author: GARY D. WITT, Judge.

text:
    Anisa R. CROSS, Appellant-Respondent, v. Justin G. CROSS, Respondent-Appellant.
    Nos. WD 71386, WD 71439.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Application for Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Leonard K. Breon and Carroll G. Lef-fler, Warrensburg, MO, for appellant-respondent.
    Daniel Baker, Sedalia, MO, for respondent-appellant.

      Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Justin Cross (“Father”) appeals the judgment of the trial court that denied his motion to modify child support and granted Anisa Cross’s (“Mother”) motion to modify child support. Mother cross-appeals the trial court’s calculation of the modified child support obligation. We affirm in part and reverse in part.

Factual Background

Father and Mother were married in August of 1999, and the Circuit Court of Pettis County entered its Judgment Order and Decree of Dissolution dissolving the parties’ marriage on March 27, 2007. Two children were born of the marriage, Brooklyn and Gage Cross, who remain uneman-cipated. As a part of the original divorce judgment, the trial court awarded joint legal custody of the children to the parties but gave sole physical custody to Mother, with Father being allowed specific visitation rights. Additionally, the trial court ordered Father to pay Mother $717 in child support on a monthly basis.

On February 11, 2009, Father filed a motion to modify both custody and child support, alleging that substantial and ongoing changes in circumstances required a reduction in the child support he was paying to Mother. Specifically, Father asserted in his motion that because he had to work so many hours to pay the child support order, this work interfered with his ability to meaningfully parent his children. In response to Father’s motion to modify, Mother filed a counter-motion to increase Father’s child support on the basis that Father’s income had substantially increased since the orignal dissolution judgment had been entered, and also because the cost of the children’s care had increased since the entry of that order.

Shortly after the orignal divorce judgment, Father took on a second full time job. He continued working both full time jobs until shortly before the filing of this action. On January 29, 2009, Father sent a letter to one of his employers giving two weeks’ notice and resigning his position. In that letter he states, “I am currently taking my ex-wife back to court for full custody of my children and have been strongly advised to quit one of my full-time jobs to ensure the chance of victory for my case.” He further stated in this letter that he looks “forward to continuing to work with you as soon as my court case is over.” Less than two weeks after sending this letter, Father filed his Motion to Modify.

On July 9, 2009, a hearing was held on the motions. The trial court entered its Judgment of Modification of Support, which, inter alia, increased Father’s ordered child support to $1,034 a month. Further factual details regarding these proceedings will be outlined as relevant in the analysis section herein.

Standard of Review

The appropriate standard of review for this matter is as follows:

The standard of review in a court tried case, including one pertaining to modification of child support, is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. A trial court is free to believe or disbelieve all, part or none of the testimony of any witness. We give deference to the trial court’s determination of the credibility of the witnesses; and the evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment.

McCoy v. Scavuzzo, 250 S.W.3d 1, 3 (Mo.App. W.D.2008) (citations and quotations omitted).

Analysis

1. Father’s Appeal

In Point One, Father argues that the trial court erred in denying his motion to modify because the court should not have determined his income to be the amount he earned while working two full-time jobs.

When ruling on a motion for child support modification, there is a two step process under Rule 88.01. The trial court must:

(1) determine and find for the record the presumed correct child support amount by using Form 14; and (2) make findings on the record to rebut the presumed correct child support amount if the court, after consideration of all relevant factors, determines that amount is unjust and inappropriate. Under the first step, a trial court can either accept a Form 14 amount calculated by a party, or if the court rejects the parties’ Form 14 amounts as incorrect, the court must prepare its own correct Form 14 calculation. Either way a trial court chooses to proceed, the use of Form 14 in calculating child support in a modification proceeding is mandatory, and the record should clearly show how the trial court arrived at its Form-14 amount.

Crow v. Crow, 300 S.W.3d 561, 564 (Mo.App. E.D.2009) (citations and quotations omitted).

Here, Father failed to offer a Form 14 into evidence, the trial court rejected Wife’s proposed Form 14 Worksheet as incorrect based on the evidence presented at trial, and the Court completed its own. “ ‘In determining whether the trial court correctly calculated the [PCSA], we review the calculation to ensure that not only is it done accurately from a mathematical standpoint, but that the various items and their amounts were properly included in the calculation and supported by substantial evidence.’ ” Ricklefs v. Ricklefs, 39 S.W.3d 865, 870 (Mo.App. W.D.2001) (quoting Nelson v. Nelson, 25 S.W.3d 511, 521 (Mo.App. W.D.2000)).

Father argues that the trial court erred in generating its Form 14 Worksheet because the Court improperly imputed income to Father. The crux of Father’s argument on appeal is that imputation of income “requires a finding of either unemployment or underemployment,” and because the Court did not (and could not) make such a finding, it erred when imputing income on Father. We disagree.

To support his argument that a specific and articulated finding of unemployment/underemployment is required to impute income as a matter of law, Father cites to Civil Procedure Form No. 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14 (“Directions”). In completing the Form 14 Worksheet, “ ‘the court is to be guided by the worksheet’s directions for completion and comments for use, and the evidence in the case.’” Ricklefs, 39 S.W.3d at 870 (quoting Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App. W.D.1996)). However, Father has failed to cite to and analyze the relevant portions of the Directions in making this argument on appeal. Specifically, Father focuses solely on the language that states “[i]f a parent is unemployed or determined to be underemployed, ‘gross income’ may be based on imputed income.” Directions, Line 1: Gross Income, DIRECTION. But nothing in this language states that a specific and articulated finding of unemployment or underemployment is a pre-requisite for income to be imputed to a parent, and Father cites no authority that supports such a holding.

The relevant determination in deciding “whether to impute income to a parent in calculating the Form 14 PCSA, is whether, applying all relevant factors, including those factors found in Comment H that are relevant, there is evidence to support a finding that the parent is deliberately limiting his or her work to reduce income to avoid paying child support.” Sherman v. Sherman, 160 S.W.3d 381, 385 (Mo.App. W.D.2004). Comment H of the Directions is entitled “Imputed Income” and states the following;

When determining whether to include imputed income and, if so, the amount to include in a parent’s “gross income,” a court or administrative agency shall consider all relevant factors, including;
(1) The parent’s probable earnings based on the parent’s work history during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods;
(2) The parent’s occupational qualifications;
(3) The parent’s employment potential;
(4) The available job opportunities in the community; and
(5) Whether the parent is custodian of a child whose condition or circumstances make it appropriate that the parent not be required to seek employment outside the home.

Directions, Line 1: Gross Income, cmt. H (emphasis added).

Comment C of the Directions entitled “Overtime Compensation and Secondary Employment” states:

When determining whether to include overtime compensation and earnings from secondary employment and, if so, the amount to include in a parent’s “gross income,” a court or administrative agency shall consider all relevant factors, including:
(1) The consequence of exercise by the parent of periods of temporary physical custody or visitation with the children who are the subject of this proceeding on the parent’s ability to receive overtime compensation or earnings from secondary employment;
(2) The motivation of the parent in working overtime, including whether overtime was a condition of employment, or in working secondary employment during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods;
(3) The amount of overtime compensation and earnings from secondary employment received by the parent during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods;
(4) The realistic expectation that the parent will continue to receive the amount of overtime compensation and earnings from secondary employment received during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods; and
(5) The number of additional dependents for whom the parent is financially responsible, whether or not there is an existing court or administrative order under which the parent is paying or receiving support.

Directions, Line 1: Gross Income, cmt. C.

A glaring omission from Father’s analysis is that he fails to even mention the language of Comments C and H of the Directions, let alone attempt to analyze how their provisions required the trial court to make such a specific finding. Specifically, Comment H states that the trial court shall consider all relevant factors, including the parent’s probable earnings. Id. cmt. H(l). “In determining probable earnings, the trial court may rely on any time period as may be appropriate under the circumstances.” Ricklefs, 39 S.W.3d at 875. None of the relevant factors in Comment H are whether the parent is unemployed or underemployed.

Moreover, 'Father’s argument on appeal ignores the purpose of imputing income to parents. “The theory behind imputing income to a spouse/parent is directed toward preventing a spouse from escaping responsibilities to the family by deliberately or voluntarily reducing his or her income.”. Buchholz v. Buchholz, 166 S.W.3d 146, 152 (Mo.App. S.D.2005). “Imputation of income is proper where a parent has voluntarily reduced his or her income without justification.” Peniston v. Peniston, 161 S.W.3d 428, 434 (Mo.App. W.D.2005). “The most common scenario for voluntary reduction of income without justification is where a parent deliberately quits work to reduce his or her child support.” Id.

Here, the circuit court made detailed findings and conclusions that Father voluntarily reduced his income in order to escape his child support responsibilities. In fact, this Court is at a loss as to how the evidence in this case could be interpreted any other way. No more clear indication of Father’s intent could be found than his own words in his letter of resignation.

Moreover, the trial court made detailed findings of fact pertaining to Father’s “probable earnings,” and in doing so, the Court was permitted to gauge “any time period as may be appropriate under the circumstances.” Ricklefs, 39 S.W.3d at 875. Father does not dispute that for two years after the dissolution of his marriage and up to two weeks prior to filing the instant modification motion, he was working two full time jobs and earning $6,053.00 per month. Accordingly, the trial court was warranted in using this figure as Father’s gross income when completing the Form 14.

Father asserts that he no longer makes this much income but ignores the detailed findings of the trial court as it pertains to his “probable earnings” in the future, as is set forth in the Form 14 Directions, Comment H(l). There was substantial evidence from which the Court could conclude that Father “quit his second job in order to posture for this custody litigation, though he fully intended to resume that second employment once the litigation had concluded.” Specifically, Father’s letter of resignation of his second job that he submitted to his employer less than two weeks before filing his motion to modify was entered into evidence before the trial court. This is precisely the type of evidence that demonstrates that imputing Father’s income was proper because the trial court was free to conclude that Father voluntarily reduced his income so that he could attempt to evade his parental responsibilities. Peniston, 161 S.W.3d at 434.

Father argues at length that the reason he quit his second job was to invest time and energy into his family, but the trial court was free to reject these arguments based on the copious evidence that even after quitting this job he neglected his obligations to the two children from this previous marriage: “Respondent claims to need to reduce his hours at work in order to have more family time; however, his behavior does not demonstrate an increased desire to have more family time.” Pursuant to the original divorce judgment, Father was given extensive visitation rights with these two children, but it is undisputed that Father regularly failed to show up for visits, leaving Mother to handle the mess he caused. For example, Father was awarded a six week period in the summer of each year to spend with his children, but Father has never taken the children during this time period. At the hearing, the trial court heard anecdotal stories by Mother that on the rare occasions he was with the children, it was time spent begrudgingly and only after the children instigated contact with Father.

Father further argues that the trial court’s computation of the Form 14 essentially requires him to work two jobs and that such a requirement is simply unfair. But this argument ignores the fact that for two years Father voluntarily chose to work double time. Bonenberger v. Bonenberger, 108 S.W.3d 729, 732 (Mo.App. E.D.2003). In determining whether to include such secondary employment, the Directions expressly provide that the trial court is to weigh the “motivation of the parent in working overtime.” Directions, Line 1: Gross Income, cmt. C(2). Here the trial court found:

Since the dissolution judgment, Respondent has voluntarily taken on additional expenses knowing that he could not afford those expenses without working his second job. These expenses include a new girl friend and a new baby. He now seeks to have his original children bear the burden of these new expenses.

This, coupled with Father’s testimony that if his child support was not reduced by the trial court, it was his intention to return to two full-time jobs, and his letter to his previous employer that stated his intention to return to work there as soon as his modification action was concluded, was sufficient evidence to support the trial court’s imputation of income to Father.

“ ‘The issue presented, when income is imputed to a party, is whether the evidence supports the amount of income imputed.’ ” Monnig v. Monnig, 53 S.W.3d 241, 245 (Mo.App. W.D.2001) (quoting Honderick v. Honderick, 984 S.W.2d 205, 212 (Mo.App. W.D.1999)). ‘“A parent must have the capacity to earn [the] income which is imputed to him or her.’ ” Id. (quoting Walker v. Walker, 936 S.W.2d 244, 248 (Mo.App. S.D.1996)). “A court may consider past, present and anticipated earning capacity in determining the ability to pay child support.” Thill v. Thill, 26 S.W.3d 199, 207 (Mo.App. W.D.2000). “ ‘We will not substitute our judgment for that of the trial court absent a manifest abuse of discretion and will not disturb an award of child support unless the evidence is palpably insufficient to support it.’ ” Haden v. Riou, 37 S.W.3d 854, 860 (Mo.App. W.D.2001) (quoting Thill, 26 S.W.3d at 207).

Simply put, Father has failed to demonstrate how the trial court’s Form 14 was somehow in error, mathematically or otherwise. Father did not offer any Form 14 into evidence. Father has failed to demonstrate that the trial court’s figure of $6,053.00 was unsupported by the record for all of the aforementioned reasons.

Our previous opinion in Sieg v. Sieg is not controlling on this issue. 255 S.W.3d 20 (Mo.App. W.D.2008). In Sieg, the father appealed the judgment of the trial court that modified his child support on the basis that it improperly imputed income on him in calculating its Form 14. Id. at 23-25. In dicta, we stated that “[t]o have imputed the entire amount of Sieg’s gross monthly income of $10,000, the circuit court would have had to conclude that Sieg was unemployed-not underemployed.” Id. at 24 (emphasis added).

Sieg is inapplicable to this case for two main reasons. First, in reversing the court in Sieg, our holding was that, even when considering the evidence in the light most favorable to the trial court’s judgment, we could not “discern a sound basis from the evidence presented for a finding that Sieg’s monthly income was $10,000.” Id. at 23. We concluded that this basis alone required that the case be reversed and remanded for the circuit court to “reconsider Sieg’s gross monthly income.” Id. Sieg is distinguishable from this case because, as discussed at length above, it is undisputed that for two years after the dissolution of his marriage and up to two weeks prior to filing the instant modification motion that Father was working two full time jobs and earning $6,053.00 per month. Second, in Sieg, we concluded that that when imputing income, the trial court imputed the entire amount of Sieg’s gross monthly income of $10,000. Id. at 24. But in this case, it is clear from the evidence and findings of the trial court that the entire amount of Cross’s income was not imputed to him, but rather only the portion of his income that he voluntarily reduced without justification.

For all of the reasons, Father’s Point One is denied.

In Point Two, Father argues that the trial court erred when it modified the child support award because the court mistakenly attributed $100 “of extraordinary child rearing costs to [Mother] because it required [Father] to pay for counseling for the minor children twice in that [Father] already had the obligation to pay for fifty percent (50%) of non-covered health costs in the original Judgment Order and Decree of Dissolution.”

In completing its Form 14, the trial court allocated $370.00 of “other extraordinary child rearing costs” of “the minor children for private school and counseling.” Father does not dispute that the trial court was justified in awarding extraordinary child rearing costs in the amount of $270.00 as it pertained to the children’s private schooling. Rather, Father exclusively challenges the extraordinary costs of $100.00 as it pertains to counseling.

During oral argument, on this matter, both parties stipulated that the $100 of counseling costs for the minor child was no longer being spent on a continuing basis and that this amount should be deducted from the other extraordinary child rearing costs in the Form 14 in this case. Father’s obligation to pay half of all uncovered costs of health care for the minor children remains in effect.

II. Mother’s Cross-Appeal

In her sole Point Relied On in her cross-appeal, Mother argues that the trial court erred in completing its Form 14 because the court improperly allowed Father an adjustment to his gross income pursuant to Line 2c for Father’s newborn child in light of the fact that this child was born after the entry of the original divorce judgment.

Here, it is undisputed that after the divorce judgment was entered in 2007, Father had a child with another woman, not a party to this action, in 2008. Line 2(c) provides for an adjustment to the gross income for other children who are not part of the current proceeding for which a party has primary physical custody; however, the caveat for Line 2c provides that:

[T]he adjustment available to the moving parent in an action to increase or decrease the support payable under the existing order shall be the lesser of: (1) the adjustment to which that parent was entitled for the particular child on line 2a or 2c when the existing order was entered, or (2) the adjustment to which that parent is entitled for the particular child on line 2c as a result of an order in another action entered after the existing order.

Directions, Line 2c, CAVEAT (emphasis added).

“Since Husband was the moving party, he was not entitled to any adjustment for the child of his second marriage at the time the original support order was entered, as that child was not born at that time.” Monnig v. Monnig, 53 S.W.3d 241, 249 (Mo.App. W.D.2001). “Accordingly, the option (1) adjustment under the instructions is zero.” Id. “Thus, because the adjustment is limited to the lesser of the two options, Husband cannot be entitled to an adjustment on his motion to modify his support obligation.” Id.; see also Durbin v. Durbin, 226 S.W.3d 876, 881 (Mo.App. W.D.2007) (“The only child shown by the record to be in Father’s primary physical custody aside from those involved in this proceeding was the child he had with his second wife subsequent to the dissolution of his marriage to Mother.... Because the Line 2(c) adjustment is limited to the lesser of the two options, Father was not entitled to an adjustment to his gross income.”).

Father “does not dispute that when only one parent files a motion to modify an existing child support judgment, that parent is ‘the moving parent’ and is not entitled to a an adjustment of income as the result of an after-born child.” Rather, Father argues that this provision does not apply to the instant circumstances because he was merely “a moving party” and was not “the moving party,” thus rendering the Line 2c Directions inapplicable to the instant case. We disagree.

The Southern District addressed the issue of who constitutes a “moving party” pursuant to Line 2c in the following passage:

Although we find no definition of “moving party” in any rule or case, we find the following definition of “movant” in Black’s Law Dictionary 1014 (6th ed. 1990): “One who moves; one who makes a motion before a court; the applicant for a rule or order.” In his “cross motion to modify,” Benton prayed for an order “modifying the child support obligation in accordance with Rule 88.01.” In oral argument before us, Benton’s lawyer conceded that Benton, in his cross motion to modify, was a moving party within the meaning of that term in the directions for line 2.c.

Bloom v. Bloom (In re Marriage of Bloom), 926 S.W.2d 512, 517 n. 8 (Mo.App. S.D.1996).

Father does not dispute that he instigated the current proceedings by filing a motion to modify in February 2009. While it is true that Mother subsequently filed a counter-motion to modify, we do not see how this fact is relevant to our analysis. Specifically, Father fails to cite any authority to support his contention that when a parent files a motion to modify, the Directions do not apply to that parent when a counter-motion to modify is filed by the opposing party. Finally, Father concedes that he does not fall into the category of a “non-moving party,” and 'therefore he does not qualify for the exemption under Line 2e as a matter of law for the aforementioned reasons. See, In re Marriage of Cohen, 884 S.W.2d 35, 38 n.3 (Mo.App. E.D.1994). Therefore, we conclude that the trial court erred in adjusting Father’s income pursuant to Line 2c.

Point granted.

Conclusion

When recalculating the presumed child support award in the appropriate fashion, removing Father’s Line 2c adjustment and deducting the $100 of extraordinary child care costs per the stipulation of the parties, the presumed child support amount increases from $1,034 to $1,105 per month. The case is remanded to the trial court with directions to either enter judgment in favor of Mother for child support in the amount calculated by Civil Procedure Form No. 14, as is set forth above, or to enter a finding that the amount calculated is unjust and inappropriate and to enter judgment for child support in an appropriate sum. Beeman v. Beeman, 816 S.W.2d 15,18 (Mo.App. W.D.1991).

All concur.

      . Father also originally requested a modification of the custody of the children so that Father would be declared "to be the custodian of the minor children.” However, Father dropped this custody modification request at the hearing on the motion.

      . The trial court used the word “attributes” income rather than the word "imputes” income in its judgment. This Court does not believe this difference impacts our analysis of the issues in this case.

      . Father argues that "[njeither Ricklefs v. Ricklefs, 39 S.W.3d 865 (Mo.App. W.D.2001), nor State ex rel. Stirnaman v. Calderon, 67 S.W.3d 637 (Mo.App. W.D.2002), allow the imputation of income without a finding of unemployment or underemployment.” But we held in both Ricklefs and Stimaman that no authority exists to support the "contention that the trial court was required to make an express finding for the record that he was unemployed or underemployed as a precursor to ‘imputing’ income to him.” Ricklefs, 39 S.W.3d at 875; see also Stirnaman, 67 S.W.3d at 640 ("Calderon, like Ricklefs, has failed to direct our attention to any case holding that there must be an express finding for the record that he was unemployed or underemployed as a precursor to imputing income.”). Father argues that these cases stand for the proposition that both trial courts made the finding of unemployment or underemployment implicitly and that, therefore, such a finding must be inferable from the trial court’s judgment. While one could argue that in both Ricklefs and Stimaman the trial court did make such an implicit finding, neither case holds that such an implicit finding is a pre-requisite to imputing income. Id.

      . Although not critical to our disposition on appeal, the trial court’s findings were consistent with a finding that Father was underemployed relative to his chosen earning capacity during the relevant two year period in question.

      . On appeal, Father submits a Form 14 in his Appendix, which he asserts is his "Proposed Form 14,” and states that his gross income should be $3,349.00. We must disregard this Form 14 because it was not offered to the trial court.


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    SAFECO INSURANCE COMPANY OF AMERICA, Respondent, v. Sherri Lee SMITH, et al., Appellant.
    No. WD 71356.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Phillip A. Burdick, for Appellant.
    Timothy J. Wolf, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and ZEL M. FISCHER, Special Judge.
   JOSEPH M. ELLIS, Judge.

Thomas Allen Smith and Sherri Lee Smith (“the Smiths”) appeal from a summary judgment entered by the Circuit Court of Buchanan County in favor of Safeco Insurance Company in a declaratory judgment action filed by Safeco seeking a declaration that an insurance policy it issued does not provide coverage for Clint Smith with respect to a fatal accident that killed the Smith’s son, A.J. Smith. For the following reason, the judgment is reversed, and the cause is remanded for further proceedings.

On the evening of December 31, 2001, Eric Cox and A.J. were spending the night at Clint’s home, which is owned by his parents, Billy and Theresa Smith. Eric had driven to the Smith house in his 1991 Dodge Dakota pickup truck. After they had been drinking beer in the garage for a while, at about 10 p.m., despite the fact that Clint was fifteen years old and did not have a driver’s license or learner’s permit, Eric had Clint drive Eric and A.J. in Eric’s truck to a friend’s house to watch movies because he was the most sober of the group. About 11:30 p.m., Clint drove the group back to his house.

After Eric had fallen asleep, at about midnight, Clint drove himself and A.J. to a truck stop in Eric’s truck. Later, at about 1:15 a.m., a short distance from Clint’s home on Taos Road, Clint lost control of the truck and drove into a ravine with the truck flipping over several times. A.J. was thrown from the vehicle and sustained internal injuries that ultimately proved to be fatal.

On August 25, 2005, the Smiths, A.J.’s parents, filed a wrongful death action against Clint, Eric, Clint’s parents, and Eric’s parents in the Circuit Court of Buchanan County on behalf of A.J. They alleged that Clint had been negligent in the operation of Eric’s truck resulting in fatal injuries that caused A.J.’s death. The Smiths also claimed that Eric had negligently driven the truck because both Eric and Clint maintained that they were not in the truck at the time of the accident. The Smiths claimed that Eric’s parents had negligently entrusted the truck to Eric and Clint and that Clint’s parents were negligent in failing to supervise Eric and Clint on the night of the accident.

At the time of the accident, Clint was covered by an automobile insurance policy issued to his parents by Safeco. Safeco denied coverage for the accident and refused to provide him with a defense.

On November 29, 2006, Clint entered into a settlement agreement with the Smiths under § 537.065. Pursuant to that agreement, a consent judgment for $100,000 was entered in favor of each of the Smiths in exchange for the Smiths’ agreement to seek satisfaction of their judgments only from any insurance coverage Clint might have under the Safeco policy.

On April 7, 2007, Safeco filed a petition for declaratory judgment seeking a declaration that its policy did not cover Clint with respect to the judgments obtained by the Smiths. Safeco claimed that no coverage existed because Clint was not driving the truck or, in the alternative, that an exclusion precluded coverage because Clint could not have been operating the truck with a reasonable belief that he had permission to do so because he was fifteen years old and did not have a driver’s license. The Smiths later filed a counterclaim for equitable garnishment against Safeco seeking satisfaction of their judgments against Clint.

Safeco eventually filed a motion for summary judgment which the Smiths opposed. Safeco asserted that Clint and Eric’s deposition testimony conclusively established that Clint did not have permission to drive the truck and could not have reasonably thought he had such permission and that he was, therefore, not covered by the policy. After the matter was argued, on July 23, 2009, the circuit court entered summary judgment in favor of Safeco.

On appeal, the Smiths claim that the motion court erred in granting summary judgment because an issue of material fact remained as to whether Clint could have reasonably believed he had permission to use the truck. The Smiths contend that Clint and Eric’s testimony could be found not credible and that substantial evidence supported a finding that he had implied permission to drive the truck.

Because the trial court makes its decision to grant summary judgment based upon the record submitted and the law, this court need not defer to the trial court’s determination and reviews the grant of summary judgment de novo. Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 533 (Mo.App. W.D.2005). In so doing, we apply the same criteria as the trial court to determine whether summary judgment was properly entered. Bauer v. Farmers Ins. Co., 270 S.W.3d 491, 494 (Mo.App. W.D.2008). Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. “[A] ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). “The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record.” Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177-78 (Mo.App. W.D.2009). “However, facts contained in affidavits or otherwise in support of the party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id. at 178 (internal quotation omitted).

“In general, an insurance policy is a contract to afford protection to an insured and will be interpreted, if reasonably possible, to provide coverage.” Haulers Ins. Co. v. Pounds, 272 S.W.3d 902, 905 (Mo.App. S.D.2008) (internal quotation omitted). “Where an insurer seeks to deny coverage based on a policy exclusion, the burden of establishing that the exclusion applies lies with the insurer.” Id.

The insurance policy at issue excludes coverage for any insured “[ujsing a vehicle without a reasonable belief that [he or she] has permission to do so.” This exclusion is unambiguous. See Marchand ex rel. Marchand v. Safeco Ins. Co., 2 S.W.3d 826, 829-30 (Mo.App. E.D.1999).

In its motion for summary judgment, Safeco claimed that the undisputed facts established that Clint did not believe and could not have reasonably believed that he had permission to drive the truck after Eric went to sleep. Safeco relied upon deposition testimony from Clint stating that he did not drive the truck after Eric went to sleep and did not believe he had permission to do so and Eric’s testimony that he did not give Clint permission to drive the truck without him. Safeco claimed this testimony must be accepted as credible and is conclusive and unassailable on the issue of whether Clint subjectively believed that he had permission to drive the truck.

“The issue of permissive use of an automobile is a question of fact....” Nautilus Ins. Co. v. I-70 Used Cars, Inc., 154 S.W.3d 521, 528 (Mo.App. W.D.2005) (internal quotation omitted). While the Smiths do not, and cannot, offer direct evidence contradicting Clint’s and Eric’s testimony, contrary to Safeco’s assertions, the credibility of this deposition testimony may be challenged through indirect evidence and reasonable inferences drawn therefrom. LeCave v. Hardy, 73 S.W.3d 637, 645 (Mo.App. E.D.2002) (rejecting assertion that deposition testimony of parent and child denying that child had permission to use the vehicle was conclusive of the issue of permission for purposes of summary judgment); Hallquist v. Smith, 189 S.W.3d 173, 176-77 (Mo.App. E.D.2006) (rejecting argument that deposition testimony that permission was expressly denied mandated summary judgment). If the evidence would support an inference of implied permission, summary judgment should be denied. Hallquist, 189 S.W.3d at 176-77.

“Implied permission is permission that is not verbally expressed, but provable by circumstantial evidence.” Nautilus Ins. Co., 154 S.W.3d at 529 (internal quotation omitted). “Implied permission is determined from the facts and circumstances of the case and usually arises from a course of conduct of the parties over a period of time.” Id. (internal quotation omitted). “Permission can be derived from negative, as well as positive, factors.” Universal Underwriters Ins. Co. v. Michael, 781 S.W.2d 119, 123 (Mo.App. W.D.1989). “[A] finding of implied permission may be based on a pattern of conduct, the relationship of the parties or a lack of objection that indicates consent.” Hallquist, 189 S.W.3d at 177. “Implied permission may be the result of a common practice or course of conduct whereby the owner acquiesces in the practice of another operating his automobile.” Nautilus Ins. Co., 154 S.W.3d at 529 (internal quotation omitted). “[T]he absence of an explicit restriction on the use of an automobile is a strong indication that such use is permissible.” Michael, 781 S.W.2d at 123.

Within the deposition testimony and evidence presented in opposition to the motion for summary judgment, there is evidence that Eric had allowed Clint to use his truck on multiple occasions with and without him present. This testimony directly contradict’s Eric’s testimony that the evening of the accident was the first time he had ever allowed Clint to drive his truck. In fact, Ashley Selecman, who was with A.J. and Eric earlier on the evening of the accident, specifically recalled in her statement to the police that A.J. and Eric had been joking about the fact that “every time they go over to Clint’s house Clint gets drunk and steals the truck.” She further noted, “Eric commented about last time [Clint] almost hit a parked car and A.J. laughed.” Jason Selecman, who was also with A.J. and Eric earlier in the evening, provided a statement indicating that A.J. and Eric had been joking around “about how in the past Clint Smith would get drunk and take Eric’s car.” Eric asked Clint to drive earlier in the evening and, after they returned to Clint’s house, the keys were left where Clint had easy access to them. Both Eric and Clint testified in their depositions that Eric had never told Clint he did not have permission to use the truck, and there is no evidence that Eric had ever denied Clint permission to drive it.

Certainly, as noted by Safeco, it is undisputed that Clint was fifteen years old and did not have a driver’s license or even a learner’s permit. It is equally clear from the record and the pattern of conduct evidenced therein, however, that neither boy considered Clint’s lack of a driver’s license to be an impediment to his use of the truck. Thus, Clint’s lack of a license cannot be said to be dispositive in determining whether he reasonably believed he had Eric’s permission to use the truck.

While it is true that the Smiths cannot offer direct evidence contradicting the self-serving deposition testimony of Clint and Eric that Clint did not have permission to drive the truck on the night in question, the indirect evidence and the reasonable inferences therefrom are sufficient for a jury to disbelieve their claims and to find that Clint had permission to drive the truck. See LeCave, 73 S.W.3d at 646. The finder of fact could certainly find that the boys were lying about Clint’s usage of the truck and Erie’s permission to do so because admitting it would be against both of their interests. In light of Clint’s prior repeated use of the truck with and without Eric present, Eric’s awareness of Clint’s dangerous proclivities with respect to driving the truck after consuming alcohol, the placement of the keys where Clint had easy access to them on the night of the accident, and the lack of any express restriction on Clint’s use of the truck, an inference may certainly be drawn that Clint reasonably believed he had implied permission to drive the truck that evening. See Hallquist, 189 S.W.3d at 177; LeCave, 73 S.W.3d at 646. This inference, drawn from the circumstantial evidence, is sufficient to give rise to a dispute as to a material fact and, accordingly, defeat summary judgment.

Safeco also argues that Richard Cox, the registered owner of the truck, is the relevant person to consider when ascertaining whether Clint had permission to drive the truck. They point to Richard Cox’s testimony that he told Eric never to let anyone else use the car, assert that this testimony is uncontroverted, and claim that Eric could not have had the authority to grant permission to Clint.

The issue with regard to coverage under the language of the Safeco policy, however, is whether Clint reasonably believed he had permission to use the truck, not whether he had actual permission from the vehicle’s registered owner. According to his testimony, Clint thought Eric owned the truck, Eric referred to it as his truck, and there is no evidence that Clint was aware that Richard Cox was the registered owner or that Richard Cox had placed any restrictions on Eric’s use of the truck or his authority to allow others to do so. See Haulers Ins. Co., 272 S.W.3d at 907 (noting that there was no evidence that the driver knew the regular operator of the vehicle did not have the permission of the car’s owner to allow others to use the vehicle).

For the foregoing reasons, the trial court’s entry of summary judgment in favor of Safeco is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . The two Smith families involved in this incident are not related.

      . Because many of the people referred to in this case share the same last name, we refer to several of them by their first name to prevent possible confusion. In so doing, we intend no disrespect.

      . Safeco attempts to rely upon the decision in Omaha Property & Casualty Insurance Co. v. Peterson, 865 S.W.2d 789, 790-91 (Mo.App. W.D.1993), in arguing that summary judgment is appropriate. The policy language in that case, however, was significantly different than the case at bar. The policy, issued to the vehicle’s owner, excluded coverage for "any person ... using a vehicle without a reasonable belief that the person is entitled to do so." Id. at 790 (emphasis added). When considering entitlemeht to operate a vehicle, permission is merely one element to be considered, and other factors, like the driver's age and possession of a driver’s license, must be considered. Id. at 791. Here, permission is the sole issue under the policy language.


author: PER CURIAM:

text:
    Clyde LOGAN, Appellant, v. The DUPPS COMPANY, Respondent.
    No. WD 71359.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Paul L. Redfearn, for Appellant.
    Gary Paul, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and ZEL M. FISCHER, Judge.
   ORDER

PER CURIAM:

Clyde Logan appeals from a judgment entered in the Circuit Court of Buchanan County in favor of Respondent, The Dupps Company, in a personal injury action filed by Logan. After a thorough review of the record, we conclude that the judgment is supported by the evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Rezek M. MUSLET, et al., Appellant-Respondent, v. CBS OUTDOORS, INC., Respondent-Appellant.
    Nos. WD 70536, WD 70569.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    James B. Jackson, Lee’s Summit, MO and Joseph R. Borich, Leawood, KS, for appellant.
    Tyson Ketehum, Kansas City, MO, for respondent.

      Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

After a trial apportioning a condemnation award between two parties with interests in the condemned property, both parties appeal the rulings of the trial court. The judgment is affirmed. Rule 84.16(b).


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Byron EWING, Defendant/Appellant.
    No. ED 93355.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Shaun J. Mackelprang, Daniel N. McPherson, Jefferson City, MO, for Plaintiff/Respondent.
    Kent Denzel, Columbia, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Byron Ewing appeals from the trial court’s judgment and sentence entered upon a jury verdict finding him guilty of first-degree statutory rape, first-degree child molestation, and sexual misconduct involving a child. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in denying a motion for mistrial and in controlling closing argument. See State v. Barton, 240 S.W.3d 693, 703 (Mo.banc 2007), and State v. Hamilton, 847 S.W.2d 198, 199 (Mo.App. E.D.1993). 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).


author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri, Respondent, v. David N. BRIGGS, Appellant.
    No. WD 70538.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Laura G. Martin, Kansas City, MO, for Appellant.
    James B. Fransworth, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and ALOK AHUJA, JJ.
   JAMES EDWARD WELSH, Judge.

David N. Briggs appeals the circuit court’s judgment convicting him of one count of murder in the first degree, one count of robbery in the first degree, and two counts of armed criminal action. In his sole point on appeal, Briggs claims that the circuit court plainly erred in denying his request to be represented by private counsel instead of his public defender. We disagree and affirm the circuit court’s judgment.

When Briggs was arraigned on February 25, 2008, the public defender’s office announced that it had found Briggs to be eligible for its services. The following day, his public defender, Jeffrey Gedbaw, filed a motion for discovery on Briggs’s behalf. Gedbaw represented Briggs throughout the pendency of the case, up to and including Briggs’s trial, which began on December 8, 2008. On the first day of trial, Gedbaw represented Briggs in conducting voir dire, and, by the time the first day ended, the jury had been selected.

On the morning of the second day, Briggs informed the court that he wanted to change counsel. The following exchange occurred:

THE COURT: Mr. Gedbaw, you said you have something to take up this morning?
MR. GEDBAW: Yes, your Honor. My client informed me down in the holding cell that his family has retained private counsel for him. I don’t know the specifics or details of that. I think the defendant would like to address the Court regarding that.
THE COURT: Okay. Go ahead, Mr. Briggs.
THE DEFENDANT: Your Honor, I have recently obtained information that could help me out in this case that Jeff has relinquished not — to withhold and not tell me. And I feel that I would have a better chance with a paid attorney in this case. I’m asking for that.
THE COURT: You recently obtained information that what?
THE DEFENDANT: Information that could help me in this case.
THE COURT: I think you are stalling, Mr. Briggs. I tell you what. We have a jury picked after a laborious voir dire. You can talk to Mr. Gedbaw if you have some information that you think will help and let him make the decision on the strategy you use in the case. Okay?
We are going ahead with the trial. I’m not going to stop it so you can hire a private attorney at this point.

Trial proceeded with the public defender representing Briggs. Briggs acknowledges that he did not raise in his motion for new trial the issue of the circuit court’s denial of his request to be represented by private counsel. He, therefore, concedes that he did not preserve this issue for our review but requests that we review his claim for plain error under Rule 30.20.

A review for plain error pursuant to Rule 30.20 involves a two-step analysis. State v. Robinson, 194 S.W.3d 379, 381 (Mo.App.2006). First, we must determine whether or not the claimed error “facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resultedf.]’ ” State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995) (quoting Rule 30.20). We must decide “whether, on the face of the claim, plain error has, in fact, occurred.” State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain errors are those that are evident, obvious and clear.” State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App.2002). In the absence of evident, obvious, and clear error, this court should decline to exercise our discretion to review the claimed error under Rule 30.20. Dudley, 51 S.W.3d at 53. If, however, we find plain error on the face of the claim, in our discretion, we may continue to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Id. Briggs’s claim does not facially establish substantial grounds for believing that he has been a victim of manifest injustice.

Although Briggs has a constitutional right to legal counsel, he does not have an absolute right to be represented by counsel of his own choosing. State v. Jefferies, 504 S.W.2d 6, 7 (Mo.1974). His constitutional right to counsel does not mean that he is entitled to the aid of a particular attorney. State v. Williams, 419 S.W.2d 49, 54 (Mo.1967). His right to be represented by counsel of his own choosing is limited to the extent that it impinges on the public’s right to effective and efficient administration of justice. Jefferies, 504 S.W.2d at 7.

The circuit court has broad discretion in ruling upon a request by the defendant to discharge counsel and to appoint substitute counsel. State v. Rice, 249 S.W.3d 245, 251 (Mo.App.2008). “To warrant substitution of counsel, a defendant must show ‘justifiable dissatisfaction’ with appointed counsel.” State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). “To obtain a change of attorney on the eve of trial, a defendant must show an ‘irreconcilable conflict’ with counsel, which is a total breakdown in communication between the defendant and his attorney.” Rice, 249 S.W.3d at 251. Mere disagreement about strategy does not equate to a total breakdown in communication. Id.

In this case, Briggs did not ask for the change of attorney on the eve of trial but waited until after the completion of voir dire to make his request. In asking for the change of attorney, Briggs merely told the circuit court that he had obtained information that he thought would help him in his case and that his appointed counsel had not “relinquished” or told him about this information. Even had Briggs asked for the change of attorney before the trial began, he did not establish that an ‘irreconcilable conflict’ existed between him and his counsel. The failure of appointed counsel to relinquish or tell Briggs about information that might be helpful to Briggs in his case does not show that “a total breakdown in communication” existed between them.

Briggs contends, however, that the circuit court should have at least made an informal inquiry as to whether substitution was warranted. In support of his contention, Briggs relies on State v. Fields, 636 S.W.2d 76, 80-81 (Mo.App.1982). In Fields, this court’s Eastern District held that the circuit court has an obligation to make at least an informal inquiry to determine whether any incident has occurred to warrant a substitution of attorneys. Id. Contrary to what Briggs contends, the circuit court did make an informal inquiry concerning Briggs’s desire to substitute attorneys. Once it was brought to the circuit court’s attention that Briggs wanted to change attorneys, the circuit court let Briggs make his record and address the court. Briggs told the circuit court that appointed counsel did not “relinquish” or tell Briggs about information that might be helpful to Briggs’s case and that he believed that he “would have a better chance with a paid attorney.” Such an inquiry was sufficient under Fields, given the plain error standard of review.

Although Briggs contends that the circuit court erroneously assumed that Briggs would require a continuance if substitution were allowed, when Briggs made no continuance request (at least explicitly), such an assumption was not unfounded where a mid-stream request to change counsel is made in a first-degree murder case. Moreover, Briggs did not provide the court with any information as to retained counsel’s identity, presence in the courtroom, or availability and preparedness to continue the ongoing trial.

Briggs also claims that the circuit court erred in allowing a public defender to represent him because he was not really indigent and, therefore, did not qualify for the services of the public defender. This argument is without merit.

The record establishes that the public defender’s office determined, at the beginning of the case, that Briggs qualified for its services. Pursuant to section 600.086.3, RSMo 2000, to qualify for the public defender’s services, Briggs had to file with the court an affidavit containing factual information supporting his claim of indi-gency. Thus, it is disingenuous for Briggs to argue that the public defender should not have been representing him because he was not indigent. Indeed, section 600.086.4 says that “[a]ny person who intentionally falsifies such affidavit in order to obtain state public defender system services shall be guilty of a class A misdemeanor.”

Moreover, section 600.086.3 says:

The determination of indigency of any person seeking the services of the state public defender system shall be made by the defender or anyone serving under him at any stage of the proceedings. Upon motion by either party, the court in which the case is pending shall have authority to determine whether the services of the public defender may be utilized by the defendant. Upon the courts finding that the defendant is not indigent, the public defender shall no longer represent the defendant.

According to this section, the public defender’s office, not the circuit court, is responsible for determining whether a defendant financially qualifies for its services. If Briggs managed to gather enough resources to disqualify himself from the public defender’s services, it was incumbent upon the public defender to make that determination and for either the public defender or Briggs to file a motion with the circuit court to determine whether the services of the public defender were needed. Neither Briggs nor the public defender filed such a motion. Indeed, the public defender did not even file a motion seeking to withdraw from the case.

Briggs claims that to allow the public defender’s office to represent a non-indigent client violates “the spirit of the entire Chapter 600.” But, nothing in Chapter 600 suggests that appointing an attorney to a non-indigent defendant is reversible error. The spirit (and purpose) of Chapter 600 is to give effect to the Sixth Amendment guarantee that all criminal defendants are entitled to the assistance of counsel. If occasionally a non-indigent defendant receives appointed counsel even though he technically does not qualify, the spirit of the law — to ensure that every defendant is represented — is not undermined in the least.

The circuit court did not plainly err in permitting the public defender to represent Briggs or in refusing Briggs’s mid-trial request to bring in new counsel. We, therefore, affirm the circuit court’s judgment.

All concur.

      . Briggs cites United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), in support of his contention that his constitutional right to counsel includes “the right of a defendant who does not require appointed counsel to choose who will represent him." In Gonzalez-Lopez, however, the defendant was not attempting to change attorneys after the trial began. Indeed, the Gonzalez-Lopez court specifically stated, "Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice.” Id. at 151, 126 S.Ct. 2557. The court recognized that a trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar.” Id. at 152, 126 S.Ct. 2557 (citations omitted).

      . After hearing Briggs’s explanation, the circuit court viewed it with skepticism and believed that Briggs was merely stalling. We discern no evident, obvious, and clear error with the circuit court’s handling of Briggs's request for substituting attorneys.


text:
    STATE of Missouri, Respondent, v. Jeffrey L. STARNES, Appellant.
    No. WD 69573.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Craig A. Johnston, Columbia, MO, for appellant.

      Shaun L. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

After a jury trial, Jeffrey Starnes was convicted of driving while intoxicated (DWI). Based on this conviction, Starnes was sentenced by the trial court as a “chronic offender” to ten years in the Missouri Department of Corrections. Because the trial court failed to hear evidence and make a finding that Starnes had four or more intoxicated related offenses prior to the case being submitted to the jury in violation of Section 577.023, we vacate the sentence and remand for resen-tencing.

I. Factual Background

Jeffrey Starnes was charged in the Circuit Court of Clay County with DWI for events occurring on July 27, 2007, in violation of § 577.010. The substitute information alleged that Starnes was a “chronic offender” under § 577.023 because he had been convicted of four or more prior “intoxication-related traffic offenses.”

Beginning on January 14, 2008, the case was tried before a jury. It is not disputed that the State introduced conclusive evidence of three of Starnes’s prior intoxication-related traffic offenses during its case in chief, but outside of the hearing of the jury.

The fourth intoxication-related traffic offense was a conviction from Kansas City Municipal Court in 1997. The evidence was unclear if this was a conviction for DWI or Driving with an Excessive Blood Alcohol Content (BAC). The trial court also noted that, among other things, the relevant exhibit (Exhibit 4) failed to prove that Starnes was represented by counsel or waived the right to counsel in writing when found guilty of the 1997 municipal offense. Because this evidentiary hearing took place during the State’s case in chief, the trial court ruled that the State would be allowed further time during the course of the trial to rectify these evidentiary problems.

After the close of all evidence and immediately prior to closing arguments, the trial court asked counsel whether there were any other issues that needed to be discussed before the case was submitted to the jury. The State reminded the trial court of the issue pertaining to “the priors,” but the Court stated that “that’s not a jury issue.”

The jury returned a verdict of guilty as charged.

After this finding of guilt by the jury, the trial court immediately held a hearing pertaining to the State’s evidence on this fourth prior conviction. The trial court further ruled that “the proof and argument’s still open to the fourth intoxication-related offense, and the one you have pleaded that in my view you haven’t proven is the one that starts out, on or about December 15th, 1997.” (Emphasis added.)

The trial court noted on the record that Exhibit 4 contained evidence not only pertaining to the 12/15/97 intoxication-related traffic offense, but it also contained evidence pertaining to another charge Starnes had allegedly been found guilty of in Kansas City Municipal Court for driving while intoxicated on September 5, 1996. In an attempt to clarify its rulings on this issue, the trial court stated that “we have to break State’s Exhibit 4 up into two pieces” so that the evidence pertaining to the 1996 municipal offense was distinct and different from the 1997 offense.

Specifically, a new exhibit was created (Exhibit 8) and admitted that contained the evidence pertaining to the 12/15/97 conviction. The evidence pertaining to the previous conviction, stemming from the 1996 incident, remained Exhibit 4 but was no longer considered by the trial court because the 1996 offense was not pled in the First Amended Information.

Starnes’s trial counsel argued at the hearing that Exhibit 8 did not demonstrate beyond a reasonable doubt that Starnes was represented by counsel when found guilty by the municipal court on December 15, 1997. Starnes further argued that while Exhibit 8 demonstrated that Starnes was represented by counsel in this matter at some time, the State could not prove that counsel had represented Starnes when he was found guilty by the municipal court because handwritten notes on Exhibit 8 demonstrated that counsel was granted leave to withdraw on September 29, 1997.

At the end of the hearing on January 15, 2008, the trial court did not make a ruling as to whether Starnes was a chronic offender; instead, the trial court continued the matter to allow the State to gather additional evidence on the issue of Starnes’s conviction in municipal court on December 15, 1997. Prior to continuing the hearing, Starnes’s trial counsel stated that he would not object to the State “trying to gather some more information” pertaining to this fourth conviction. Finally, the trial court ruled that it was not going “to file the verdict as of today since we don’t know the level of the offense and evidence is still coming in on judge stuff” and that the Court was “not accepting the judgment today.”

On January 16, 2008, the trial court entered an order that stated, in part, the following:

Because the proof is not complete on issues to be determined by the court, i.e., whether the defendant has 8 or 4 prior intoxication related offenses, a determination that will determine whether defendant is guilty of a Class C or a Class B felony, the verdict is not filed. The defendant shall have 15 additional days within which to file a motion for new trial or, other appropriate relief. The date on which defendant’s 25 days within which to file his motion will not begin to run until the court enters an order on the remaining issue.

On January 25, 2008, the trial court held another evidentiary hearing on this issue. At the beginning of the hearing, the trial court allowed the State to submit into evidence Exhibit 101. Exhibit 101 was similar to Exhibit 8 in that they both contained evidentiary documentation that attempted to establish that Starnes was found guilty of BAC on December 15, 1997; however, Exhibit 101 provided additional documentation that a second attorney had entered his appearance in this case at an unknown time, possibly before the other attorney had withdrawn. The State argued that from this second entry of appearance the trial court could reasonably infer that Starnes was represented by an attorney at the 12/15/1997 guilty plea hearing.

On February 1, 2008, the trial court held yet another evidentiary hearing on this issue, wherein Starnes called two witnesses to testify regarding whether Starnes was represented at the 12/15/1997 hearing. Bernard Schneider, the Court Administrator of the Kansas City Municipal Court, testified that in his opinion in reviewing the relevant court records, Starnes was represented by counsel when pleading guilty. Starnes testified at the hearing that he was not represented by counsel when he pled guilty.

At the end of this evidentiary hearing, the trial court concluded that it was “firmly convinced that the defendant was represented by counsel when he entered his plea to reduced charge on December 15th, 1997,” and that therefore Starnes would be “sentenced on a Class B Felony” as a chronic offender.

On February 26, 2008 the Defendant filed his Motion for New Trial.

On April 3, 2008, the trial court sentenced Starnes to ten years in the Missouri Department of Corrections. Starnes now appeals.

II. Analysis

In his sole Point Relied On, Starnes argues that the trial court erred “in finding Appellant to be a chronic DWI offender under Section 577.028” because the State failed to prove beyond a reasonable doubt that Starnes was a chronic offender prior to the case being submitted to the jury as required by Section 577.023.

Section 577.023.1(2)(a) states that a “chronic offender” is a person “who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses,” and Section 577.023.5 provides that any individual who is proven to be “a chronic offender shall be guilty of a class B felony.” It is not disputed on appeal that the State timely proved and the trial court timely found, beyond a reasonable doubt, that Starnes had three previous convictions for intoxication-related traffic offenses, meeting the requirements for a conviction as a Class C Felony, Aggravated Offender under Section 577.023. Solely in dispute is whether the State properly and timely proved, and the trial court properly and timely found, the fourth such conviction to exist beyond a reasonable doubt.

Section 577.023.8 specifies that, “[i]n a jury trial, the facts [establishing chronic offender status] shall be pleaded, established and found prior to submission to the jury outside of its hearing.” (Emphasis added.) Section 577.023.16 similarly provides that “[ejvidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury” and “[a]fter hearing the evidence, the court shall enter its findings thereon.” (Emphasis added.)

The Supreme Court of Missouri has repeatedly made it clear that the statutory timing requirements for the State to present evidence to the trial court of prior, aggravating offenses are mandatory and not discretionary.

In State v. Severe, the Supreme Court of Missouri held that “[w]hen presenting evidence against a defendant charged with a crime, the language of the statute is of paramount importance.” 307 S.W.3d 640, 644 (Mo. banc 2010). In Severe, defendant was convicted of driving while intoxicated after a jury trial, and the trial court sentenced defendant as a “persistent offender” in light of the fact that the State had proven that defendant had “two prior alcohol related-convictions.” Id. at 641. While the appeal of her conviction was pending, the Supreme Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that a municipal DWI plea that resulted in a suspended imposition of sentence could not be used to enhance the offense to a class D felony. Id.

Because one of the defendant’s prior convictions was for a municipal DWI guilty plea that resulted in a suspended imposition of sentence, the Supreme Court of Missouri reversed the trial court’s judgment and remanded for resentencing based on its conclusion that “[bjeing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice.” Id. In so holding, the Court expressly rejected the State’s argument that it should be provided an opportunity on remand to prove the existence of other prior intoxication related offenses because the applicable statute provides “that % a jury trial, the facts shall be pleaded, established and found prior to submission to the jury.’” Id. at 644 (quoting 558.021.2, emphasis added by the Court).

In Severe, the Missouri Supreme Court relied heavily on its previous holdings in State v. Emery, 95 S.W.3d 98 (Mo. banc 2003), and State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), which dealt squarely with the issue of when prior convictions must be pled and proven to the trial court pursuant to Section 558.021. “Section 577.023 follows the same procedures as Section 558.021 to establish persistent DWI offender status.” State v. Rose, 169 S.W.3d 132, 136-37 (Mo.App. E.D.2005).

In Emery, the Supreme Court of Missouri concluded that the trial court had erred in sentencing the defendant as a prior and persistent offender because at trial the State failed to present evidence to prove the existence of the alleged prior offenses. 95 S.W.3d at 101. Because a remand allowing the State to present additional evidence of the defendant’s prior eonvictions “would require the sentencing court to commit error by violating” the timing requirement of the statute, the Supreme Court in Emery remanded “for re-sentencing without regard to prior or persistent offender status.” Id. at 100, 102. In refusing to allow the State an opportunity to present further evidence of the prior convictions on remand, the Supreme Court also relied on the fact that the genesis of the problem was “ ‘prosecutorial laxity ” in failing “to prove prior convictions ‘in conformity with applicable statutory requirements.’ ” Id. at 101 (quoting State v. Cullen, 39 S.W.3d 899, 906 (Mo.App. E.D.2001)).

The Supreme Court of Missouri in Teer expanded upon why the statutory language in question “imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury.” 275 S.W.3d at 261 (emphasis added). In Teer, during trial the State moved to amend the information in order to charge the defendant as a prior offender due to a previous stealing conviction, and the trial court “sustained this motion after the case was submitted to the jury but before the verdict.” Id. at 260 (emphasis added). In reversing the defendant’s conviction on appeal, the Missouri Supreme Court held that the trial court’s failure to make the relevant ruling until after the case was submitted to the jury was in error for the following reasons:

Section 558.021.2 unequivocally provides that the prior offender status “shall” be pleaded and proven prior to the case being submitted to the jury. The word “shall” generally prescribes a mandatory duty....
As such, section 558.021.2 implicates a defendant’s liberty and, like other criminal statutes, should not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within its terms. This interpretive rule applies to both the procedural and substantive aspects of criminal statutes and requires the statute to be construed strictly against the state and in favor of the defendant.
The plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury. When the plain language of section 558.021.2 is construed in favor of the defendant, the absence of a penalty provision does not necessarily mean that compliance with the statute is merely directory. There is no dispute that Teer’s status as a prior offender was not plead and proven until after the case was submitted to the jury. This procedure violated the plain language of section 558.021.2.

275 S.W.3d at 261-62 (citation omitted).

Teer, Emery, and Severe all require that this matter be vacated and remanded for re-sentencing as an “aggravated offender” because the trial court erred in hearing evidence and in making findings regarding Starnes’s alleged chronic offender status after the case was submitted to the jury, in direct violation of the timing requirements of Section 577.028.

The State’s attempts to distinguish the aforementioned case law on appeal are unavailing. To begin with, the State cites to statutory language other than the language this Court is required to interpret in order to support its argument that “[sjince the enactment of bifurcated proceedings, the phrase ‘prior to submission to the jury [in section 577.023] can mean one of two things: prior to submission of the case for a guilt determination, or prior to the submission of the case for a punishment recommendation.” The State argues that the applicable language of Section 577.023.8, which it concedes has not changed since it first became law in 1982, somehow took on a new meaning when the legislature adopted bifurcated trial proceedings pursuant to Section 557.036. But the State fails to cite any authority to support this proposition and for good reason because the “ ‘fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.’ ” Inter City Fire Prot. Dist. v. DePung, 283 S.W.3d 277, 279 (Mo.App. W.D.2009) (quoting State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 306 (Mo.App. E.D.1996)). Here, the Missouri Supreme Court has made clear on numerous occasions that the language of the statute in Section 577.023, by itself, is clear and unambiguous, and thus not open to interpretation from other sources.

Here, the State had ample opportunity to prove, pursuant to the statutorily required timing requirements, that Starnes was a chronic offender. The trial court made an express finding that the State failed to make a showing beyond a reasonable doubt of the fourth alcohol related offense prior to the case being submitted to the jury. Accordingly, the instant case provides an even more compelling case for vacation of the sentence than the Supreme Court of Missouri’s most recent holding in this area of the law in Severe because, unlike in Severe, the State could have prevented the evidentiary problem that is the subject of this appeal through proper presentation of the relevant evidence at trial.

The State further argues that Starnes’s claim on appeal should be denied because the evidence submitted by the State in its case in chief was sufficient to prove that Starnes had four prior intoxication related traffic offenses. The State ignores the fact that the trial court made an express ruling that the evidence presented in the State’s case in chief was, in fact, insufficient in this regard. Specifically, after the case was submitted to the jury, the trial court found that “the one you have pleaded that in my view you haven’t proven is the one that starts out, on or about December 15th, 1997.” Accordingly, we will defer to the factual determination of the trial court and will not re-weigh the evidence in this regard on appeal.

The State further argues on appeal that Starnes was not prejudiced by the trial court’s error in this regard based on the assumption that Starnes is “in fact” a chronic offender and “that defendants generally cannot establish prejudice when they are, in fact, prior offenders and not entitled to jury sentencing.” But this argument was rejected by the Supreme Court of Missouri in Severe.

In Severe, it was undisputed that, even when excluding the municipal SIS conviction pursuant to Turner, the defendant was still a prior offender who was not entitled to jury sentencing. Severe, 307 S.W.3d at 641-43. Nonetheless, the Supreme Court of Missouri reversed and re-Imanded for re-sentencing on the lesser conviction and held that the State was not entitled to adduce additional evidence of the defendant’s other priors because to do Iso would violate the timing requirements Ipf the statute. Id. at 644-46. Stated another way, the Court held that whether the ■State could prove that the defendant was a persistent offender was irrelevant because the State failed to adduce such proof at the proper time under the statute. Id.

For the reasons discussed at length previously, the trial court erred when it sentenced Starnes as a “chronic offender” instead of as an “aggravated offender” in light of the fact that the State only proved (and the trial court only found) three prior convictions prior to the case being submitted to the jury. Moreover, this error was prejudicial because Starnes was sentenced to a ten year term of imprisonment, which is a term greater than the maximum seven year sentence allowable as a matter of law pursuant to Section 577.023.4 for the Class C felony enhanced sentence for an “aggravated offender.” Severe, 307 S.W.3d at 644-46; Teer, 275 S.W.3d at 262.

Finally, notwithstanding the fact that the trial court so erred in this regard, the State suggests that this Court should not grant relief to Starnes pursuant to plain error review. We disagree.

There can be no doubt that this Court is constrained to plain error review because Starnes failed to timely file a motion for new trial. Rule 29.11(b) provides, in relevant part, that a “motion for new trial ... shall be filed within fifteen days after the return of the verdict” and that the court “may extend the time for filing of such motions for one additional period not to exceed ten days.”

In this case, the trial court attempted to extend the period for which Starnes could file his motion for new trial beyond that permitted by Rule 29.11. The jury returned its guilty verdict on January 15, 2008, thus beginning the time for which Starnes had to file his motion for new trial. Nonetheless, on January 16, 2008, the trial court entered an order that Starnes’s time to file a motion for new trial would not begin until “the court enters an order on the remaining issue” regarding whether it would sentence Starnes on the Class C or B felony.

Despite the trial court’s express warning to Starnes that the Court may not have jurisdiction to so expand the time to file his motion for new trial, Starnes apparently relied on this order in waiting until February 26, 2008, to file his motion for new trial. We do not condone Starnes’s failure to timely file his motion for new trial because only he can ensure that his claims are properly preserved for review by this Court. However, we note that the failure to timely file a motion for new trial does not preclude this Court’s review of any alleged error. State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004) (“In this case, the record clearly indicates Defendant was sentenced improperly, resulting in a manifest injustice and a miscarriage of justice. Therefore, we exercise our discretion and review for plain error [notwithstanding the fact that Defendant failed to timely file his motion for new trial].”)

Plain error review requires this Court to find a “manifest injustice or a miscarriage of justice” pursuant to Rule 30.20. The Supreme Court of Missouri just recently held in Severe that “[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice.” Severe, 307 S.W.3d at 642. “ ‘Where it appears that a defendant has been improperly sentenced as a prior or persistent offender, plain error review is appropriate.’ ” State v. Manley, 223 S.W.3d 887, 892 (Mo.App. W.D.2007) (quoting State v. Stephens, 88 S.W.3d 876, 885 (Mo.App. W.D.2002)). “A defendant cannot by waiver confer jurisdiction on the court to impose a sentence not authorized by law.” State v. Prell, 35 S.W.3d 447, 450 (Mo.App. W.D.2000).

Because the trial court erred when sentencing Starnes as a “chronic offender” instead of as an “aggravated offender,” Starnes was sentenced to a punishment greater than the maximum allowable sentence as a matter of law. Thus, this constituted plain error resulting in manifest injustice. Severe, 307 S.W.3d at 641-43.

Finally, we reject the State’s argument that Starnes “waived any challenge to the timing of the court’s determination of Appellant’s chronic offender status.” The State insinuates that this waiver by Starnes took place on two separate occasions, and accordingly each one will be analyzed separately.

To begin with, the State points to the fact that Starnes did not object during the following colloquy that transpired between the Court and the State immediately prior to the case being submitted to the jury:

The Court: It’s time to invite the jury in.... Anything else we need to talk about before the jury comes in?
The State: Judge, the only other issue is the priors.
The Court: Well, that’s not a jury issue.
The State: No, not a jury issue.
The Court: The jury’s waiting. Let’s get the jury issues in their hands, and then we can talk about Court issues as you like.

(Emphasis added.)

Starnes could not have been expected to make a specific objection based on Section 577.023 to the above comments because all the Court stated was that the State would be free to “talk” about “Court issues.” The trial court was correct in its assertion that the issue of prior criminal convictions was not a “jury issue,” and thus Starnes could not be expected to object to this truism. In response to the State’s argument that Starnes had waived this issue by not objecting, even the trial court later acknowledged that it did not consider Starnes’s silence to constitute a waiver of this issue when it made the following statement: “Well, the record will be plain enough that I was not relying on the agreement of the parties in doing what I did.” As discussed previously, the State went well beyond talking about the issue of Starnes’s prior conviction, and the trial court actually heard further evidence on this issue on which the Court made the ultimate finding that Starnes was a chronic offender.

In its last attempt to demonstrate that Starnes is not entitled to plain error review, the State argues that Starnes waived this issue after the jury had returned its verdict and the reversible error had already been committed. Specifically, after the jury returned its guilty verdict, the trial court held a hearing on the issue of Starnes’s alleged fourth prior conviction. At that hearing, the Court expressly found that its previous findings were insufficient to sentence Starnes as a chronic offender. For the reasons explained previously, there can be no doubt that the trial court then erred by acting upon the erroneous belief that “proof and argument’s still open as to the fourth intoxication-related offense.”

The State is correct that Starnes’s trial counsel later stated, after the jury returned its verdict, that he would not object to the State “trying to gather some more information” as it pertained to Starnes’s fourth municipal conviction and setting it over for a hearing for that purpose. But we do not believe that this statement by trial counsel should preclude this Court from reviewing for plain error because had Starnes’s trial counsel objected, the trial court would not have been able to take corrective action in light of the fact that the error in question was irreconcilable pursuant to Section 577.023. The sanction of waiver only takes on meaning when a “timely objection would have allowed the trial court to take corrective action,” and here it would have been impossible for Starnes to “sandbag” the trial court on the issue in light of all the circumstances. State v. Dueker, 990 S.W.2d 670, 682 (Mo.App. E.D.1999). When Starnes’s trial counsel came back for the subsequent hearing and immediately objected to the State introducing further evidence in this regard, the State and trial court were in no worse of a position than they were after the case was submitted to the jury.

We must also note that the case law that the State cites simply does not support its argument that Starnes somehow waived this issue. For example, the State quotes Emery, 95 S.W.3d at 103, for the proposition that “because the defendant ‘chose to sit on his statutory right,’ ” “he waived it,” but this principle was directed solely as to whether the defendant in Emery waived his right to jury sentencing which is not at issue here. In fact, Emery actually supports the conclusion that Starnes had no duty to object to the State’s failure to prove the fourth conviction prior to the submission of the case to the jury because in Emery the defendant did not so object at trial. Id. at 102. Yet the Supreme Court of Missouri still “remanded the matter for re-sentencing without regard to prior or persistent offender status” in light of the fact that the State adduced no evidence at trial of the defendant’s relevant prior convictions. Id. at 100.

Finally, the State attempts to analogize the instant case to State v. Anderson, 294 S.W.3d 96 (Mo.App. E.D.2009). It should be noted that Anderson was decided prior to the Supreme Court’s decision in Severe and the outcome of Anderson may have been different following the Supreme Court’s later holding. In addition, Anderson is different from the instant case for at least two reasons. In Anderson, during trial the defendant stipulated that he had prior “pleas of guilty” during which he was represented by counsel, and based on these stipulations the trial court made a finding that he was a prior offender. Id. at 99. Here, Starnes never stipulated that he had four prior convictions; to the contrary, once the evidentiary issue was raised by the trial court, Starnes never conceded that the State proved beyond a reasonable doubt that he was represented by counsel or waived that right as it pertains to his 12/15/97 guilty plea.

Moreover, after the case was submitted to the jury in Anderson, the trial court made an additional finding that the defendant was a persistent offender, and in doing so the trial court expressly advised the defendant that such a finding could well violate the Supreme Court of Missouri’s holding regarding “the timing of this finding ... under State v. Emery.” Id. at 99. The defendant expressly stated that he did not object, and this led the Eastern District to conclude as follows:

Here, when the trial court proposed to take judicial notice of a file and to make a finding that Anderson was a persistent offender after the case had been submitted to the jury, it asked Anderson whether he had an objection. Anderson responded that he did not, and it should be noted that Anderson was fully aware of the trial court’s error because the trial court pointed it out to him and still he chose to acquiesce in the trial court’s conduct. As a result, Anderson affirmatively waived review of this claim of error.

Id. at 100.

For reasons already expanded upon at length, Anderson does not govern the resolution of the instant dispute.

Under the guidance of Severe and the Supreme Court of Missouri’s other relevant precedents, we conclude that a limited remand is required for the trial court to re-sentence Starnes as an “aggravated offender” because “[bjeing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice.” Severe, 807 S.W.3d at 642.

Point granted.

Conclusion

Because Starnes was improperly sentenced as a chronic offender to ten years imprisonment, his sentence is hereby vacated and the cause is remanded with instructions that Starnes be resentenced as an aggravated offender.

All concur.

      . All statutory citations are to RSMo 2000 as updated through the 2007 Cumulative Supplement, unless otherwise indicated.

      . In its original information the State alleged that it was a conviction for DWI. On the first day of trial the State filed, without objection, a substitute information alleging that it was a conviction for BAC.

      . The majority in Severe analyzes section 558.021.2 as the relevant statute, when in fact as the dissent correctly notes "this case deals with 577.023." 307 S.W.3d at 642 n. 4 (Breckenridge, J., dissenting). Indeed, the distinction between these two statutes is irrelevant for the purposes of this analysis because "[b]oth statutes contain identical language that requires presentation of such evidence prior to the case's submission to the jury." Id.

      . All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated.

      . In concluding that a manifest injustice occurred, we note that the trial court's error in sentencing Starnes as a chronic offender not only sentenced him to a term of imprisonment longer than that permitted by law, it also had other collateral consequences because 577.023.6 provides that "[n]o chronic offender shall be eligible for parole or probation until he or she has served a minimum of two years imprisonment.”