source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of B.V., B.V., K.V., and B.V., minors Juvenile Officer, Petitioner/Respondent, v. F.V., Respondent, and K.V., Respondent/Appellant.
    No. ED 92886.
    Missouri Court of Appeals, Eastern District, Division One.
    March 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2010.
    David R. Crosby, Hillsboro, MO, for appellant.
    Scott T. Summers, Hillsboro, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Mother appeals from the judgment of the trial court terminating her parental rights to her four minor children. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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

The judgment is affirmed in accordance with Rule 84.16(b).


author: GARY M. GAERTNER, JR., Judge.

text:
    Tara RICHARDSON, Claimant/Appellant, v. MERITORIOUS CARE, INC., and Division of Employment Security, Respondents.
    No. ED 93588.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 23, 2010.
    Tara Richardson St. Louis, MO, pro se.
    Meritorious Care, Inc. St. Louis, MO, pro se.
    Shelley A. Kintzel, Jefferson City, MO, for Div. of Employment Security.
   GARY M. GAERTNER, JR., Judge.

Tara Richardson (Claimant) appeals pro se from a final order of the Labor and Industrial Relations Commission, which affirmed a decision of the Division of Employment Security Appeals Tribunal denying employment compensation benefits. Claimant’s brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, and we therefore dismiss it.

This court recently dismissed a procedurally similar case after determining the pro se appellate brief so substantially failed to conform to Rule 84.04 that it preserved no allegations of error for appellate review. Johnson v. Buffalo Lodging Assocs., 300 S.W.3d 580 (Mo.App. E.D.2009). We apply the same analysis here.

Pro se appellants are held to the same standards as attorneys regarding Rule 84.04’s mandatory appellate briefing rules. See Pointer v. State, Dept. of Social Servs., 258 S.W.3d 453, 454 (Mo.App. E.D.2008) (per curiam). While we prefer to dispose of a case on the merits whenever possible, if the deficiencies in the brief are such that no claims are preserved for appellate review, then we must dismiss. Compare Johnson, 300 S.W.3d at 581-82, and Schaefer v. Altman, 250 S.W.3d 381, 384 (Mo.App. E.D.2008), with Gray v. White, 26 S.W.3d 806, 816 (Mo.App. E.D.1999).

Here, Claimant failed to comply with Rule 84.04 in several respects. First, Claimant’s statement of facts does not contain a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Rather, Claimant’s statement is argumentative, incomplete, and references matters outside the record on appeal. See Johnson, 300 S.W.3d at 581-82 (dismissing appeal when, inter alia, statement of facts violated Rule 84.04(c) in that it was argumentative, incomplete, and referenced matters outside record); Perkel v. Stringfellow, 19 S.W.3d 141, 146 (Mo.App. S.D.2000) (statement of facts should afford appellate court “accurate, complete and unbiased understanding of the facts of the case”). Further, Claimant fails to support any of her factual statements with citations to the legal file or transcript. Rule 84.04(i); Lucker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008) (record citations in appellate briefs are “mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record”).

Second, Claimant’s two points relied on do not comply with Rule 84.04(d)(2), which requires each point to identify the administrative ruling or action challenged, to provide a concise statement of the legal reasons for the claim on appeal, and explain why the legal reasons support the claim of error. Cf. Schaefer, 250 S.W.3d at 384. Claimant’s two points on appeal fail to identify any administrative ruling or action, and fail to provide any legal reason for the claim. Claimant asserts merely that she “did [her] part, and that [she] should get unemployment.” Because her points do not comply with Rule 84.04(d), there is no error preserved for review. See Washington v. Blackburn, 286 S.W.3d 818, 821 (Mo.App. E.D.2009); see also Johnson, 300 S.W.3d at 581-82 (points relied on did not comply with Rule 84.04(d)(2)).

Last, Claimant’s brief violates Rule 84.04(e), because it fails to set forth the applicable standard of review for agency decisions, presents no legal arguments for reversal, and contains no citations to legal authorities. Claimant does not develop her claim for error “by showing the interaction between the relevant principles of law and the facts of the particular case.” Johnson, 300 S.W.3d at 582 (dismissing appeal for failure to comply with Rule 84.04(e)’s requirements). Significantly, Claimant does not provide a single reference to any legal authority. If a party does not support her arguments with relevant authority or present arguments beyond conclusory statements, the point is deemed abandoned. Id.

Conclusion

Claimant’s brief so substantially fails to comply with the briefing requirements of Rule 84.04 that it preserves nothing for appellate review. The appeal is dismissed.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J„ concur.

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


author: CYNTHIA L. MARTIN, Judge.

text:
    MISSOURI REAL ESTATE COMMISSION, Appellant, v. KENNETH G. RAYFORD, Respondent.
    No. WD 70723.
    Missouri Court of Appeals, Western District.
    April 13, 2010.

      Craig H. Jacobs, Jefferson City, MO, for appellant.
    Mark S. Bryant, Kansas City, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, JAMES M. SMART, JR., Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Missouri Real Estate Commission (MREC) appeals from the Missouri Administrative Hearing Commission’s (AHC) decision holding that Kenneth Rayford was entitled to retain his real estate salesperson’s license. MREC contends that section 339.100.5, which became effective in 2006, mandates the revocation of Rayford’s license, which he secured in 2003 or 2004, because of a 1970 conviction for second degree murder. We affirm.

Factual and Procedural History

On April 24, 1970, nineteen-year-old Rayford pleaded nolo contendere to second degree murder and was sentenced to thirty years in prison. While in prison, Ray-ford earned degrees in psychology and sociology. In 1988, Rayford was released from prison. In 1993, Rayford was released from parole. Rayford enrolled in real estate school and subsequently applied for a real estate salesperson’s license. In his application, Rayford disclosed his prior conviction for second degree murder. In approximately 2003 or 2004, after a thorough investigation by MREC, Rayford was issued his real estate license and has never been subject to discipline.

On August 28, 2006, section 339.100.5 took effect. It provides that “a broker or salesperson’s license shall be revoked, or in the case of an applicant, shall not be issued, if the licensee or applicant has pleaded guilty to, entered a plea of nolo contendere to, or been found guilty of ... [a]ny dangerous felony as defined under section 556.061, RSMo.” By its terms, section 339.100.5 applies to two categories of individuals — brokers and salespersons who are already licensed, and applicants seeking licensure.

On May 4, 2007, MREC revoked Ray-ford’s license in reliance on section 339.100.5. Rayford appealed the revocation to the AHC. On November 19, 2007, the AHC determined that section 339.100.5 did not require revocation of Rayford’s license. Specifically, the AHC construed section 339.100.5 to exclude from its coverage “a licensee who held a license on August 28, 2006, but not when the criminal proceeding occurred.” Because Rayford fell within this narrow exception, the AHC concluded his license was not subject to mandatory revocation.

On December 19, 2007, MREC appealed the AHC’s decision to the trial court. On January 15, 2009, the trial court affirmed the decision of the AHC. MREC appeals.

Standard of Review

Our review of an administrative agency decision interpreting a statute is de novo. Morton v. Brenner, 842 S.W.2d 538, 540 (Mo. banc 1992). “We review the decision of the Commission, not the judgment of the trial court.” State Bd. of Registration for Healing Arts v. Boston, 72 S.W.3d 260, 263 (Mo.App. W.D.2002).

Analysis

In its sole point on appeal, MREC contends that the AHC erred in holding that section 339.100.5 does not mandate the revocation of Rayford’s license. MREC argues that the AHC improperly interpreted section 339.100.5 to exclude persons like Rayford because section 339.100.5 as written reflects a plain and clear legislative intent to subject all licensees to its terms, including licensees who pleaded to, or were found guilty of, a qualifying criminal offense prior to the statute’s effective date, regardless whether licensed at the time. MREC also contends that retroactive application of section 339.100.5 does not violate the prohibition against retrospective laws set forth in article I, section 13 of the Missouri Constitution. The AHC did not discuss this issue, as the AHC is not statutorily authorized to evaluate constitutional principles or to declare a statute invalid. State Tax Comm’n v. Admin. Hearing Comm’n, 641 S.W.2d 69, 75 (Mo. banc 1982). MREC concedes that section 339.100.5 has been applied retroactively to Rayford. Thus, we will begin our analysis with the issue the AHC could not reach— the constitutionality of this retroactive application.

Retroactive Application of Section 339.100.5

Article I, section 13 of the Missouri Constitution provides “[t]hat no ex post facto law, nor law ... retrospective in its operation ... can be enacted. This area of the law makes use of the terms ex post facto, retrospective and retroactive.” State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App. W.D.1987). There is a distinct and legally material difference in the meaning of these terms, though the terms are often misused by both bench and bar. Id. “The term ex post facto is a term applicable to criminal legislation only ... while the term retrospective refers exclusively to laws related to civil rights and remedies.” Id. Though the terms retroactive and retrospective are frequently interchanged, in fact they are not synonymous. “A law is ‘retroactive’ in its operation when it looks or acts backward from its effective date and is retrospective ‘if it has the same effect as to past transactions or considerations as to future ones....”’ Id. at 459-60, (quoting State ex rel. Meyer v. Cobb, 467 S.W.2d 854, 856 (Mo.1971)). In other words, “ ‘[t]he constitutional inhibition against laws retrospective in operation ... does not mean that no statute relating to past transactions can be constitutionally passed, but rather, that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested.’” Id. at 460 (quoting Fisher v. Reorganized Sch. Dist. No. R-V of Grundy County, 567 S.W.2d 647, 649 (Mo. banc 1978)). Our Missouri Supreme Court has defined “retrospective law” as: “[a] law is retrospective in operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties, or disabilities with respect to past transactions.” Hess v. Chase Manhattan Bank, 220 S.W.3d 758, 769 (Mo. banc 2007) (citing Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 388, 340 (Mo. banc 1993)) (emphasis added). Conversely, “when a law makes only a procedural change, it is not retrospective and hence can be applied retroactively.” Thomaston, 726 S.W.2d at 460; See Scheidegger v. Greene, 451 S.W.2d 135, 137 (Mo. banc 1970) (stating article I, section 13 does not apply to statutes dealing only with procedural or remedial matters).

Thus, to determine whether retroactive application of section 339.100.5 to persons like Rayford is constitutionally permissible, we must determine if section 399.100.5 is retrospective. In other words, we must determine whether section 339.100.5 either takes away or impairs a vested or substantial right or imposes a new obligation, duty, or disability with respect to a past transaction. F.R. v. St. Charles County Sheriff's Dep’t, 301 S.W.3d 56, 61-62 (Mo. banc 2010) (stating references to vested rights or new obligation, duty or disability are disjunctive options, and finding of retrospective application can be based on either option).

(i) Vested or Substantial Right

MREC contends that Rayford has no vested or substantial right to hold a real estate salesperson’s license. We agree.

In Fisher, our Supreme Court noted that “a vested right ‘... must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another.’ ” 567 S.W.2d at 649 (quoting People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 321 (1939)). A vested right has been described as a right with an “ ‘independent existence, ‘in the sense that once it vests it is no longer dependent for its assertion upon the common law or statute under which it may have been acquired.” Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 15 (Colo.1993) (citation omitted). “Vested right” is defined as a “right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy.” Black’s Law Dictionary 1402 (5th ed.1979).

Applying these principles, we cannot conclude that a professional license of any kind represents a vested right. Though we have been unable to locate a Missouri case with facts similar to those before us involving revocation of a professional license based solely on an antecedent conviction, it has been stated in other Missouri decisions that a professional license is not a vested right, but rather a privilege. Boston, 72 S.W.3d at 266 (professional license is a privilege granted by the state); State ex rel. Schneider’s Credit Jewelers v. Brackman, 260 S.W.2d 800, 814 (Mo.App.1953) (professional license in the healing arts is a privilege), preliminary unit made absolute, 272 S.W.2d 289 (Mo. banc 1954). Other Missouri decisions have held there is no vested right to practice a particular profession or to hold a particular professional license. State Bd. of Registration for the Healing Arts v. Giffen, 651 S.W.2d 475, 479 (Mo. banc 1983); State v. Davis, 194 Mo. 485, 92 S.W. 484, 489 (1906) (“[T]here can be no such thing as a vested right in the practice of medicine.”).

Other jurisdictions have similarly concluded that professional licenses and licenses to operate a business do not create a vested right. See Dep’t of Health & Mental Hygiene v. VNA Hospice of Md., 176 Md.App. 475, 933 A.2d 512, 521-22 (2007) (vacated on other grounds by 406 Md. 584, 961 A.2d 557 (Md.Ct.Spec.App.2008)) (citations summarizing holdings from numerous other jurisdictions omitted). “It has been said that a professional license is not ‘an absolute vested right,’ but is at most ‘only a conditional right which is subordinate to the police power of the State to protect and preserve the public health’ and welfare.” Landsman v. Md. Home Improvement Comm’n, 154 Md.App. 241, 839 A.2d 743, 753 (Md.Ct.Spec.App.2003) (quoting Dr. K. v. State Bd. of Physician Quality Assurance, 632 A.2d 453 (Md.Ct.Spec.App.1993)); Dep’t of Health and Mental Hygiene, 933 A.2d at 523 (“We therefore conclude that, like other professional licenses, a license to deliver home-based hospice is not an absolute vested right_”). Because a license is only a “grant of permission to act,” suspension or revocation of a license “does not interfere with a substantive or vested right.” Landsman, 839 A.2d at 753. See Lambert v. Yellowley, 272 U.S. 581, 596, 47 S.Ct. 210, 71 L.Ed. 422 (1926) (“[Tjhere is no right to practice medicine which is not subordinate to the police power of the states”).

In short, no one who possesses a license has the right or ability to presume the license is “vested” or that the license has an “independent existence.” Rather, the license remains subject to the laws and regulations which authorized its issuance in the first place, which is the antithesis of a vested right. Those laws and regulations may impose criteria for eligibility, both initially or following licensure, may require annual or other renewals, and may impose conditions on a license’s continued viability tied to standards of conduct. A license provides one the authority to provide or perform certain services, or to engage in a particular business or avocation. Obtaining a license may well create a sense of dependence, even reliance, on the license’s continued viability, so much so that its revocation, suspension, or lack of renewal may result in severe hardship to one whose livelihood has come to depend on the license. However, the importance of the license to the licensee has no bearing on whether the license is a vested or substantial right for purposes of article I, section 13 of the Missouri Constitution. The definition of “license” belies a contrary conclusion. “License” is defined as “[a] revocable permission to commit some act that would otherwise be unlawful.” Black’s Law Dictionary 931 (7th ed.1999). A revocable grant of permission is not a vested right.

We are mindful that once a license has been obtained, the licensee will generally acquire a property right sufficient to require substantive and procedural due process before the license can be impaired, suspended, or revoked. Colyer v. State Bd. of Registration for Healing Arts, 257 S.W.3d 139, 144 (Mo.App. W.D.2008); Larocca v. State Bd. of Registration for Healing Arts, 897 S.W.2d 37, 42 (Mo.App. E.D.1995). For example, the federal district court has concluded that “[ujnder Missouri law, physicians have a property interest in their licenses and they are entitled to procedural due process before their licenses are revoked.” Crum v. Mo. Dir. of Revenue, 455 F.Supp.2d 978, 986 (W.D.Mo.2006) (citing Larocca, 897 S.W.2d at 42). “Before depriving a citizen of a property right, the property owner must be given notice and an appropriate opportunity to be heard.” Id. at 987. However, the mere fact that a license carries with it rights sufficient to require due process before the license can be impaired or revoked does not mean the license is a “vested right” entitled to protection from the application of retrospective laws. In Crum, after concluding that the holder of a professional license is entitled to procedural and substantive due process, the federal district court held that there is no vested right to hold a professional license and that a statute requiring revocation of a license based on noncompliance with tax laws was not unconstitutionally retrospective. 455 F.Supp.2d at 997-98. See Dep’t of Health & Mental Hygiene, 933 A.2d at 523 (“That VNA’s license is not a vested property right does not mean, of course, that it is not subject to procedural due process before it can be revoked, suspended, or otherwise altered.”).

We conclude, therefore, that section 339.100.5, does not satisfy the first disjunctive definition of a retrospective law, as a license, including a professional license, is not a vested or substantial right as envisioned by article I, section 13 of the Missouri Constitution. We must next evaluate whether section 339.100.5 impermissibly imposes a new obligation, duty, or disability with respect to a past transaction-the second disjunctive definition of a retrospective law.

(ii) New Obligation, Duty or Disability with Respect to Past Transactions

Beyond repeating the oft cited definition of “retrospective,” very few Missouri cases have analyzed the second of the two articulated means by which a law can be deemed retrospective — whether the law imposes new obligations, duties, or disabilities with respect to past transactions. It could be argued that any law that has retroactive application in some manner imposes a new duty or obligation or a new disability with respect to a past transaction. However, it is settled that the prohibition against retrospective laws deriving from this prong of the definition “ ‘does not mean that no statute relating to past transactions can be constitutionally passed, but rather that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested.’” Casey’s Mktg. Co. v. Land Clearance for Redevelopment Auth. of Independence, Mo., 101 S.W.3d 23, 28-29 (Mo.App. W.D.2003) (citations omitted). Stated practically, “a statute is not retrospective because it merely relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation.” State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 900 (1950). “A statute which does not ... impose a new or greater duty is not unconstitutionally retrospective merely because it relates to prior facts or transactions.” Boston, 72 S.W.3d at 265-66 (citing Hoskins v. Box, 54 S.W.3d 736, 739 (Mo.App. W.D.2001)).

Our Supreme Court has carefully analyzed when a retroactive law should be deemed retrospective because it imposes a new duty, obligation, or disability on a past transaction. In Doe v. Phillips, 194 S.W.3d 833, 849-50 (Mo. banc 2006), the Supreme Court evaluated a challenge to “Megan’s Law,” and in particular a contention that article I, section 13’s proscription against retrospective laws “precludes application of Megan’s Law to those who pled guilty or were found guilty prior to the act’s ... effective date.” Id. at 850. The Court concluded that “the bar on laws that operate retrospectively is violated by the imposition of an affirmative obligation ... to register upon release and then regularly thereafter. The obligation to register by its nature imposes a new duty or obligation.” Id. at 852.

In so concluding, the Court carefully distinguished other scenarios. The Court noted that in Jerry-Russell Bliss v. Hazardous Waste, 702 S.W.2d 77 (Mo. banc 1985), “an act prohibiting issuance of a hazardous waste management license to a habitual violators of past hazardous waste laws” was not retrospective as “the act only made past practices of the company ‘a consideration for the granting or denial of a hazardous waste transporter’s license.’ ” Phillips, 194 S.W.3d at 850-51 (quoting Bliss, 702 S.W.2d at 81). The Court also distinguished its conclusion in La-Z-Boy Chair Co. v. Director of Economic Development, 983 S.W.2d 523 (Mo. banc 1999), where it “rejected a taxpayer’s argument that it had a vested right to assume that because it had a tax exemption for its new plant when built, that exemption would continue” as “no one has a vested right that the law will remain unchanged.” Phillips, 194 S.W.3d at 851 (citing La-Z-Boy, 983 S.W.2d at 525). The Court also discussed its holding in Corvera Abatement Technologies, Inc. v. Air Conservation Commission, 973 S.W.2d 851 (Mo. banc 1998), where an asbestos abatement project regulation which had been amended was being applied only to acts “‘that occurred after the amendment of the statute and the publication of the corrected fiscal note,’ ” and as a result, the law was not retrospective, even though it permitted consideration of antecedent actions in making future decisions. Phillips, 194 S.W.3d at 851 (quoting Corvera, 973 S.W.2d at 856). Finally, the Court discussed its holding in Doe v. Roman Catholic Diocese, 862 S.W.2d 338 (Mo. banc 1993), where it held “ ‘once the original statute of limitations expires and bars the plaintiffs action, the defendant has acquired a vested right to be free from suit, a right that is substantive in nature, and therefore, article I, section 13, prohibits the legislative revival of the cause of action.’” Phillips, 194 S.W.3d at 851 (quoting Doe v. Roman Catholic Diocese, 862 S.W.2d at 341).

Consistent with, and based on the combination of, these principles, the Supreme Court concluded that the Does could not analogize having been released from parole to the expiration of a statute of limitations, as to claim a “vested right” that no further consequence could be imposed on them by virtue of their prior convictions. Phillips, 194 S.W.3d at 851-52. The Court also rejected the Does’ complaints that “publication of true information about the Does affects a past transaction to then-substantial detriment by imposing a new obligation, adding a new duty or attaching a new disability in respect to transactions or consideration already past.” Id. at 852; see Bliss, 702 S.W.2d at 82. “The publication of this information merely looks back at antecedent actions, as did the regulations in Corvera.” Phillips, 194 S.W.3d at 852. However, the Does’ complaint that Megan’s law impermissibly required them to register was afforded weight:

[T]he Does ... are complaining about application of the registration requirement to them, based solely on their pre-act criminal conduct.... [T]he application of that requirement truly is retrospective in its operation. It looks solely at their past conduct and uses that conduct not merely as a basis for future decision-making by the state, in regard to things such as the issuance of a license, or as a bar to certain future conduct by the Does, such as voting. Rather, it specifically requires the Does to fulfill a new obligation and imposes a new duty to register and to maintain and update the registration regularly based solely on their offenses prior to its enactment. This violates ... our constitutional ban on laws retrospective in operation.

Id. (emphasis added).

Most recently, in F.R., the Supreme Court again struck as retrospective two laws that imposed “new obligations or duties ... giving new legal effect” to antecedent convictions. 301 S.W.3d at 64. In the case of F.R., the statute in question divested a prior offender of an ability to live within 1,000 feet of a school or daycare and imposed a duty to insure any future residence is greater than 1,000 feet from a school or day care. Id. at 63. In the case of Raynor, the statute in question required a prior offender to meet four obligations on Halloween night. Id. at 60 n. 7. In each case, the new duty or disability subjected the prior offender to a potential penalty-in these cases, potential criminal liability. Id. at 61. Appreciating the fine “distinction between laws such as those in this case that look to past conduct, and regulatory laws that do not impose new duties or obligations on settled transactions,” the court discussed State ex rel. Koster v. Olive, 282 S.W.3d 842 (Mo. banc 2009). F.R., 301 S.W.3d at 64. In Olive, a statute requiring a landowner to obtain a registration permit for a previously constructed dam was deemed not retrospective. 282 S.W.3d at 848. “‘The dam’s present use and its present ability to hold back substantial amounts of water is the issue. The duty imposed to obtain a registration permit is' based on the current existence, operation and safety of the dam and is distinguishable from the application of the registration requirements in Phillips to a single past criminal act.’ ” F.R., 301 S.W.3d at 64 (quoting Olive, 282 S.W.3d at 848).

In light of this instructive guidance from our Supreme Court, we conclude that section 339.100.5, which retroactively converts an antecedent criminal conviction into a per se basis for ineligibility to hold a real estate license, would be unconstitutionally retrospective if applied to mandate the revocation of a real estate license in force on the statute’s effective date based solely on the antecedent criminal proceeding. Section 339.100.5 looks solely at Rayford’s past plea of nolo con-tendere and uses that conduct not as a basis for future decision-making by the state but to impose a new duty on Ray-ford to relinquish an existing license and/or a new disability on Rayford of per se ineligibility to continue to hold an existing license. As in Phillips and F.R., Ray-ford is a convicted felon who has served his time and cannot be presumed to be a continuing felon or a present or future danger. Thus, section 339.100.5, which imposes a new duty, obligation, or disability on Rayford based solely on his single past criminal act is retrospective.

In reaching our conclusion we are mindful of, and emphasize, that the aforementioned litany of cases from the Supreme Court would not prohibit: (1) the application of section 339.100.5 to bar an applicant with an antecedent qualifying criminal offense from being denied a real estate license, as in such a case the past conduct is being looked at “as a basis for future decision-making by the state, in regard to things such as the issuance of a license;” Phillips, 194 S.W.3d at 852; (2) the application of section 339.100.5 to permit consideration of an antecedent qualifying criminal offense along with other conduct occurring subsequent to the statute’s effective date in evaluating appropriate discipline, including suspension or revocation of a license; See Barbieri v. Morris, 315 S.W.2d 711, 714-15 (Mo. banc 1958) (amended statute which permitted antecedent traffic violations to be considered along with subsequent traffic violations to classify a driver as an habitual offender warranting revocation of a driver’s license did not violate prohibition against retrospective laws because antecedent conduct was not sole basis for loss of license); or (3) the application of section 339.100.5 to license renewals, if the license expires following a defined period of time with no reasonable assurance the license will be summarily renewed subject only to timely re-application and/or payment of a required fee, as consideration of an antecedent criminal proceeding would then be in connection with a future licensing decision, consistent with Bliss. See Phillips, 194 S.W.3d at 850-51. In short, and as a result of our analysis, section 339.100.5 should be read: (i) to apply to all applicants for a real estate license including those with antecedent qualifying criminal offenses predating section 339.100.5’s effective date, (ii) to apply to any licensee who pleads guilty to, or is found guilty of, a qualifying criminal offense subsequent to the effective date of section 339.100.5, (iii) but not to apply to any license in effect when section 339.100.5 was enacted if revocation of the license is sought based solely on the antecedent qualifying criminal offense.

MREC complains that such an interpretation will result in applicants and licensees, the two classes of persons covered by section 339.100.5, being treated differently. MREC notes that a person who applies for a real estate license after the effective date of section 339.100.5 will be ineligible to obtain a license if the applicant has pleaded guilty to, or been found guilty of, one of the qualifying criminal offenses at any time prior to the application, even if the guilty determination predates the effective date of the statute. That is true. It is also constitutionally permissible, as discussed in Doe v. Phillips, 194 S.W.3d at 851-52. Consideration of an antecedent event in connection with a future desire to secure licensure, even where the antecedent event would not previously have been a per se basis for ineligibility, is not a retrospective application of section 339.100.5. Moreover, an applicant has no entitlement to believe that the law with respect to eligibility requirements for licensure will always remain the same. Thus, though section 339.100.5 does, in fact, change the materiality of a past transaction with respect to an applicant, it does so only with respect to an application that post dates the effective date of section 339.100.5. In this regard, the application of section 339.100.5 is prospective, not retrospective. See Boston, 72 S.W.3d at 265-66 (applicant for a professional license could not complain that a statute imposing a limit on the number of times a licensing exam could be unsuccessfully taken — a limit already passed by the applicant — was retrospective).

Our decision today will apply equally to all who held real estate licenses on the effective date of section 339.100.5 and will prevent mandatory revocation of such licenses should the licensee have pleaded to, or been found guilty of, a qualifying criminal offense prior to the statute’s effective date, regardless whether the offense was committed before or after the license was obtained. In so concluding, we recognize that the AHC has, since its decision in this case, construed section 339.100.5 to require mandatory revocation of a license in place on the statute’s effective date where qualifying criminal proceedings occurred before section 339.100.5’s effective date but after the license was procured. Engelmeyer v. Mo. Real Estate Comm’n, No. 07-1883 RE, 2008 WL 4182663 (Admin. Hearing Comm’n June 27, 2008), http://168.166.15. 111/Clients/MOAHC/Publie/Case Details.aspx? & EntityID=10019036; Woodard v. Mo. Real Estate Comm’n, No. 07-0656 RE, 2008 WL 2309542 (Admin. Hearing Comm’n Apr. 21, 2008), http://168. 166.15.111/Clients/MOAHC/ Public/Case— Details.aspx? & EntityID=10016009. In Woodard, the AHC distinguished Rayford, noting Rayford was neither an applicant nor licensee when he pleaded nolo conten-dere to second degree murder, where Woodard was already licensed when he was determined guilty of his qualifying criminal offense. Woodard, 2008 WL 2309542 at 7-8. However, the AHC expressly noted it was drawing a distinction between section 339.100.5’s application to Rayford and Woodard based solely on the language of the statute, and not on any constitutional analysis regarding the propriety of retrospective operation of section 339.100.5, a matter about which the AHC has no authority to opine. Woodard, 2008 WL 2309542 at 7-8. This same careful caveat was expressed in Engelmeyer, 2008 WL 4182663 at 4. We respect the AHC’s recognition of its constraint to evaluate constitutional principles and/or to declare a statute invalid. State Tax Comm’n, 641 S.W.2d at 75. However, we conclude there is no distinction between a licensee whose criminal proceedings occurred before or after licensure for purposes of determining whether section 339.100.5 has been retrospectively applied. The only material inquiry is whether a person held a real estate license on section 339.100.5’s effective date. If so, section 339.100.5 cannot be applied to require mandatory revocation of the license based solely on a criminal proceeding predating the statute’s effective date, whether the person was licensed at the time of the criminal proceeding or not.

The Relevance of Legislative Intent

MREC complains that interpreting section 339.100.5 as we do today is inconsistent with the legislature’s clear intent to apply section 339.100.5 retroactively, as reflected by the phrase “has pleaded guilty to, entered a plea of nolo conten-dere to, or been found guilty of” employed in the statute. MREC cites Barbi-eri and Boston, for this proposition. We concede that in both cases the legislature’s use of similar past participle phrases mandated a conclusion that the legislature clearly intended the involved statute to have retroactive effect. However, Boston and Barbieri did not involve vested or substantial rights, or the imposition of new duties, obligations or disabilities on past transactions in a manner sufficient to constitute a retrospective law. MREC’s mistake in relying on Boston and Barbieri is in concluding that either case stands for the proposition that legislative intent can be independently dispositive of a statute’s permissible retroactive application, without regard to compliance with article I, section 13 of the Missouri Constitution.

MREC’s error is not without colorable support. We note there are oft repeated passages in many of our State’s reported decisions which have the effect of confusing what is actually a very simple concept. Some decisions have concluded that “prospective application of a statute is presumed unless the legislature demonstrates a clear intent to apply the amended statute retroactively, or if the statute is procedural or remedial in nature.” Ball-Sawyers v. Blue Springs Sch. Dist., 286 S.W.3d 247, 256 (Mo.App. W.D.2009) (citing Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo.App. E.D.2007)) (emphasis added). This “standard” suggests there are two independent but equal means by which a statute can be deemed permissibly retroactive, one of which is based purely on legislative intent. Some decisions conclude that “[a] statutory provision that is remedial or procedural operates retrospectively unless the legislature expressly states otherwise.” Wilkes v. Mo. Highway & Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988) (emphasis added). This “standard” suggests that a procedural law will be automatically applied retroactively and that legislative intent will be a pertinent inquiry only to determine whether the statute should be applied prospectively. Some decisions have stated that “Article I, Section 13 bars retrospective application of a statute except where: (1) legislative intent is clearly manifested that the statute is to be applied retrospectively; and (2) the statute is procedural only and does not affect any substantive or vested right.” Boston, 72 S.W.3d at 263 (emphasis added). This “standard” suggests that both an express legislative intent to retroactively apply a statute and a constitutionally permissible basis to do so must be found. Even our Supreme Court has unwittingly added to the confusion. It has stated that “[s]tatutes are generally presumed to operate prospectively, ‘unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication.’” Dep’t of Soc. Servs. v. Villa Capri Homes, Inc., 684 S.W.2d 327, 332 (Mo. banc 1985) (quoting Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982) (appeal dismissed 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983))). This passage, standing alone, suggests that legislative intent forms an independent basis to determine permissible retroactive application of a statute and has, unfortunately, been repeated in subsequent cases, including Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 872 (Mo. banc 1993), without noting that the cited passage from Villa Capri continued with the critically important proviso that “[i]f the presumption normally favoring prospective operation is overcome [as a result of evaluation of legislative intent], the inquiry focuses on whether the statute falls within the proscription against retrospective laws.” Villa Capri, 684 S.W.2d at 332 (citing Lincoln Credit Co., 636 S.W.2d at 34-35).

We conclude that reported decisions in this State, which may be read to suggest that legislative intent to apply a statute retroactively constitutes an independent exception to the presumption of prospective application of statutes, misspeak. There is no independent exception born of legislative intent to the proscription against retrospective laws found in our Missouri Constitution. Legislative intent to apply a law retroactively, no matter how clear, “cannot supercede [sic] a constitutional provision.” Doe, 862 S.W.2d at 341; see also Villa Capri, 684 S.W.2d at 332 n. 5 (“The Department contends that if there is a clear intent that a statute apply retroactively then there is an exception to the bar against retrospective laws. Such is not the case; the legislative intent is pertinent only to the construction of the statute and whether the presumption against retroactivity should not apply.”); Phillips, 194 S.W.3d at 851 (“The clear legislative intent to apply the law retrospectively could not supersede the specific prohibition on retrospective laws.”). We conclude, therefore, that MREC’s contention that section 339.100.5 must be applied retroactively because the legislature clearly intended such an application, notwithstanding that the statute is retrospective in its effect in violation of article I, section 13 of the Missouri Constitution, is without merit.

Conclusion

We conclude that section 339.100.5 cannot be applied retroactively to mandatorily revoke a real estate license held at the time the statute became effective based on a plea or finding of guilt predating the effective date of the statute as such an application would violate the ban against retrospective laws set forth in article I section 13 of the Missouri Constitution. We therefore affirm the trial court’s judgment affirming the AHC’s decision.

All concur.

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

      . Murder in the second degree is listed as a dangerous felony in the current version of section 556.061. However, section 556.061 did not exist at the time of Rayford's offense. The AHC nonetheless found that Rayford’s conviction for murder in the second degree was a qualifying offense under section 339.100.5. This finding is not contested on appeal.

      . Section 339.100.5's effective date.

        . The Supreme Court’s definition of retrospective law is nearly identical to the definition of retrospective law found in Black’s Law Dictionary 1317-18 (6th ed.1990).

      . Consolidated with State v. Raynor.

      . On appeal, the Eighth Circuit concluded the subject statute, which implicated a medical license for non-compliance with certain tax laws, was prospective and not retroactive in its application, rendering unnecessary any discussion of retrospective application. Crum v. Vincent, 493 F.3d 988, 997 (8th Cir.2007). Though unfiled tax returns predating the subject statute were at issue, the licensed professional remained subject to unresolved liability for the non-filing and non-payment of taxes relating to those returns following the effective date of the subject statute, and in effect was in continuing violation of the tax laws. Id.

      . Because this opinion cites to two cases with the first name "Doe,” we will short cite this case by the second name throughout the rest of the opinion.

      . Though Megan’s Law imposes registration requirements based on criminal conduct, it is intended to be regulatory in nature rather than punitive. In re R.W. v. Sanders, 168 S.W.3d 65, 70 (Mo. banc 2005). As such, the language in article I, section 13 relating to the prohibition against ex post facto laws has no application to Megan's Law. Id. Instead, the definition of "retrospective” applicable to civil rights and remedies is applicable. Id. at 69.

      . A statute is presumed valid and we “ ‘resolve all doubt in favor of the act’s validity' and ‘make every reasonable intendment to sustain the constitutionality of the statute.’ ” Cannon v. Cannon, 280 S.W.3d 79, 83 (Mo. banc 2009) (citation omitted). As directed in Phillips, we construe section 339.100.5 within the parameters of the proscription against retrospective application of a statute. 194 S.W.3d at 852.

      . Because we have concluded that section 339.100.5 as applied to Rayford is impermis-sibly retrospective, we need not reach whether the AHC properly construed section 339.100.5 to exclude Rayford from its coverage because Rayford was not a licensee at the time he plead nolo contendere to second degree murder, though we believe the AHC’s construction to be strained, and thus suspect, in light of Boston and Barbieri, herein discussed.

      . In Barbieri, a statutory amendment defining habitual violator as anyone who "has been” adjudged guilty of a moving violation at least four times within two years, reflected, by use of the phrase "has been” a clear intent to permit reference back to moving violations which occurred before the statute's effective date. 315 S.W.2d at 713-14. In Boston, the legislature’s use of the past participle "has failed” in an amended statute, which limited the number of times an applicant could unsuccessfully take the physical therapist licensing exam, was determined to reflect a clear intent to bar an applicant though her three failed attempts at the exam predated the statute’s effective date. 72 S.W.3d at 265.

      .The right to drive an automobile is not a vested right. Barbieri, 315 S.W.2d at 715. There is no substantive right conferred by licensing statutes on applicants seeking licen-sure. Boston, 72 S.W.3d at 266.

      . This represents an example of the confusion that results from misuse and improper interchanging of the terms "retroactive” and “retrospective.”

      . See note 12.

      . Bird v. Mo. Bd. of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520 (Mo. banc 2008) ("While the decision reviewed on appeal is that of the AHC and not the circuit court, an appellate court reverses, affirms or otherwise acts upon the judgment of the trial court. Rule 84.14.”)


author: KAREN KING MITCHELL, Judge.

text:
    Derrick JONES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70785.
    Missouri Court of Appeals, Western District.
    April 13, 2010.
    Derrick Jones, Jefferson City, MO, Appellant, pro se.
    Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

On December 23, 2005, the Appellant Derrick Jones filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15 in the Circuit Court of Jackson County (“circuit court”). On September 26, 2007, Jones filed a Motion for Leave of Court to File Out of Time 29.15 Post-Conviction ■ Relief Motion for Cause (“Motion for Leave”). On September 9, 2008, the circuit court took up and denied the Motion for Leave.

Although the circuit court delineated its September 9, 2008 order a “Judgment,” upon review of the record, it appears that the circuit court has not entered a final order or a final judgment on Jones’s December 23, 2005 Rule 29.15 motion. Absent an appealable final judgment or order, we lack appellate jurisdiction. Rule 81.04(a) (“No ... appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.”); Rule 74.01; State v. Saffaf, 81 S.W.3d 526, 527 (Mo. banc 2002).

Accordingly, we dismiss this appeal for lack of jurisdiction.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . This issue remains jurisdictional, post Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). While the Missouri Constitution grants the courts jurisdiction over civil actions (including post-conviction cases), it clearly contemplates both original and appellate jurisdiction, see Missouri Constitution, article V, sections 3 & 14, and it gives our Supreme Court power to "establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law." Mo. Const, art. V, § 5. Supreme Court rules delineating the procedures for when and how trial court jurisdiction ends and appellate jurisdiction begins do not violate the Constitution or run afoul of the Supreme Court’s holding in Webb. City of Greenwood v. Martin Marietta Materials, Inc., — S.W.3d -, -, 2010 WL 431369, at *7 (Mo.App. W.D.2010).


author: KENNETH M. ROMINES, Chief Judge.

text:
    Carolyn LEE, Claimant/Appellant, v. EAN SERVICES LLC, and Division of Employment Security, Respondents.
    No. ED 94336.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 13, 2010.
    Carolyn Lee, St. Louis, MO, pro se.
    Ean Services LLC, dba Enterprise Rent-A-Car, St. Louis, MO, pro se.
    Michael Pritchett, (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Carolyn Lee (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. Claimant then appealed to the Appeals Tribunal of the Division, which affirmed the deputy’s decision. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, requires that a notice of appeal to this Court from the Commission’s decision be filed within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. “Section 288.200 RSMo does not provide for late filing and does not recognize any exceptions for filing out of time.” McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

Here, the Commission mailed its decision to Claimant on December 23, 2009. Therefore, the notice of appeal to this Court was due on or before January 22, 2010. Sections 288.200.2, 288.210. Claimant mailed her notice of appeal to the Commission. Under section 288.240, RSMo 2000, “[a]ny notice of appeal ... to be filed with the division or the commission shall, when mailed to and received by the division or the commission, be deemed to be filed as of the date endorsed by the United States post office on the envelope .... ” Here the date endorsed by the United States post office was January 27, 2010. As a result, Claimant’s notice of appeal is untimely.

An untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal and we must dismiss it. Wancel v. DT Management, LLC, 299 S.W.3d 49, 50 (Mo.App. E.D.2009). The Division’s motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

NANNETTE A. BAKER, J., and ROY L. RICHTER, J., concur.


author: ROBERT S. BARNEY, Judge.

text:
    William Dixson STIREWALT, Appellant, v. Cheryl Ann STIREWALT, Respondent.
    No. SD 29974.
    Missouri Court of Appeals, Southern District, Division One.
    April 13, 2010.

      John 0. Russo, Mountain Home, AR, for Appellant.
    ' Respondent did not file a brief.
   ROBERT S. BARNEY, Judge.

Appellant William Dixson Stirewalt (“Husband”) appeals the trial court’s “Third Amended Judgment, Order and Decree of Dissolution of Marriage Nunc Pro Tunc” (“the Judgment”), which dissolved his marriage to Respondent Cheryl Ann Stirewalt (“Wife”). In two points of trial court error, Husband challenges the trial court’s award of an equalization payment by him to Wife and the trial court’s grant of “monthly, modifiable, and unlimited ...” maintenance to Wife in the amount of $1,050.00 a month.

The record reveals the parties were married on September 28, 1991, and were separated in February of 2008. There were no children born of the marriage. Throughout the marriage, Husband was the owner of Dickey’s Culverts, a distributorship for a culvert manufacturer, which he has owned for over twenty years. To supplement his income, in 2005 Husband began working as a part-time boilermaker for an out-of-town company and he averaged nine to eleven weeks of such work per year. At the time of the parties’ marriage in 1991, Wife was employed with Burlington Northern Railroad and in 1992 she was injured in a work related accident. Thereafter, due to the injuries suffered in the accident, she received a personal injury settlement of approximately $380,000.00. In 1998, Wife began drawing social security disability income and she now draws approximately $789.00 in disability payments per month.

On May 9, 2008, Husband filed his “Petition for Dissolution of Marriage,” and Wife filed her answer on June 16, 2008. A trial was held on December 10, 2008. On September 18, 2009, the trial court entered the Judgment in this matter. At the conclusion of all the evidence, the trial court, inter alia, ruled that the parties’ marriage was dissolved; divided the parties’ non-marital and marital property as well as debts; adjudged that Wife should receive a $7,103.56 “equalization” payment to make up for the difference in the assets and debts awarded to each party; and that Husband was to pay to Wife $1,050.00 per month as “modifiable” maintenance for an “unlimited” amount of time. This appeal by Husband followed.

Our standard of review in dissolution of marriage cases is the same as that used for any court-tried case: we must affirm the trial court’s decree unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or misapplies the law. Vanderpool v. Vanderpool, 250 S.W.3d 791, 794 (Mo.App.2008); see also Rule 84.13(d). When reviewing a dissolution decree, we view the evidence in the light most favorable to the decision, In re Marriage of Taylor, 244 S.W.3d 804, 808 (Mo.App.2008), and the party challenging the decree “has the burden of demonstrating error.” Id.‘A trial court is free to believe or disbelieve all, part or none of the testimony of any witness.’” In re Marriage of Pahlow, 39 S.W.3d 87, 90 (Mo.App.2001) (quoting In re Marriage of Thompson, 24 S.W.3d 751, 755 (Mo.App.2000)).

In his first point relied on, Husband asserts the trial court erred in entering a judgment against him

in the amount of $7,103.56 for equalization of the parties’ equity in their marital property because the assessment of [Husband’s] total value of $14,341.86 and [Wife’s] total value at a mere $134.74 amounted to an abuse of discretion in that the division was so unduly weighted in favor of [Husband] that it was unfair and inequitable given the weight of the evidence and Missouri law.[]

A trial court is given broad discretion in dividing property, and we will interfere with its decision only if the division is so unduly weighted in favor of one party that it amounts to an abuse of discretion. Kirkwood v. Kirkwood, 77 S.W.3d 675, 680 (Mo.App.2002). The trial court abuses its discretion only when its ruling is “clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration.” In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo.App.2002). “The division of property is presumed to be correct, and the party challenging the division bears the burden of overcoming the presumption.” Rivers v. Rivers, 21 S.W.3d 117, 123 (Mo.App.2000); see also In re Marriage of Ward, 955 S.W.2d 17, 21 (Mo.App.1997). Pursuant to section 452.330, in dissolving a marriage, the trial court awards each spouse his or her non-marital property, then divides the remaining marital property and debts in a reasonable manner after consideration of all relevant factors enumerated in section 452.330. See Rivers, 21 S.W.3d at 122; Kester v. Kester, 108 S.W.3d 213, 224 (Mo.App.2003). There is no set formula concerning the weight given to the factors considered under section 452.330. Kester, 108 S.W.3d at 224. It is clear that the “[division of the marital property need not be equal, ‘but [the] division of the marital assets must be fair and equitable given the circumstances of the case.’” Travis v. Travis, 163 S.W.3d 43, 47 (Mo.App.2005) (quoting Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App.2004)).

Here, after finding Husband had no non-marital property, the trial court awarded Husband $46,641.86 in marital property which included his truck; two trailers; a motorcycle; his equipment, money on hand, and interest in Dickey’s Culverts; and miscellaneous smaller items. The following marital debts totaling $32,300.00 were also allocated to Husband: a debt to Century Bank of the Ozarks for $21,450.00 for his truck; a loan for Dickey’s Culverts with Century Bank of the Ozarks for $2,250.00; and a debt owed to Thomas and Rosalie Williams for a motorcycle he purchased. The total value of property awarded to Husband after the subtraction for debts was $14,341.86.

Wife was awarded non-marital property in the amount of $13,700.00, which included the following: a 1929 T bucket valued at $2,000.00; a 1967 GMC Truck valued at $1,500.00; some antique jewelry valued at $10,000.00; an antique coin collection valued at $50.00; and some antique guns valued at $150.00. The trial court awarded Wife $9,756.74 in marital property, which included her personal vehicle, a trailer, a horse, money in several bank accounts as well as cash on hand, 2 John Deere tractors, some tools, numerous home furnishing items, a sewing machine, and other miscellaneous objects. The following debts in the amount of $9,622.00 were allocated to Wife: a debt to W.D. Grinkavitch, Wife’s mother, in the amount of $5,150.00 for a loan given to Wife “to help [Wife] make it through the month and like buy hay and pay for attorney fees;” a debt to Maxine Linthicum in the amount of $1,000.00 which was borrowed by Wife in order to pay her attorney’s retainer fee; a debt to her landlord, Karen Carpenter, for $2,675.00 in back rent; certain medical debts in the amount of $497.00; and a debt to WP Vet for $300.00. The total value of the property set aside to Wife was $134.74. The difference in the total value awarded to Husband and the total value awarded to Wife was $14,207.12. As a result, the trial court split that amount in half and ordered Husband to pay Wife an “EQUALIZATION PAYMENT” of $7,103.56.

As already stated, the division of marital property need not be equal, but it must be fair and equitable considering the circumstances of the case. Rawlings v. Rawlings, 36 S.W.3d 795, 797 (Mo.App.2001). In the present matter, the trial court ultimately awarded the parties the same amount of marital property and debts. They each received their personál vehicles as well as the personal property they requested and Husband received all of his interest, equipment, and other items relating to his business. While Husband had no non-marital property, Wife had a small amount of non-marital property composed mainly of family heirlooms which she asserted were not ever to be sold. The parties owned no real property to be divided and there were no children born of the marriage. It appears that the parties contributed equally to the marriage in that Husband worked throughout the marriage and Wife worked until her work related injury after which she stayed at home to care for the house. There is nothing in this record to suggest that the division of property and debts in the present matter was anything other than just and fair under the circumstances of this case and the five factors set out in section 452.330.1. We assume the trial court’s division of property .is correct and we find Husband has failed to meet his burden in overcoming that presumption. Rivers, 21 S.W.3d at 123. The trial court did not err. Point I is denied.

In his second point relied on, Husband maintains the trial court erred in “ordering [him] to acquire additional work in order to support the award of $1,050.00 of monthly maintenance.... ” He argues there was insufficient evidence showing that he had additional work available as a boilermaker to support the imputation of income to Husband in the amount of $500.00 a month and he further contends Wife had sufficient property to meet her reasonable needs.

A trial court is afforded broad discretion in determining whether or not to award maintenance. Elrod, 144 S.W.3d at 380. The determination of whether to award maintenance under section 452.335.1 is a two-step procedure. In re Marriage of Moyers, 272 S.W.3d 500, 503 (Mo.App.2008). “In the first step, section 452.335.1 requires the trial court to find that: (1) the party seeking maintenance lacks sufficient property, including marital property apportioned to that spouse, to provide for his or her reasonable needs; and (2) the party seeking maintenance is unable to support herself through appropriate employment.” Elrod, 144 S.W.3d at 380. Once the trial court makes these findings, section 452.335.2 requires that the trial court, in determining the amount and duration of its maintenance award, consider the ten factors enumerated in the statute and “ ‘balance the reasonable needs of the spouse seeking maintenance with the other spouse’s ability to pay.’ ” Linton v. Linton, 117 S.W.3d 198, 205 (Mo.App.2003) (quoting Myers v. Myers, 47 S.W.3d 403, 409 (Mo.App.2001)).

Here, the record shows Wife was allocated non-marital properties, consisting of vehicles, jewelry, and personal items valued at $13,700.00, and $9,756.74 in marital property consisting of a vehicle, trailer, horse, tractors, tools, home furnishings and modest bank accounts. She was also awarded an equalization payment of $7,103.56 from Husband. The trial court also allocated debts to Wife in the amount of $9,622.00. It is readily apparent that Wife has but a modest amount of income-producing property.

Wife also presented evidence that her monthly expenses ranged between $1,732.00 and $1,857.00 and there is support in the record for the trial court’s determination that Wife’s reasonable monthly expenses amount to $1,732.00. The trial court determined that Wife also presented evidence of additional one-time expenses amounting to $14,700.00. Wife also presented evidence that she suffered a work related injury in 1992 that prevented her from returning to work for the railroad or from finding gainful employment. She testified that her work related injury caused her to have two ruptured discs as well as a herniated disc. She stated she has had at least five surgeries on her back since the time of the injury and she has even had part of her spine fused. She also related she is in ongoing therapy for her back issues and she specifically was undergoing constant pain management care such as shots and medications. It is clear from the record that Wife met her threshold burden of proving she was “unable to support herself through appropriate employment.” Id. Wife’s only other source of income is her monthly income from her social security disability in the amount of $789.00. An award of maintenance “is ‘aimed at closing the gap between the income of the spouse who seeks maintenance and that spouse’s monthly expenses.’” Tarneja v. Tarneja, 164 S.W.3d 555, 564 (Mo.App.2005) (quoting N.M.O. v. D.P.O., 115 S.W.3d 854, 857 (Mo.App.2003)). It is clear that, based on her income and expenses, Wife lacked sufficient property to provide for her reasonable needs. See Elrod, 144 S.W.3d at 381.

Turning to the second part of our analysis, we now examine the ten factors set out in 452.335.2 and we “ ‘balance the reasonable needs of the spouse seeking maintenance with the other spouse’s ability to pay.’ ” Linton, 117 S.W.3d at 205 (quoting Myers, 47 S.W.3d at 409). We initially note that the parties appeared to have a comfortable standard of living and neither party seems to be asserting an unreasonable amount for his or her necessary, periodic expenses. Further, the parties were married for seventeen years which is clearly a “considerable duration.”

The record shows Husband earned $7,364.00 from his business in 2005, $21,846.00 in 2006 and $6,644.00 in 2007. Husband offered testimony that as a result of weak earnings from his business he worked as a boilermaker on a part-time, as-needed basis, commencing in 2005 and averaging $25.00 an hour. The record shows that Husband earned $5,570.00 for his boilermaker work in 2006, and $20,585.00 for his boilermaker work in 2007. Husband related he was 52 years of age and in reasonably good health and was able to be gainfully employed for the foreseeable future. The trial court then found that in 2007 Husband’s monthly income averaged $2,412.75. Husband presented evidence that his monthly expenses approximated some $1,567.50, which the trial court implicitly found to be reasonable. The trial court then determined Husband “has additional work available as a boilermaker and could increase his income by taking this work,” and that Husband “is capable of earning an additional $500.00 per month if he would avail himself of the additional boilermaker work” thus giving him “a surplus of $1,345.25.”

In our analysis, we initially observe that reasonable needs “[do] not automatically equal the standard of living established during the marriage.” Nichols v. Nichols, 14 S.W.3d 630, 636 (Mo.App.2000); see Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977). Indeed, “a court is not required to award maintenance to meet all of a spouse’s needs even if the other spouse has sufficient resources to provide such support.” Calhoun v. Calhoun, 156 S.W.3d 410, 415 (Mo.App.2005); see Linton, 117 S.W.3d at 208. Unfortunately, in the instant matter, Wife is unable to work outside the home and there are insufficient monetary resources to provide the parties with a standard of living similar to that which they enjoyed while married or to provide for each party’s reasonable needs. Wife does receive disability payments in the amount of $789.00 and apparently receives government supported medical assistance. As part of the division of marital property, Wife was granted a cash equalization award from Husband in the amount of $7,103.56, and it may be that Wife may choose to sell some of her personal properties such as her horse, trailer, two John Deere tractors or other assets in order to raise money. See In re Marriage of Torix, 863 S.W.2d 935, 939 (Mo.App.1993).

Additionally, “[i]n considering a party’s capacity to pay maintenance, ‘the court may impute income to a spouse according to what he ... could earn by use of his ... best efforts to gain employment suitable to his ... capabilities.’ ” Hall v. Hall, 118 S.W.3d 252, 257 (Mo.App.2003) (quoting Kunkel v. Kunkel, 84 S.W.3d 557, 561 (Mo.App.2002)); see Hill v. Hill, 53 S.W.3d 114, 117 (Mo. banc 2001). The spouse’s past and present earnings may be considered in making that determination. Hall, 118 S.W.3d at 257. With that being said, “[i]mputing income depends on the facts, determined case-by-case in the sound discretion of the trial court.” In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 783 (Mo. banc 2003).

In relation to his boilermaker work, Husband related he attempted to get into a union, but the union required completion of 6,000 non-union hours of journeyman work spanning a period of seven years in order to obtain a “union book card.” Once he obtained a union book card, only then would he be able to work in any capacity for the union. Therefore, he asserted he was basically offered only apprenticeship work at less money. Indeed, Husband testified he never worked full-time as a boilermaker and the record reveals that from about 2006 through 2007 he was offered only eleven weeks out of each year for employment as a boilermaker. Further, he testified that as of December 10, 2008, he had been offered nine weeks of employment as a boilermaker. Additionally, Husband testified that performing boilermaker activities was very physically demanding and the majority of boilermakers were young men between the ages of 20 to 25 years of age. He testified that he did not believe he would be able to maintain year-round employment as a boilermaker due to his age and his health since the average boilermaker’s work load is seven days a week for ten to twelve hours a day, involving a lot of heavy lifting, climbing, and exposure to chemicals. Furthermore, during the time he worked as a boilermaker he was unable to perform his self-employment work at Dickey’s Culverts, thereby reducing his income from Dickey’s Culverts. Indeed, the record shows that Husband’s work schedule varied from week-to-week and his culvert business did not produce a regular paycheck. On the other hand, Wife’s evidence regarding Husband’s boilermaker work was sketchy at best. She testified she overheard a conversation between Husband and his foreman on the phone, wherein Husband told the foreman that he “didn’t want to work over six to eight weeks at a time.”

It is this Court’s view that the evidence does not indicate Husband is able to presently pay $1,050.00 a month in modifiable maintenance and meet his reasonable needs at the same time. Bolch v. Bolch, 78 S.W.3d 769, 773 (Mo.App.2002). This is because his business income from Dicky’s Culverts has been declining in the past three years, and when he works as a boilermaker he cannot work at the same time at his culvert business. Additionally, it is not clear that he can obtain a greater number of hours of work as a boilermaker in the future because he is not in the boilermaker union and works as an apprentice. Even if the trial court did not view Husband’s testimony as credible in whole or in part, little evidence was presented from which the trial court could have arrived at its amount of imputed income. See Monnig v. Monnig, 53 S.W.3d 241, 247 (Mo.App.2001). “While a trial court can rely on reasonable inferences in determining whether to impute income, it cannot rely on speculation.” Sherman v. Sherman, 160 S.W.3d 381, 397 (Mo.App.2004). Additionally, Husband is now past 53 years of age and may or may not have the physical stamina to continue in this line of work.

Accordingly, we reverse the maintenance award but need not remand for additional evidence. The trial court found that to meet her reasonable needs, Wife needed to receive maintenance from Husband in the amount of $943.00 per month. In addition, the trial court found that Wife “has further current needs in the lump sum amount of $14,700.00.” After improperly imputing $500.00 per month in additional income to Husband, the trial court found Husband’s income exceeded his reasonable needs by $1,345.25 per month. Based on this purported excess and its view of Wife’s reasonable needs, the trial court ordered Husband to pay Wife maintenance in the amount of $1,050.00 per month. In that the extra $500.00 per month of income imputed to Husband by the trial court was not supported by the evidence adduced at trial, we reduce Husband’s income by that amount to reflect his actual income. See Lee v. Gornbein, 124 S.W.3d 52, 61 (Mo.App.2004). Therefore, when Husband’s actual income is used, that amount exceeds his necessary expenses by $845.25 per month or $1,345.25 minus the $500.00 of imputed income. Rule 84.14 provides that an appellate court shall “give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case.” As such, we reverse the trial court’s award of modifiable maintenance in the amount of $1,050.00 per month. Pursuant to Rule 84.14, this Court enters judgment for Wife and against Husband for modifiable maintenance of unlimited duration in the amount of $845.25 per month, the maximum amount of Wife’s necessary support that Husband is reasonably able to pay, commencing August 1, 2008, due and payable on the first date of each month thereafter. In all other respects, the Judgment of the trial court is affirmed.

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

      . We note Wife did not file a brief in this appeal.

      . The parties testified that Wife’s settlement money was spent in the following ways: they spent $200,000.00 to build a house, improve the property on which the house was located, and to buy equipment; and they spent $14,000.00 in relation to Wife’s doctor’s appointments. In 2005 they sold their home for $285,000.00 with the outstanding loan on the home at that time totaling $195,982.00. The remainder of the money was put into several CD’s which were expended prior to the parties’ separation.

      .We note there was a great deal of procedural history which occurred between the time of trial and the entry of the Judgment in this matter. There were several previous judgments entered nunc pro tunc to cure clerical mistakes as well as numerous motions filed by both parties. These procedural dealings are not necessary to recite in our review and need be mentioned only to explain the long period of time which elapsed between the trial and the Judgment being entered.

      . All rule references are to Missouri Court Rules (2009).

      . We note Husband’s brief suffers from several briefing deficiencies; however, the majority of these issues do not impair our review of Husband's allegations of error. The bulk of Husband’s argument in his first point relied on is directed at the trial court’s alleged mis-classification and allocation of certain property, the trial court’s miscalculation of certain debt amounts, and the trial court’s alleged undervaluation of certain property such that it entered an "incorrect valuation of the marital property.” These issues are not specifically raised in the point relied on. " 'Errors raised for the first time in the argument portion of the brief and that are not raised in the point relied on need not be considered by this Court,' ” Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 676 n. 11 (Mo.App.2008) (quoting Pearman v. Dep’t of Social Srvs., 48 S.W.3d 54, 55 (Mo.App.2001)). As such we shall address Husband’s point relied on as framed and we will not discuss the issues raised solely in the argument portion of his brief.

      .All statutory references are to RSMo 2000.

      . She testified to one time expenses in the amount of $3,000.00 to get her vehicle repaired; $700.00 for dental work; $6,750.00 to repair her two tractors; $450.00 for vaccines for her seven dogs, four cats and one horse; $10,000.00 for a spinal cord stimulator to aid in her pain relief; $1,000.00 for a new wood stove; and $800.00 for a new washer and dryer. The trial court determined the farm expenses, the expenses for the care of her animals and the expense for the new washer and dryer were not necessary expenses. The trial court did not abuse its discretion in determining that her additional, one time expenses amounted to $14,700.00.


text:
    Ellen M. ELICEIRI, Respondent, v. George L. ELICEIRI, Appellant.
    No. ED 93623.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Simone Haberstock McCartney, Saint Louis, MO, for Appellant.
    Joanne Martin Descher, Saint Louis, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

George L. Eliceiri appeals the judgments denying him relief from qualified domestic relations orders entered in connection with the dissolution of his marriage to Ellen M. Eliceiri. No error of law appears.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgments are affirmed under Rule 84.16(b).


text:
    Joel NORMAN, Appellant, v. BI-STATE DEVELOPMENT AGENCY, Respondent.
    No. ED 93602.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 13, 2010.
    Charles D. Barbour, St. Peters, MO, for Appellant.
    John J. Johnson, Jr., St. Louis, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Joel Norman (hereinafter, “the Claimant”) appeals the decision of the Labor and Industrial Relations Commission (hereinafter, “the Commission”), which adopted the findings of the Administrative Law Judge denying compensation to Claimant after he developed carpal tunnel syndrome while working for Bi-State Development Agency (hereinafter, “Employer”). The Claimant asserts the Commission’s decision is not supported by competent and substantial evidence and is against the weight of the evidence. Specifically, the Claimant challenges the weight the Commission gave to conflicting medical expert testimony.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. The Commission’s award is “supported by competent and substantial evidence upon the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The Commission’s decision is affirmed pursuant to rule 84.16(b).


text:
    Tamond THOMAS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93428.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.

      Scott Thompson, District Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Tamond Thomas (Movant) appeals from the motion court’s Conclusions of Law and Order (judgment) denying his Rule 29.15 Motion to Vacate, Set Aside, or Correct the Judgment and Sentence and Request for Evidentiary Hearing (PCR Motion) alleging he received ineffective assistance from his plea counsel (Counsel).

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment of the motion court is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2); Rule 29.15(k). No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    James W. TORACK, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93357.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

James W. Torack appeals from the motion court’s Findings of Fact and Conclusions of Law and Judgment denying his Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing (PCR Motion), alleging he received ineffective assistance from his plea counsel.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The motion court’s denial of the PCR Motion is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2); Rule 29.15(k). No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: GEORGE W. DRAPER III, Judge.

text:
    Lezlee LUCAS, Respondent, v. John LUCAS, Appellant.
    No. ED 93175.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 13, 2010.

      Susan M. Hais, Robert Dennis, Clayton, MO, for Appellant.
    Cary J. Mogerman, Stephanie L. Jones, Joseph J. Kodner, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

John Lucas (hereinafter, “Husband”) appeals from the trial court’s judgment denying his motion to dismiss Lezlee Lucas’ (hereinafter, “Wife”) motion for a temporary restraining order and preliminary injunction pendente lite. We dismiss this appeal as moot.

Wife initiated a dissolution proceeding against Husband on October 26, 2006. During the course of the contentious litigation, Wife filed a Verified Application for Temporary Restraining Order and Preliminary Injunction Pendente Lite on November 20, 2007. Wife sought a temporary restraining order pursuant to Section 452.315.2(1) RSMo (2000) to restrain Husband from transferring, concealing, disposing, or otherwise diminishing marital property, except in the usual and ordinary course of business and for the necessities of life. Wife also requested Husband to issue an accounting to her for any extraordinary expenditures or liquidation of marital property. On March 24, 2008, the trial court entered its judgment (hereinafter, “the March judgment”) granting Wife a temporary restraining order and ordering:

[Husband] shall not transfer, encumber, conceal or in any way dispose of or dissipate any property, whether marital or separate, except in the usual course of business or for the necessities of life.
[Husband] shall not make any extraordinary expenditure for any purpose without prior agreement of [Wife], or prior Order of the Court. This Order shall remain in effect until further Court Order.

Husband did not file a motion to set aside the judgment or seek an appeal of this ruling.

Wife subsequently filed a Motion to Cite and Punish Husband for Contempt and a separate Motion to Preserve a Marital Asset on September 22, 2008, alleging Husband violated the March judgment by disposing of or dissipating assets without her prior agreement. On October 3, 2008, Husband filed a response and a motion to dismiss Wife’s motions because she failed to comply with Section 526.070. On June 1, 2009, Husband filed another motion to dismiss, claiming the March judgment was null and void because Wife failed to post a bond pursuant to Section 526.070.

The trial court held a hearing on these issues on June 2, 2009, and issued its judgment thereafter (hereinafter, “the June judgment”). The trial court denied Husband’s motion to dismiss and granted Wife relief. The trial court found there was no just reason for delaying an appeal of its denial of Husband’s motion.

Husband filed his notice of appeal with this Court on June 11, 2009, to appeal the June judgment. While this appeal was pending, the trial court issued its judgment dissolving the parties’ marriage on November 18, 2009. Husband filed his appellant’s brief on December 1, 2009. Wife filed a motion to dismiss Husband’s appeal on December 30, 2009. Wife alleged the June judgment did not constitute a final appealable judgment, despite the trial court’s certification. Husband filed a response, stating, “Although [Husband] is taking this appeal from the [June judgment], the crux of [Husband’s] appeal is the [March judgment].” Wife’s motion was taken with the case and further expounded upon in her respondent’s brief. This appeal was taken under submission by this Court on March 31, 2010, approximately four months after the trial court entered the dissolution judgment.

As a threshold matter, we must determine whether a controversy has been rendered moot prior to undertaking appellate review. Adams v. City of Manchester, 242 S.W.3d 418, 428 (Mo.App. E.D.2007). “A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy.” Reynolds v. City of Valley Park, 254 S.W.3d 264, 266 (Mo.App. E.D.2008)(quoting Precision Invs., L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007)). Stated differently, “[w]hen there is an occurrence that makes a court’s decision unnecessary or makes granting any relief by the court impossible, then the issue is moot and should not be addressed.” State ex rel. Goodman v. St. Louis Bd. of Police Comm’rs, 181 S.W.3d 156, 160 (Mo.App. E.D.2005). Mootness implicates justicia-bility, and therefore, we may dismiss a case for mootness sua sponte. In re Estate of Washington, 277 S.W.3d 777, 780 (Mo.App. E.D.2009).

As a general rule, Missouri courts do not decide moot issues. MacFarlane v. Wheeler, 285 S.W.3d 424, 425 (Mo.App. E.D.2009). This Court has discretion to decide a moot question, however, if it falls within one of two narrow exceptions to this rule. M.W. v. Mabry, 282 S.W.3d 33, 35 (Mo.App. E.D.2009). First, we may address issues that have become moot after the appeal has been argued and submitted. Carlisle v. Carlisle, 277 S.W.3d 801, 802 (Mo.App. E.D.2009)(quoting M.W., 282 S.W.3d at 35). Second, we may address the issue if the appeal presents an issue that: “(1) is of general public interest and importance, (2) will recur, and (3) will evade appellate review in future live controversies.” Warlick v. Warlick, 294 S.W.3d 128, 130 (Mo.App. E.D.2009).

Neither of these narrowly construed exceptions apply. First, the issue became moot prior to the appeal being argued and submitted to this Court. Moreover, Section 452.315.6(3) states a temporary restraining order or injunction “[t]erminates when the final judgment is entered or when the petition for dissolution or legal separation is voluntarily dismissed.” The trial court entered its final judgment on November 18, 2009, and as a result, the temporary restraining order was terminated, rendering this appeal moot. Second, the appeal does not present an issue of general importance, nor will it recur, and this specific issue will not evade appellate review given the likelihood one or both of the parties will appeal the trial court’s dissolution judgment. Wife’s motion to dismiss Husband’s appeal is granted.

The appeal is dismissed.

KURT S. ODENWALD, P.J., and GARY M. GAERTNER, JR., J„ concur.

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


text:
    Gregory JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93297.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Jo Ann Rotermund, Saint Louis, MO, for appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Gregory Johnson appeals the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Johnson argues he was denied his right to effective assistance of trial counsel. We find the motion court’s findings and conclusions are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b).


text:
    Rufus MOOREHEAD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93285.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Timothy Fomeris, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Rufus Moorehead appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(2).


text:
    Craig SAURBERRY, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 93227.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Charles E. Kirksey, St. Louis, MO, for appellant.
    Chris Foster, Atty. Gen., Trevor Bos-sert, Spec. Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Craig Saurberry appeals from the circuit court’s judgment sustaining the Director of Revenue’s order revoking his driving privileges. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(1).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Moses HARDWRICT, Defendant/Appellant.
    No. ED 93208.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.
    Shaun J. Mackelprang, Jefferson City, MO, for Plaintiff/Respondent.
    Brocea L. Smith, St. Louis, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Moses Hardwrict (Appellant) appeals from the trial court’s judgment entered upon a jury verdict convicting him of forcible rape, kidnapping, and two counts of armed criminal action. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the trial court excluding Appellant’s proffered evidence was not an abuse of discretion. State v. Mozee, 112 S.W.3d 102, 105 (Mo.App. W.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Mark WEEDMAN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93165.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.
    Alexandra Johnson, Saint Louis, MO, for Movant/Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent/Respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.
   ORDER

PER CURIAM.

Mark Weedman appeals from the judgment of the trial court denying his Missouri Rule of Criminal Procedure 29.15 motion for postconviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s findings of fact and conclusions of law are not clearly erroneous. Glass v. State, 227 S.W.3d 463, 468 (Mo.banc 2007). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Mark I. SEVIER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93132.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.
    Mark A. Grothoff, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Mark Sevier (Movant) appeals from the judgment of the Circuit Court of Warren County denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Movant contends that the motion court erred in denying his claim that his appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in admitting hearsay testimony from the victim’s mother.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    Brian F. MUELLER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70148.
    Missouri Court of Appeals, Western District.
    April 20, 2010.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Evan J. Buchheim, Jefferson City, MO, for Respondent.
    BEFORE DIVISION ONE: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   ORDER

PER CURIAM.

Brian Mueller appeals the denial of his Rule 29.15 motion following an evidentiary hearing. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).