Co., 508 S.W.2d 253, 256 (Mo.App.1974); 11 Am.Jur.2d Bills and Notes § 270 (1963). The language of the Property Agreement reasonably supports the inferences that husband was the payee on these notes and had possession of them. The trial court misapplied the law in concluding that wife had not stated a claim for copies of the notes because she failed to plead that husband possessed the notes. Whether husband actually had possession of the notes was an issue of fact precluding judgment on the pleadings.

Finally, wife sought only copies of the notes and the accounting of payments from husband. The trial court erred in entering judgment on the pleadings of these claims on the grounds that Eager Road would have to produce the notes and it had no jurisdiction to compel a non-party to act.

4. Silver Eagle Note Payable and Note Receivable

a. Wife’s Allegations

In paragraph 12 of her motion, wife alleged that Paragraph 4.5 of the Property Agreement awarded to her one-half of husband’s beneficial one-half ownership interest in the proceeds (principal and interest) of a ten-year promissory note dated December 2002, between Silver Eagle Distributors, Inc., as obligor, and Donald C. Musick, as obligee, representing $6,750,000.00 in principal awarded to her (Note Receivable). She further alleged that she was awarded one-half of husband’s share of a promissory note owed to Silver Eagle Distributors, Inc., as obligee (Note Payable), and was therefore obligated to repay the sum of $750,000.00 as a result of this obligation. She alleged, upon information and belief, that the Note Payable had been satisfied.

In paragraph 13 of her motion, wife alleged that she had repeatedly requested, both individually and through her attorneys, that husband provide her with documentation of the repayment of her share of the Note Payable to Silver Eagle Distributors, Inc. “to no avail.”

In paragraph 14 of her motion, wife alleged that Paragraph 4.5 of the Property Agreement awarded to each party one-half of all distributions received by husband from Mr. Musick as a result of husband’s beneficial one-half interest in the Note Receivable. She further alleged that both parties were to be issued annual U.S. Treasury Form 1099s detailing each of their taxable distributions and deductible interest expense. In paragraph 15, she alleged she had repeatedly requested that husband provide her with Form 1099s for the years 2004 through 2007 reflecting interest payments received on the Note Receivable “to no avail.”

In paragraph 16 of her motion, wife alleged that Paragraph 4.5 of the Property Agreement ordered husband to provide her with an accounting of the amount of principal and interest received by husband pursuant to the Note Receivable. She further alleged she had repeatedly requested that husband provide her with such an accounting “to no avail.”

In paragraph 17 of her motion, wife alleged that Paragraph 4.5 of the Property Agreement ordered husband to not assign, transfer, or encumber his portion of the Note Receivable without wife’s prior written consent. In paragraph 18, wife alleged, “on information and belief,” that husband “impliedly or expressly allowed and/or caused the terms of the [Note Receivable] to be renegotiated,” without wife’s knowledge or prior consent. She further alleged that as a result of husband’s actions or inactions, the length of time for repayment of the Note Receivable had been extended, and the principal and interest amount owed had been reduced. She also alleged that she had repeatedly requested a copy of the renegotiated Note Receivable “to no avail.”

b. Tried Court’s Findings and Conclusions

The trial court found that husband was not a payor or payee on these notes. Rather the court concluded that Silver Eagle Distributors, Inc. (Silver Eagle) and Donald C. Musick were the payor and payee, that they were not parties to the Motion to Compel, and that it had no jurisdiction to order documentation of the repayment or any other act by these non-parties.

The trial court also found that the Property Agreement did not require husband to provide wife with the Form 1099s because Paragraph 4.5 stated, “U.S. Treasury Form 1099s shall be issued,” but did not indicate which party was responsible for producing the forms. It found that because husband was not a payor or payee on the notes, he could not control the issuance of tax forms. It concluded that since it did not have jurisdiction over Silver Eagle, it could not compel Silver Eagle to provide the forms. It further concluded that because the Property Agreement did not indicate that husband must provide Form 1099s, and because husband was not a payor or payee on the Silver Eagle notes, husband could not control the issuance of Form 1099s, and an order compelling him to provide these forms would be improper.

With respect to the renegotiation of the Note Receivable, the trial court found that because husband was not a payee or payor on the Note Receivable, he could not cause or prevent the renegotiation. The trial court found that husband was not required to provide wife with copies of either the original or the renegotiated note under the terms of the Property Agreement. The trial court also found that ordering husband to produce a copy of the renegotiated note would have the effect of compelling Silver Eagle to provide such a note, which would be improper because the court lacked jurisdiction to do so.

The trial court concluded that paragraphs 8.3 and 10.4 did not support wife’s motion because it had no jurisdiction over non-parties and those paragraphs do not compel husband to provide information not in his possession and over which he does not have authority or control. The trial court did not explicitly address wife’s request for accounting.

c. Applicable Provisions of Property Agreement

Paragraph 4.5 of the Property Agreement provides in full:

4.5 Silver Eagle Promissory Note. [Husband] represents and warrants that he is the beneficial owner of a one-half (1/2) interest in the proceeds (principal and interest) of a 10-year promissory note dated December, 2002, between Silver Eagle Distributors, Inc., as Obligor, and Donald C. Musick (hereinafter “Mu-sick”), as Obligee (hereinafter “note receivable”). The principal amount of [husband’s] one-half (1/2) interest in the note receivable is approximately $13,500,000.00. Pursuant to the terms of the note receivable, monthly payments of principal and interest are made by Silver Eagle to Musick. Musick, in turn, makes monthly payments to [husband], as a pass-through, equal to one-half (1/2) of the amount of the Silver Eagle payments to Musick.
In addition, by agreement, [husband] is obligated for one-half (1/2) of the amount due from Musick to Silver Eagle on a promissory note (hereinafter “note payable”) as a result of loans/advances made to Musick and [husband]; the principal amount of [husband’s] one-half (1/2) of the note payable is $1,500,000.00. As with the note receivable, Musick and [husband] are obligated to make monthly payments of principal and interest to Silver Eagle on the note payable.
The parties agree that [husband’s] one-half (1/2) interest in the note receivable and in the note payable shall be divided equally between the parties. In this regard, the parties further agree as follows:
(a) [Husband] irrevocably assigns, conveys and transfers to [wife] one-half (1/2) of his rights in and to the proceeds of the note receivable and one-half (1/2) of his financial obligation pursuant to the note payable. Likewise, [wife] hereby accepts, as her sole obligation, one-half (1/2) of [husband’s] obligations, financial and otherwise, pursuant to the terms of the note payable.
(b) Beginning January 1, 2004, the parties shall each be entitled to one-half (1/2) of all distributions received by [husband] from Silver Eagle via pass-through from Musick. Likewise, the parties shall each be responsible for payment of all amounts of principal and interest due to Silver Eagle from [husband] pursuant to the terms of the note payable. The parties shall each be responsible for one-half (1/2) of all taxes (income or other taxes) and other costs and financial obligations attributable to their one-half (1/2) share of all distributions received. In this regard, U.S. Treasury Form 1099s shall be issued to both parties annually for their one-half (1/2) share of all taxable distributions, and their one-half (1/2) share of all deductible interest expense (if any). Each month, [husband] shall pay to [wife] one-half (1/2) of the amount of the distributions received by [husband] from Musick, promptly upon receipt of said distributions. In addition, [husband] shall provide [wife] with an accounting of the amount of principal and interest received by him under the note receivable and the amount of principal and interest paid under the note payable. [Husband] agrees not to assign, transfer or encumber his portion of the Silver Eagle note without [wife’s] prior written consent.
(c) In the event that the Silver Eagle note receivable is prepaid before the end of the current term of the note (i. e. the principal balance of the note is paid by Silver Eagle prior to December 1, 2012), then, and in that event only, [husband] shall pay to [wife] the cash sum of $11,000.00 per month for the balance of the term of the note, beginning on the 1st day of the month following the date on which the principal balance of the note is paid and continuing on the 1st day of each month thereafter through and including the last payment on December 1, 2012. Payments made by [husband] pursuant to this paragraph 4.5(c), if any, are intended to be a partial distribution of property and, as such, said payments shall not be taxable to [wife] nor deductible by [husband] for income tax purposes. [Husband’s] obligation to make payments to [wife] as above stated shall only arise in the event the principal balance of the note is paid prior to December 1, 2012; [husband] shall not have any obligation to make any payments to [wife] in the event of any other occurrence (ie. other than the above stated prepayment) affecting the validity, value, payment or collec-tibility of the note.
d. Analysis

In the Property Agreement, husband warranted that he was the beneficial owner of a one-half interest in the proceeds of the Note Receivable and that “[p]ursuant to the terms of the note receivable,” that Silver Eagle made monthly payments to Mr. Musick, and that Mr. Musick, “as a pass-through,” made monthly payments of one-half of the amount received to husband. Husband also represented and warranted that “by agreement” he was obligated to repay one-half of the amount due from Mr. Musick to Silver Eagle on the Note Payable. The two notes and any assignments or subsidiary agreements by which husband became a beneficial owner of one-half of the Note Receivable and obligated to pay on the Note Payable were not before the trial court. However, the representations and warranties in the Property Agreement setting out husband’s beneficial ownership interest in the Note Receivable and his obligations on the Note Payable were sufficient to support a reasonable inference that he had possession and control of information and documentation concerning the notes. The trial court erred in concluding that because husband was not named in the Property Agreement as payor or payee on the notes, he had no interest sufficient to control their possession, production, or renegotiation.

The Property Agreement awarded wife one-half of the distributions husband received from Silver Eagle through Mr. Mu-sick. It required husband to pay wife one-half of the distributions received from Mr. Musick each month. It made each party responsible for taxes on each one’s one-half share of all distributions, and in Paragraph 4.5(b), it required Form 1099s to be issued to each annually for each one’s share:

The parties shall each be responsible for one-half (1/2) of all taxes (income or other taxes) and other costs and financial obligations attributable to their one-half (1/2) share of all distributions received. In this regard, U.S. Treasury Form 1099s shall be issued to both parties annually for their one-half (1/2) share of all taxable distributions, and their one-half (1/2) share of all deductible interest expense (if any) ....

(Emphasis added.) Wife alleged that husband had failed to provide Form 1099s to her. The trial court concluded, and husband argues, that the Property Agreement did not require husband to provide Form 1099s to wife, because it only said that the Form 1099s “shall be issued.” We disagree.

In interpreting this provision, we must give it a reasonable meaning so that it is not left without function or sense. Bolton, 950 S.W.2d at 271. We first examine the failure to specify who was to provide the Form 1099s. Federal tax law controls the determination of who must issue Form 1099s and who is entitled to receive Form 1099s. Neither a court nor a settlement agreement may order someone to assume or be relieved of duties relative to Form 1099s in contravention of federal tax law. Thus, the Property Agreement could not designate who was to provide the Form 1099s.

We next consider how this language may reasonably be interpreted to give it effect in the context of the Property Agreement as a whole. The Property Agreement was designed to divide property interests and income generated by that property, some of which, like the Note Receivable and the Note Payable, entailed ongoing distributions of income or ongoing payment obligations. It was also designed, as reflected in Paragraph 8.2, to make each party responsible for all income taxes on that party’s share of the property divided. In this context, a reasonable interpretation of the language in Paragraph 4.5(b) is that it requires the division of the two notes to be structured in such a way that under federal law each party would receive Form 1099s. Since husband’s property interests were being divided, it would then be his duty under paragraphs 4.5(b) and 10.4 to execute the paperwork accomplishing the division so that wife would receive her own Form 1099s. Wife’s motion alleging this provision in the Property Agreement and her failure to receive Form 1099s stated a claim for relief against husband to divide his interest in such a way that wife would be entitled to Form 1099s. These allegations also raised fact issues about whether wife was receiving Form 1099s and, if not, whether husband had taken all actions in his power to divide his interests so that wife would be entitled to Form 1099s on these distributions, which also precludes judgment on the pleadings.

The Property Agreement also required husband to provide wife with an accounting of the principal and interest received by him under the Note Receivable. Wife’s motion alleging this duty and husband’s failure to honor her request for an accounting was sufficient to state a claim for this relief. See Atkinson, 185 S.W.3d at 782.

In addition, the Property Agreement required husband to provide wife with an accounting of the amount of principal and interest paid on the Note Payable. Wife’s motion alleging this duty and that husband failed to provide her with documentation of the repayment of her share of the Note Payable are sufficient to state a claim for relief under this provision of the Property Agreement. See id.

Wife also alleged that husband had renegotiated the Note Receivable, in violation of the Property Agreement, and had refused to provide her with a copy of the renegotiated note. Paragraph 4.5(b) of the Property Agreement prohibited husband from encumbering his portion of the note:

“[Husband] agrees not to assign, transfer or encumber his portion of the Silver Eagle note without [wife’s] prior written consent.”

The award to wife of an interest in husband’s portion of the note made husband a fiduciary of wife’s share of the note. See McCreary, 954 S.W.2d at 451. As a fiduciary, he was required to fully inform wife of all facts relating to the subject matter of the trust which were in his knowledge and which were material for her to know for the protection of her interests. Ramsey, 914 S.W.2d at 388; Fletcher, 480 S.E.2d at 491; Dryden, 52 N.W.2d at 746; Restatement (Second) of TRUSTS, supra, at § 173 cmt. c. This would include advising her of a renegotiation of the note. Wife was not required, as husband argues, to allege when the Note Receivable was renegotiated or how the renegotiation affected the interest in the note, as this was all information within husband’s control. See 61A Am.Jur.2d Pleading § 80 (1981); 71 C.J.S. Pleading § 9 (2000). Wife’s motion sufficiently alleged facts stating a claim for an order requiring husband to provide her with any documentation, including the renegotiated Note Receivable, evidencing a change in the terms of the Note Receivable. The trial court erred in entering judgment on the pleadings based on its conclusion that wife had not stated a claim for a copy of the renegotiated Note Receivable.

Finally, wife’s motion did not seek relief or performance from Silver Eagle or Mr. Musick. The trial court erred in entering judgment on the pleadings based on its conclusion that it did, and that, as a result, it had no jurisdiction.

Conclusion

For all of the above reasons, the trial court erred in granting judgment on the pleadings in husband’s favor. The judgment of the trial court is reversed and the case is remanded.

CLIFFORD H. AHRENS and NANNETTE A. BAKER, JJ., concur.

      . Section 173 of the Restatement (Second) of Trusts provides:
      The trustee is under a duty to the beneficiary to give him upon his request at reasonable times complete and accurate information as to the nature and amount of the trust property, and to permit him or a person duty authorized by him to inspect the subject matter of the trust and the accounts and vouchers and other documents relating to the trust.

        See also Ramsey v. Boatmen’s First Nat. Bank of Kansas City, 914 S.W.2d 384, 388 (Mo.App.1996).

      . Further, this argument calls for a resolution of wife’s claim on the merits by asking the court to consider matters outside wife's motion. The issue is whether, giving wife the benefit of all reasonable inferences from the facts alleged in her motion, wife stated a claim for relief; not whether her theory would ultimately be viable. See A.R.H. v. W.H.S., 876 S.W.2d 687, 688 (Mo.App.1994).

      . The parties represented in the Property Agreement that "each party has made a full disclosure to the other of all properties and assets owned by them.”

      . Husband argues that this issue is moot because certain documents he provided during discovery satisfy his duty to provide an accounting. This argument also calls for a resolution of wife’s claim on the merits by asking the court to consider matters outside wife’s motion. As we previously stated, the issue is whether, giving wife the benefit of all reasonable inferences from the facts alleged in her motion, wife stated a claim for relief, not whether her theory would ultimately be viable. See A.R.H., 876 S.W.2d at 688.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Susan GALLAGHER (Carlyle), Respondent, v. Richard M. GALLAGHER, Appellant.
    No. WD 71104.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Leonard K. Breon, Esq., Warrensburg, MO, for appellant.
    Kenneth C. Hensley, Esq., Raymore, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Richard Gallagher appeals the trial court’s judgment denying his motion to modify the child custody provisions of the decree dissolving his marriage to Respondent Susan Carlyle (formerly Gallagher). We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


author: ROBERT S. BARNEY, Judge.

text:
    Dale Wayne GOOCH, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29981.
    Missouri Court of Appeals, Southern District, Division One.
    May 6, 2010.

      Alexa I. Pearson, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   ROBERT S. BARNEY, Judge.

Dale Wayne Gooch (“Movant”) appeals the motion court’s denial following an evi-dentiary hearing of his postconviction motion filed pursuant to Rule 24.035. In his sole point relied on, he argues he received ineffective assistance of counsel because his two attorneys “unreasonably failed to move the trial court for a mental examination to determine if [he] was competent to proceed ... We affirm the judgment and findings of the motion court.

Movant was charged by “Information in a Felony Case” with three counts of the unclassified felony of statutory sodomy in the first degree, violations of section 566.062, Cum.Supp.2006. On February 26, 2008, Movant appeared before the plea court and pled guilty pursuant to a plea agreement which provided that “he could plead guilty to any of the three counts” charged in exchange for the State recommending his sentence be “capfped]” at twenty-five years. Movant pled guilty to Count I of the Information which charged that he “had deviate sexual intercourse with [the victim], who was then less than twelve years old, by touching his penis to her genitals.” Following this hearing, it was determined by the plea court that Movant pled guilty to the wrong count and that he intended, in fact, to plead guilty to Count III, which asserted he “had deviate sexual intercourse with [the victim], who was then less than twelve years old, by placing her hand on his penis.”

As a result, the plea court held another hearing on March 25, 2008, at which Mov-ant appeared with counsel, Reginald Willi-by (“Attorney Williby”), and he was allowed to withdraw his guilty plea to Count I and enter a guilty plea to Count III. Movant informed the trial court of his intention to plead guilty to Count III; that he had consulted his attorney about pleading guilty; that he understood the range of punishment he was facing for that crime; that he was waiving his right to trial as well as other rights; that he was waiving his right to testify on his own behalf; that he understood the terms of the plea agreement with the State; and that he was satisfied with his counsel’s representation of his interests. He then informed the plea court that he desired to plead guilty to Count III because he was “in fact guilty of this crime.” The plea court then found Movant’s plea “has been made freely and voluntarily and with a full understanding of the rights and of the consequences of that plea.” The plea court then accepted Movant’s plea and ordered a presentence investigation report.

At the sentencing hearing on May 13, 2008, the State reiterated that it was recommending a cap of twenty-five years on Movant’s sentence as well as recommending Movant serve the full twenty-five years. The State then took issue “with the [presentence investigation report’s finding] that [Movant] was at low-risk to re-offend, for the simple fact that he admitted to doing this more than 10 times and admitted to being aroused by a six-year-old child.... ” Movant’s counsel then admitted Movant’s conduct toward the victim was “both heinous and appalling,” however, he believed Movant should be sentenced to ten years imprisonment and asked the sentencing court to “take into consideration that [Movant] is disabled, and he’ll be going into a very vicious environment.... ” Having fully reviewed the presentence investigation report, the sentencing court sentenced Movant to twenty-five years in the Missouri Department of Corrections and dismissed Counts I and II which were still pending against him. Following pronouncement of the sentence, Movant informed the sentencing court he was satisfied with his representation by Attorney Williby as well as his previous counsel, Derrick Williams (“Attorney Williams”).

On June 18, 2008, Movant filed a pro se “Motion to Vacate, Set Aside or Correct the Judgment or Sentence” pursuant to Rule 24.035. The motion court appointed counsel to represent Movant and on December 12, 2008, an amended Rule 24.035 motion was filed.

An evidentiary hearing on this motion was held on July 17, 2009. Movant testified at the hearing that he has suffered from spina bifida since birth and that both of his attorneys had been made aware of his condition. He testified that spina bifi-da is a physical condition where the area between your spine and your brain “doesn’t close off....” He related his spi-na bifida affects his ability to understand and he has “slow learning disabilities and there’s certain things ... that [he] can’t comprehend ... like most people can.” He stated he remembered discussing the possibility of his having a mental evaluation with both Attorney Williby and Attorney Williams, but it was never done and he was unsure why they did not request one. He stated that when the charges and the plea agreement were explained to him he “didn’t completely understand them.... ” With that being said, he admitted he understood “that there were three separate counts;” that “the State was willing to dismiss two of them in exchange for a plea on the third;” that he understood “the range of punishment on each count was ten years to life ...;” and that he knew probation or “120 days shock” incarceration was not an option based on the charges against him. He further admitted that his mental condition or health had “not changed at any time” between the present and the time of his plea.

Attorney Williams testified that Mov-ant’s parents informed him about Movant’s physical and medical condition; that they also discussed his cognitive issues with him; and that he felt Movant had some “diminished mental capacity.” Movant’s parents told Attorney Williams that Mov-ant had difficulty in school especially in the 8th or 9th grade such that they removed him from school because he was not progressing with his grade level. He related that he was aware Movant had a “shunt” to help him deal with fluid in his spinal column and that he was aware that spina bifida can cause some cognitive impairment; however, he related no significant cognitive impairments manifested themselves in his conversations with Movant. He stated that throughout his representation Movant gave him the impression that he “understood the nature of the charges against him, the range of punishment associated with those charges, and the procedural posture of the case and the procedures that would occur.... ” Attorney Williams also stated that Movant was able to actively and intelligently participate in discussions about his case and appeared to understand their mutual discussions and the evidence alleged against him. He stated he did not raise a competency defense because he felt there was no basis for such a concern. He stated that throughout his dealings with Movant “[t]here was nothing about his conduct that addressed those factors under that competency standard under the law. There was nothing about his conduct that would suggest he was incompetent to proceed.” Attorney Williams likewise recited that the case law and the statutes on competency say that “all one has to do is understand the nature of the charges against them — and ... [Movant] understood that....” He likewise related he knew Movant understood the range of punishment against him and Movant always appeared to understand him during their conversations. Accordingly, he felt that based on Movant’s interaction with him there was no need to explore Movant’s competency prior to entering the guilty plea.

Attorney Williby testified that Movant led him to believe that he understood the charges against him, the criminal procedures he was undergoing, and the range of punishment he was facing. He related Movant actively participated in his defense, discussed his confession at length with Attorney Williby, and seemed to understand everything that was occurring. He related he was also aware of Movant’s school records which indicated he had failed 8th grade four times such that “he was removed from school.” Attorney Wil-liby also stated he was aware Movant suffered from spina bifida and he knew of the various physical and mental issues which can arise from such a condition. Attorney Williby opined that because Movant understood the charges against him and the legal proceedings he was participating in, there was no reason for Attorney Williby to explore the issue of his competency under the facts and the law. He stated if he had had valid concerns he would have explored the issue of Movant’s competency-

On August 17, 2009, the motion court entered its “Judgment” and “Findings of Fact and Conclusions of Law.” In its findings, the motion court concluded “[t]here is no persuasive evidence that [M]ovant had a mental disease or defect that excluded him from responsibility for his criminal conduct; neither was there persuasive evidence that he was not competent to plead guilty.” Further, it determined Movant’s attorneys “considered [his] mental status and correctly concluded that a[n] [incompetence defense] was not viable, and that he was competent to proceed.” As a result, the motion court denied Movant’s amended Rule 24.035 motion. This appeal followed.

In his sole point relied on, Movant maintains the motion court erred in denying his Rule 24.035 motion

in that counsel unreasonably failed to move the trial court for a mental examination to determine if [Movant] was competent to proceed, even though counsel was aware that [Movant] was born with spina bifida, that he has a shunt to help keep fluid from collecting around his brain stem and spinal column, and that his condition causes him to have impaired intellectual functioning, and counsel’s failure to request adjudication of this issue prejudiced [Movant] because he entered his plea in an involuntary and unknowing manner, and was convicted and sentenced even though he did not have a rational and factual understanding of the proceedings against him and could not assist in his own defense.[]

“Appellate review of an order sustaining or denying a motion for [post-conviction] relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous.” Murta v. State, 257 S.W.3d 671, 674 (Mo.App.2008); see Rule 24.035(k). “ ‘The findings of the motion court are presumptively correct.’” Id. (quoting Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991)). “The clearly erroneous standard is satisfied only if, after a review of the entire record, this Court is left with the definite and firm impression that a mistake has been made.” Id. We presume that the motion court’s findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). Movant bears the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence. Huth v. State, 976 S.W.2d 514, 516 (Mo.App.1998).

“To prevail on a claim of ineffective assistance of counsel where a movant has entered a plea of guilty, a ‘movant must show his counsel’s representation fell below an objective standard of reasonableness and that, as a result, he was prejudiced.’ ” Boyd v. State, 205 S.W.3d 334, 338 (Mo.App.2006) (quoting Cupp v. State, 935 S.W.2d 367, 368 (Mo.App.1996)); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Movant must show, but for the conduct of his trial attorney about which he complains, he would not have pleaded guilty but would have insisted on going to trial.” Cupp, 935 S.W.2d at 368. “Should a mov-ant fail to satisfy either the performance prong or the prejudice prong of the test, the other prong need not be considered.” Johnson v. State, 5 S.W.3d 588, 590 (Mo.App.1999). Where, as here, there is a negotiated plea of guilty, a claim of “ineffective assistance of counsel is immaterial except to the extent it impinges upon the voluntariness and knowledge with which the plea of guilty was made.” Cupp, 935 S.W.2d at 368.

In order to demonstrate that counsel was ineffective in failing to investigate an alleged mental disease or defect defense, a movant must show facts indicating a questionable mental condition. State v. Roll, 942 S.W.2d 370, 376 (Mo. banc 1997). “When a movant in a [postconviction] proceeding challenges his attorney’s failure to request a mental examination, he must show the existence of a factual basis indicating the questionable nature of his mental condition, which should have caused the attorney to initiate an independent investigation of it.” Porter v. State, 928 S.W.2d 1, 2 (Mo.App.1996). “In the absence of some suggestion of mental instability, there is no duty on counsel to initiate an investigation of the mental condition of an accused” and “[t]he need for an investigation is not indicated where the accused has the present ability to consult rationally with counsel and to understand the proceedings.” Henderson v. State, 977 S.W.2d 508, 511 (Mo.App.1998). “In addition, this Court must look to the reasonableness of counsel’s conduct from counsel’s perspective at the time and eliminate hindsight from consideration.” Cook v. State, 193 S.W.3d 378, 386 (Mo.App.2006). Further, “ ‘[t]he suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial’ ” and it has been held that “ ‘an accused may be mentally retarded in some degree and still be competent to stand trial or enter a knowing, intelligent plea of guilty.’ ” Id. (quoting Henderson, 977 S.W.2d at 511).

In his point relied on and attendant argument, Movant appears to suggest that because his attorneys knew that he suffered from spina bifida and that he left school without graduating, they had an affirmative obligation to investigate his mental fitness to proceed. This Court, however, is unable to hold that, as a matter of law, counsel is ineffective if he knew only the foregoing facts. “The suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial.” Baird, 906 S.W.2d at 749. “Rather, the test must be ‘whether a mov-ant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Henderson, 977 S.W.2d at 511 (quoting Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)).

Here, Movant testified that he sometimes had difficulty comprehending issues, but that he was able to understand matters when they were “broke down” for him and more fully explained. He offered no other testimony about any mental issues from which he suffered. Attorney Williams acknowledged that Movant’s parents discussed his physical conditions, possible cognitive issues, and school record with him prior to Movant’s plea of guilty. Yet, Attorney Williams related he did not observe any significant cognitive impairments in his dealings and conversations with Movant, and stated that Movant conversed intelligently with him when they spoke with each other. Further, Attorney Williams testified that throughout his representation Movant gave him the impression that he “understood the nature of the charges against him, the range of punishment associated with those charges, and the procedural posture of the case and the procedures that would occur ...such that he opined that under the applicable statutory and case law he had no reason to be concerned about Movant’s competency to plead guilty. Similarly, Attorney Willi-by testified he was aware Movant suffered from spina bifida and that there were possible mental issues which could arise from such a disease; however, he felt Movant understood the proceedings against him and participated in his defense to such an extent that Attorney Williby had no reason to explore the issue of Movant’s competency. Movant has not proven that “but for the conduct of his [attorneys] about which he complains, he would not have pleaded guilty but would have insisted on going to trial.” Cupp, 935 S.W.2d at 368. Having found against Movant on the first element of his ineffective assistance of counsel claim, we are not required to consider the prejudice element of his claim. Johnson, 5 S.W.3d at 590. We cannot say the motion court clearly erred. Movant’s point is denied.

The judgment, findings of fact and conclusions of law of the motion court are affirmed.

BATES, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2008) and all statutory references are to RSMo 2000.

      . See sections 552.020.1 and 552.030.1.

      . Movant's point relied on is limited to the question of his counsels' failure to request a mental examination to determine his competency to proceed in his litigation. Both Mov-ant and the State expand this complaint outside the parameters of the stated point relied on. Issues not raised in the point relied on are not addressed on appeal. See Wenzel v. State, 185 S.W.3d 715, 719 (Mo.App.2006). As such, this opinion is limited to the issue stated in the point relied on.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In the Interest of B.M.O., K.W.J., and M.C.J., minors. Wayne County Juvenile Office, Petitioner-Respondent, v. S.A.J., Respondent-Appellant.
    No. SD 29710.
    Missouri Court of Appeals, Southern District, Division Two.
    May 6, 2010.

      Christopher L. Yarbro, Poplar Bluff, MO, for Appellant.
    Christina L. Kime, Piedmont, MO, for Respondent Wayne County Juvenile Office.
    Gary L. Gardner (No brief filed.), Jefferson City, MO, for Respondent Mo. Dept, of Social Services, Children’s Div.
    Cynthia A. Goforth, Piedmont, MO, for minors.
   NANCY STEFFEN RAHMEYER, Judge.

Sherry Johnson (“Appellant”) is the biological mother of B.M.O., K.W.J., and M.C.J. Upon a finding of neglect and abuse, the Circuit Court of Wayne County entered its judgment terminating Appellant’s parental rights on February 18, 2009, which she now appeals. Appellant filed a motion to strike certain items from the record, which was taken with the case. We deny the motion and affirm the judgment.

On June 22, 2005, the execution of a search warrant at the home of Appellant and her then-husband, Kenneth Johnson, uncovered evidence that Kenneth Johnson had sexually abused Appellant’s children, two of whom were also his biological children. The children were removed from the home and later placed in legal and physical custody of the Children’s Division of the Missouri Department of Social Services (“the Division”) after the Circuit Court of Wayne County found that: Appellant knew about, and participated in, the sexual abuse of her minor daughter on at least one occasion; knew or should have known about other instances of sexual abuse; and kept various items of drug paraphernalia in her bedroom.

The Division filed a petition for termination of parental rights, which was dismissed because the Division did not provide Appellant with the court ordered investigation and social study. Six months later, the Wayne County Juvenile Office (“Respondent”) filed a petition for termination of Appellant’s parental rights, alleging: that the children were subjected to sexual abuse by Kenneth Johnson of which Appellant either knew or should have known; that Appellant suffered from a chemical dependency preventing her from providing the necessary care, custody, and control of her children; and that Appellant had continuously failed to provide the children with adequate food, shelter, and education. Over Appellant’s objection, the court ordered the Division to complete an investigation and social study, and later set the cause for trial. At the termination trial, the trial court took judicial notice of Respondent’s file, which included an affidavit of publication as to sei'vice upon the biological father of B.M.O., a transcript of the pre-hearing conference, the investigation and social study, and the order for the social study, over Appellant’s objection to judicial notice of the social study.

FACTS

Ralph Muzney, the Division case manager assigned to the children, testified as to his role in investigating the situation and drafting the study, and also concerning Appellant’s continual contact with her children. Rhonda Allen, the foster parent with custody of K.W.J. and M.C.J., also testified regarding Appellant’s correspondence with her children. Respondent offered a letter sent to B.M.O. from one Michael Miller, an inmate and apparent acquaintance of Appellant, to demonstrate that Appellant had supplied B.M.O.’s address to an unknown person.

Tom Keeney, the deputy juvenile officer, testified that during his second home visit, he observed drug paraphernalia in Appellant’s bedroom and one nude picture of M.C.J. Keeney also testified that: K.W.J. had disclosed that Kenneth Johnson had sexually abused him; K.W.J. indicated that Appellant had walked in on one such instance of abuse; B.M.O. had disclosed that Kenneth Johnson had abused her; and B.M.O. indicated that she could smell drugs in the house and that Appellant would lock herself in her room. Keeney also read into the record several excerpts from internet chat logs purportedly authored by Appellant and Kenneth Johnson. The chats authored under a screen name used by Appellant indicated that Appellant had sought to obtain marijuana, and had forced someone to leave her house because that someone had molested her daughter.

Kenneth Nix, a detective with the Clayton Police Department serving as the operations supervisor for the computer crime unit, was present when the search warrant was executed. He testified regarding the computers seized in the search and the photos, data, and other information found on those computers upon further investigation. Nix identified the author of several of the chats to be Appellant.

Diane Silman, the executive director for the Ozark Foothills Child Advocacy Center and a forensic interviewer, testified that the children alleged sexual abuse committed by Kenneth Johnson, and that K.W.J. disclosed that one such instance occurred with Appellant’s knowledge. Following Silman’s testimony, two depositions given by B.M.O., one deposition given by K.W.J., and one deposition given by Denise Stephens, a family counselor for Appellant’s children, were received into evidence. The depositions contained testimony from B.M.O. and K.W.J. that they both believed Appellant knew about the sexual abuse, and testimony from Stephens that she had informed the children of the reason they were in foster care.

At the close of Respondent’s evidence, Appellant offered into evidence a handwritten letter from B.M.O. to Appellant, a transcript of a deposition given by M.C.J., a transcript of a deposition given by K.W.J., and a transcript of a deposition given by B.M.O. In those depositions, the children did not indicate that Appellant knew of the sexual abuse.

The trial court found by clear, cogent, and convincing evidence that the children had been abused and neglected by Appellant, pursuant to section 211.447.5(2), made the necessary findings under subsections 211,447.5(2)(a)-(d) and 211.447.7(1)-(7), and found that the termination of parental rights was in the best interest of the children.

STANDARD OF REVIEW

We must affirm the trial court’s judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In the context of a termination of parental rights case, we must determine whether the trial court properly determined that at least one statutory ground for termination exists based on the evidence before it, and whether the trial court properly found termination to be in the best interest of the child. In re K.A.C., 246 S.W.3d 537, 543 (Mo.App. S.D.2008). In doing so, we view the evidence in the light most favorable to the judgment, giving deference to the trial court’s credibility determinations. In re C.A.M., 282 S.W.3d 398, 405 (Mo.App. S.D.2009).

POINT I

In her first point, Appellant alleges that the trial court erred in finding the children had been in foster care for at least fifteen of the past twenty-two months as a ground for termination because Respondent had not pled the issue. This argument is misguided. Section 211.447.2(1) mandates that the Division file a petition to terminate parental rights when a child has been in foster care for at least fifteen of the most recent twenty-two months. The subsection acts as a “filing trigger,” but is not itself a sufficient ground on which to base the termination of parental rights. In re M.D.R., 124 S.W.3d 469, 476 (Mo. banc 2004). While the trial court did make a factual finding that the children had been in foster care for at least fifteen of the most recent twenty-two months, the trial court clearly stated that its ground for terminating parental rights was abuse and neglect by Appellant pursuant to section 211.447.5(2). Point I is denied.

POINT II

In her second point, Appellant argues that the trial court erred in terminating her parental rights because the court based its decision on past acts and failed to consider the likelihood of future harm. We disagree. As in In re T.M.E., 169 S.W.3d 581 (Mo.App. W.D.2005), the trial court made appropriate findings as to Appellant’s past behavior and predicted future conduct relevant to abuse and neglect that are supported by the evidence. Id. at 588. Among other findings, the trial court found: that Appellant suffers from a chemical dependency that prevents her from consistently providing the necessary care for her children; that Appellant committed a severe act or recurrent acts of physical, emotional, or sexual abuse toward her children, or knew or should have known about such acts committed by others; and that Appellant continuously failed to provide the children with adequate food, clothing, shelter, or education.

The use of words like “consistently,” “recurrent,” and “continuously” used to describe Appellant’s parental actions or lack thereof, along with evidence that she permitted the abuse without intervening, allows us to infer that the trial court believed she would continue to be a threat to the welfare of the children. In addition, the trial court found that Appellant’s incarceration since 2005 made it unlikely that future services would bring about a lasting parental adjustment that would enable the return of the children within an ascertainable time, and found that Appellant’s disinterest and lack of commitment to her children hinders any effort to provide services to aid in reunification.

Those findings are amply supported in the record. Exhibit 19, the letter from Michael Miller addressed to B.M.O., showed that Appellant had provided B.M.O.’s address to enable a convict to contact B.M.O. Combined with Exhibit 3, a letter from Appellant to B.M.O. informing her that Michael Miller would be contacting her, there is a sufficient basis to demonstrate that the trial court considered the likelihood of future harm in terminating Appellant’s parental rights. Appellant appeared to have no inclination to protect any of her children from her then-husband, who pled guilty and received sixty years in the federal penitentiary for his actions, or from potential future abusers. When added to the deposition testimony that Appellant was aware of the abuse, we have no problem finding no error in the trial court’s finding that Appellant abused and neglected the children and the inference that it would continue. Point II is denied.

POINT III

In her third point, Appellant argues that the trial court erred in admitting the hearsay testimony of Thomas Keeney, Diane Silman, and Denise Stephens regarding statements made by the children, in that they did not fall under a recognized hearsay exception. We disagree. Respondent concedes that the evidence complained of constitutes hearsay. This Court, however, has recognized an exception to the hearsay rule that allows the trial court to consider such statements for their truth where the best interest of the child is the primary concern. In re Marriage of P.K.A., 725 S.W.2d 78, 81 (Mo.App. S.D.1987). Where there is a substantial basis to believe a child’s statements are true, the court is justified in considering them to prevent future harm to the child. Id. The exception should only be used where abuse may have occurred or been threatened and the child may not be competent or reasonably expected to testify to it. Id.

Here, the trial court heard testimony regarding the evidence found in the search executed pursuant to the warrant that indicated that sexual abuse had occurred. This evidence provides a substantial basis to believe that the statements of the children were true. The ages of the children, the nature of the abuse, and the fact that the abuser was the parent of the victims provided sufficient grounds for the trial court to believe the children might not be competent to testify nor reasonably expected to. The trial court is afforded discretion to consider such testimony and determine its weight; we cannot say that discretion was abused here. Point III is denied.

POINT IV

In her fourth point, Appellant alleges that the trial court’s finding of abuse and neglect was not supported by clear, cogent, and convincing evidence. We disagree. “Clear, cogent, and convincing evidence is that which ‘instantly tilts the scales’ in favor of termination when weighed against the evidence presented by the parent whose rights were terminated.” In re C.A.L., 228 S.W.3d 66, 70 (Mo.App. S.D.2007) (quoting In re A.M.F., 140 S.W.3d 201, 205 (Mo.App. S.D.2004)). There was evidence linking a screen name used in internet chats to Appellant. Internet chat logs attributable to that screen name indicated that Appellant knew of Kenneth Johnson’s sexual abuse of her children. The same chat logs also demonstrated that Appellant suffered from a chemical dependency.

The testimony contained in depositions given by B.M.O. and K.W.J. also indicated that Appellant had a drug problem and knew about the sexual abuse. Both B.M.O. and K.W.J. stated that Appellant stayed in her room most of the time. B.M.O. testified that this was due to Appellant’s drug use; she also stated that she had told Appellant that Kenneth Johnson had sexually abused her. K.W.J. testified that Appellant had walked in on one instance of abuse by Kenneth Johnson, and seen three other instances of abuse, two involving him and one involving M.C.J.

We also note that in Appellant’s own deposition, she exercised her Fifth Amendment right against self-incrimination when asked: if she was present in the home while Kenneth Johnson sexually assaulted her children; if she posted or was aware that Kenneth Johnson posted pictures of her children on the internet; if she ever used illegal drugs; and if she asked Michael Miller to write to her children, among other questions. In a civil trial, a negative inference may be drawn from the invocation of Fifth Amendment privilege. In re Care and Treatment of Burgess, 147 S.W.3d 822, 833 (Mo.App. S.D.2004). This evidence tilts the scales in favor of termination when weighed against the earlier deposition testimony offered by Appellant. It therefore supports a finding of abuse and neglect under section 211.447.5(2). Point IV is denied.

POINT V

In her fifth point, Appellant argues that the trial court abused its discretion in ordering the Division to undertake the statutorily required investigation and social study because the Division’s participation in preparing it created an appearance of impropriety due to then-advocacy and recommendation of termination. Again, we disagree. In order for us to find that the trial court abused its discretion, we must find its actions to be “clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” In re C.G., 212 S.W.3d 218, 224 (Mo.App. S.D.2007). We find no such circumstance here.

Section 211.455.3 requires an investigation and social study to be completed by the juvenile officer, the division of family services, or a public or private agency authorized or licensed to care for children. As the trial court noted, the only options available in Wayne County were the juvenile officer, who was the moving party in the case, or the Division, who had care of the children. The court selected the Division because it was not a moving party in the case and, realizing the potential bias and prejudice involved, received the report “solely for the purpose of meeting the statutory requirement.” This well-reasoned approach was a far cry from shocking our sense of justice, and clearly indicated careful consideration by the trial court. Point V is denied.

POINT VI

In her sixth and final point, Appellant challenges the trial court’s judgment on the ground that the statutory requirements of section 211.455 were not met, in that the required investigation and social study was not performed. We disagree. Appellant acknowledges she did not object on the ground of compliance with section 211.455, so we review for plain error. Plain error is error that affects the substantial rights of a party and results in a manifest injustice or miscarriage of justice. Ruzicka v. Ryder Student Transp. Services, Inc., 145 S.W.3d 1, 15 (Mo.App. S.D.2004). Appellant relies on the testimony of Ralph Muzney stating that he did not undertake a new study, but utilized a study previously done in the 2006 termination case that was dismissed. While the study admitted in this case contains much of the same historical information as the earlier study, a review of the report, which was signed by Muzney on November 20, 2007, indicates that additional information was added to the report after the initial report had been prepared. The combination of the historical information with the new information met the statutory requirements of section 211.455. Point VI is denied.

In addition to her six points on appeal, Appellant also filed a motion to strike certain items in the appellate record on the ground that they were not items properly before the trial court. Exhibit 19 was offered into evidence, but Appellant’s hearsay objection was sustained, and it was received into evidence for the limited purpose of demonstrating that Appellant gave B.M.O.’s address to a convict so he could write to her. Exhibits offered into evidence but excluded by the trial court are properly part of the record on appeal. State v. Garris, 75 S.W.3d 367, 368 n. 1 (Mo.App. S.D.2002). As the remaining items referred to do not factor into our disposition of the case, the motion to strike is denied. See Schieber v. Schieber, 298 S.W.3d 130, 133 n. 2 (Mo.App. W.D.2009) (denying motion to strike party’s brief, appendix, and supplemental legal file on the ground that they included references to matters outside of the record because the court did not consider them in reaching its decision).

The judgment is affirmed.

LYNCH, P.J., McGHEE, SR J, concur.

      . At the time the present action commenced, B.M.O. was sixteen years old, K.W.J. was eleven years old, and M.C.J. was nine years old. At present, B.M.O. is eighteen, K.W.J. is fourteen, and M.C.J. is twelve.

      . Even though Appellant claimed at trial she was unaware of the abuse of the children, at this time she is fully aware of the serious and extended sexual exploitation of the children by Kenneth Johnson. It serves no purpose to detail the specifics.

      . All references to statutes are to RSMo Cum. Supp.2007, unless otherwise specified.