author: PER CURIAM.

text:
    In re the ESTATE of Lula DeGRAFF, Deceased.
    No. 28574.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Morris B. Kessler, St. Louis, for appellant.
    Edgar M. Eagan, Jefferson City, Executor, for the Estate.
    Granville E. Collins, Fulton, Atty., for William B. Boyd.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   PER CURIAM.

The devisees under the Last Will and Testament of Lula DeGraff, deceased, have appealed from an order of the Circuit Court of Callaway County, Missouri, denying their motion to remove Edgar M. Eagan, executor of said estate, and in remanding the “cause” to the Probate Court of Callaway County for further proceedings.

Letters testamentary were issued to Edgar M. Eagan by the Probate Court of Callaway County. While the estate was in the course of being probated differences arose between the executor and the devi-sees (hereinafter appellants) which culminated in the filing of a motion to remove the executor. In connection with the motion, and prior to its being heard and ruled on, the devisees filed objections in writing, verified by affidavit, asserting that Patrick Horner, Probate Judge of Callaway County, was “biased and prejudiced” against the devisees in said matter. In a circuitous and bizarre manner which virtually defies credulity, the motion to remove the executor was ultimately heard and adjudicated by the Circuit Court of Callaway County as though properly certified there pursuant to Section 472.060, RSMo 1969.

Parenthetically, failure of opposing counsel to objectively view certain differences that arose and to turn to prevailing law and applicable rules for their pursuit and solution has unduly clouded this case at all levels. As a consequence, specious and nonexistent issues have been injected, genuine issues have been obfuscated, and noncompliance with applicable rules of appellate procedure has occurred in certain instances.

This court was sorely tempted to dismiss this appeal sua sponte because appellants’ brief fails to comply with Rule 84.04. Instances of noncompliance are so numerous as to rule out inadvertency as a cause and to suggest total unfamiliarity with Rule 84.04. For example, subsection (b) of Rule 84.04 governing jurisdictional statements in appellant briefs provides, in part, as follows: “(b) Jurisdictional Statement. Bare recitals that jurisdiction is invoked ‘on the ground that the construction of the Constitution of the United States or of this state is involved’ or similar statements or conclusions are insufficient as jurisdictional statements. The jurisdictional statement shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, Section 3, of the Constitution whereon jurisdiction is sought to be predicated . . ” The j'urisdictional statement in appellants’ brief reads as follows: “JURISDICTIONAL STATEMENT This appeal is within the general appellate jurisdiction of the Missouri Court of Appeals, Article V, Section 3, Constitution of Missouri, as amended 1970, and this matter is within the jurisdictional territory of the Kansas City Court of Appeals by virtue of Section 477.070 Revised Statutes of Missouri, 1969.” Measured by subsection (b) of Rule 84.04, supra, appellants’ jurisdictional statement is indisputably insufficient from every point of view. It fatally omits advising this court as to the type of civil action involved or the nature of the “judgment” from which the appeal is taken. In short, it fails to “set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, Section 3, of the Constitution whereon jurisdiction is sought to be predicated.”

By way of further example, subsection (c) of Rule 84.04 governing statements of fact in appellant briefs provides, in part, that the “statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” The statement of facts in appellants’ brief offends the requirements of subsection (c) of Rule 84.04 in several respects. Instead of constituting “a fair and concise statement of the facts”, it gives a distorted and unbalanced view of the evidence presented below by excluding relevant facts favorable to the opposing party. Statements of fact which favorably slant the evidence by similar processes of exclusion have been held not to comply with subsection (c) of Rule 84.04, supra. State ex rel. State Highway Comm. v. Nickerson, 539 S.W.2d 771, 773 (Mo.App.1976); Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 885 (Mo.App.1974); Doehler v. Village of Cool Valley, 498 S.W.2d 621, 622 (Mo.App.1973); and Geiler v. Boyer, 483 S.W.2d 773, 774 (Mo.App.1972). Moreover, statements of a purely argumentative nature are interspersed throughout appellants’ statement of facts. Doing so impairs the purpose which the statement of facts is designed to serve and is expressly forbidden by subsection (c) of Rule 84.04, supra.

Finally, subsection (d) of Rule 84.04 governing “Points Relied On” in appellant briefs requires that they “shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . ”, and cautions that “[sjetting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.” Five points are relied on by appellants in their brief. Three of the five points fail to comply with subsection (d) of Rule 84.04, supra, in that they either fail to state “wherein and why” certain actions or rulings of the trial court are claimed to be erroneous or they constitute “abstract statements of law” devoid of any showing of any relationship to any particular “action or ruling” of the trial court.

Numerous appellate opinions have meticulously pointed out the reasons for Rule 84.04, objectively advocated the necessity for compliance, and soberly pointed out the consequences of noncompliance. Nevertheless, the message heralded by such appellate opinions continues to fall on deaf ears in certain quarters, and the disposition of cases on appeal is frequently impeded by those who refuse to acquaint themselves and comply with Rule 84.04. The reason this court has stopped short of dismissing the instant appeal out of hand for multiple infractions of Rule 84.04, supra, lies in the fact that two of the five points relied on by appellants may be expeditiously disposed of, in spite of the infirm jurisdictional statement and statement of facts, without working an injustice on opposing counsel or unduly burdening this court.

The two points deemed to be in compliance with subsection (d) of Rule 84.04, supra, although far from being exemplars, appropriately lend themselves to being partially paraphrased and restated as three separate points: (1) the trial court erred “in not acting to exclude” certain “bills” of William B. Boyd and Granville E. Collins, because they were never filed as “claims” against decedent’s estate; (2) the trial court erred “by including Boyd and Collins as parties” during the trial because no “claims” were ever filed by them against decedent’s estate; and (3) the trial court erred in remanding the “cause” to the Probate Court of Callaway County for “further proceedings” because certification of the motion to remove the executor to the Circuit Court of Callaway County divested the Probate Court of Callaway County of any further jurisdiction over the continuing administration of decedent’s estate.

It is necessary to set forth certain background facts in order to place the first of the restated points in proper perspective. Prior to decedent’s death she was adjudicated incompetent and William B. Boyd was appointed guardian of her person and estate. Granville E. Collins served as attorney for Boyd in administering the guardianship estate. Although final settlement of the guardianship estate was effected some time ago, no payment or compensation was ever received by Boyd and Collins for services rendered the guardianship estate. Nor have any claims for such services ever been filed against the estate of Lula DeGraff, deceased. At best, it appears that payment for such services by the executor was the subject of certain conversations between Boyd and Collins on the one hand and Edgar M. Eagan, executor of the estate of Lula DeGraff, deceased, on the other hand, and that “bills” or “statements for services” were prepared and submitted by Boyd and Collins to the executor. However, as previously noted, no claims have ever been filed by Boyd and Collins against decedent’s estate, and the amounts claimed owing to them have never been approved or paid during the course of administering the estate of Lula DeGraff, deceased. It is axiomatic that the trial court cannot be charged with error for failing to “exclude” certain purported “bills” which were never filed or allowed as claims against decedent’s estate. Appellants’ efforts to do so under the circumstances necessarily fails for lack of a justiciable issue. If any “bills” or “statements for services” are subsequently filed as claims against decedent’s estate, or otherwise asserted, and unlawfully or imper-missibly allowed or approved by the Probate Court of Callaway County and paid by the executor out of the assets of decedent’s estate, appropriate remedies for redress exist. However, presentment and resolution of such matters as a purely hypothetical basis is inappropriate.

The next restated point charges that the trial court erred “by including Boyd and Collins as parties” during the trial because no claims were ever filed by them. Absent being served with any pleadings, or seeking and obtaining an order permitting them to intervene, Boyd and Collins informally appeared at the hearing below and were permitted to offer evidence, cross-examine witnesses and otherwise participate as if they were parties. Appellants acquiesced in this unusual procedure at the trial level and at no time objected thereto. This being the case, appellants are precluded from charging that the trial court erred “by including Boyd and Collins as parties”. Tersely put, no review of appeal lies for a legal proposition never presented to or expressly rule on by the trial court. Ahlgren v. Colvin-Weber Realty & Invest. Co., Inc., 507 S.W.2d 686, 688 (Mo.App.1974).

Appellants contend by way of the final restated point that certification of the motion to remove the executor to the Circuit Court of Callaway County for hearing and determination permanently lodged decedent’s estate in the Circuit Court of Calla-way County in its entirety and vested the Circuit Court of Callaway County with exclusive jurisdiction over all remaining matters touching the administration of decedent’s estate. The certification of matters appertaining to the administration of estates by probate courts to circuit courts pursuant to Section 472.060, supra, in the context posed by the facts of this case, has seldom been encountered at the appellate level. The jurisdictional consequences of certification under circumstances comparable to those presented in the instant case does however appear to have been summed up in State ex rel. Morris v. Montgomery, 160 Mo.App. 724, 142 S.W. 474, 475 (1912): “The only thing certified may be upon one account alone, as was the case in Keele v. Keele, 118 Mo.App. 262, 94 S.W. 775, while the general administration of the estate remains with the probate court. In that event, the ‘case’ certified to the other [circuit] court for trial is the one question of the account, and the only thing tried in that court is the one account, while, at the same time, the case or cause, as applied to the entire matter, remains in the probate court.” Section 472.060, supra, prompted the following observation by Maus, Almon H., in Missouri Practice, Vol. 3, Probate Law and Practice, Sec. 488, p. 441: “[T]he disqualification of the judge to sit in respect to one matter in the administration of an estate does not remove the entire administration of that estate to the circuit court. Only the matter which is the subject of the affidavit is removed.” Maus cites State ex rel. Morris v. Montgomery, supra, as authority for the aforementioned statement. Appellants’ motion to remove the executor was the only matter concerning decedent’s estate immediately pending before the Probate Judge of Callaway County at the time of his disqualification. Hence, it was the only delineated matter subject to being certified to the Circuit Court of Callaway County. Viewed in proper context, the certification proceeding did not remove administration of decedent’s estate for all purposes to the Circuit Court of Callaway County, and the latter court, after denying appellants’ motion to remove the executor, did not err in remanding the “cause” to the Probate Court of Callaway County for the purpose of completing administration of the estate of decedent. State ex rel. Morris v. Montgomery, supra; and Maus, Missouri Practice, supra.

Judgment affirmed.

All concur.

      . “472.060 Disqualification of judge

      No judge of probate shall sit in a case in which he is interested, or in which he is biased or prejudiced against any interested party, or in which he has been counsel or a material witness, or when he is related to either party, or in the determination of any cause or proceeding in the administration and settlement of any estate of which he has been executor, administrator or guardian, when any party in interest objects in writing, verified by affidavit; and when the objections are made, the cause shall be certified to the circuit court, which shall hear and determine same; and the clerk of the circuit court shall deliver to the probate court a full and complete transcript of the judgment, order or decree made in the cause, which shall be kept with the papers in said office pertaining to said cause.”


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    George F. SHEPPARD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28812.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

This is an appeal from an order of the court below overruling appellant’s motion filed pursuant to Rule 27.26 V.A.M.R. following his sentence of ten (10) years upon a plea of guilty, to the charge of Robbery First Degree.

While the appellant’s Rule 27.26 motion alleged the basic invalidity of his guilty plea because he was “coerced” to enter such plea and was the victim of ineffective assistance of his retained counsel and an attempt was made to establish such charges at the evidentiary hearing on the motion, that position has been properly abandoned in this court. The record of the guilty plea proceedings is detailed and meticulously complete to show a voluntary, knowing plea of a guilty defendant and the trial court and counsel are to be commended for the care and thoroughness with which it was conducted.

The only remaining point urged on this appeal, seeking the mandate of this court setting aside the sentence and remanding the cause for resentencing, is couched in these words:

“The trial court erred in failing to set aside appellant’s sentence insofar (sic) as said sentence was the result of consideration of constitutionally defective convictions.”

The vague and general wording of this point requires a study of both the record and argument portion of the appellant’s brief. When this is done, these facts emerge:

After the guilty plea was accepted by the trial court the sentencing was deferred awaiting a pre-sentence investigation. The report of this investigation disclosed that the appellant had several previous convictions on guilty pleas for misdemeanors and ordinance violations in some of which he received jail time. He asserted in his 27.26 motion that three of his misdemeanor convictions and resulting jail sentences were constitutionally flawed because he was not provided with counsel, did not know and was not advised that he was entitled to a jury trial, was without funds to employ counsel, was not advised that the state was required to prove the charges beyond a reasonable doubt, and that he would not have entered his guilty pleas to these charges had he known that counsel could be appointed to represent him. He asserts that by reason thereof, he was denied constitutional due process and equal protection of the law under the rule as declared in Argersinger v. Hamlin, 407 U.S. 25, 93 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and other federal cases which hold that a defendant facing any charge which could result in incarceration has a constitutional right to counsel. He argues further that since the invalid convictions appeared in the pre-sentence investigation that the trial court considered them to enhance his sentence on the robbery, first degree charge on which he was sentenced. The record in this proceeding clearly shows that the Argersinger rule has no application here.

The sentencing proceedings were definitely divided into two completely separate and distinct parts. At the outset, appellant’s retained counsel, the appellant and his mother all made urgent pleas to the court that the appellant be placed on probation and the court considered this possibility first. During the course of this consideration the appellant’s mother had stated to the court that her son had never been in any serious trouble before. The following exchange then appears on the record:

“THE COURT: Mrs. Sheppard, do I understand you to say that he hasn’t been in any trouble before?
MRS. SHEPPARD: I said as far as like robbing drugstores or something.
THE COURT: You mean the first robbery in the first degree. But according to the record I have before me, the first offense was in June 1967 at which time he was fined for disturbing the peace; December 1967, he was charged with assault, also destruction of property, fighting, resisting arrest; ’68, in possession of alcohol; ’69, interfering with a police officer; ’71, burglaries, public drunkenness, resisting arrest, assault; ’72, disturbing the peace; you’re aware of all charges are you not, going back to 1967?
MRS. SHEPPARD: I didn’t know that.”

During that portion of the hearing on the possibility of probation it was further admitted by the appellant that since he entered his guilty plea in the instant case he has appeared in court on a resisting arrest charge and was also charged with burglary and stealing when he was apprehended within a Reveo drugstore on an occasion subsequent to his plea in the case at bar. The latter charge was dismissed by the state upon his guilty plea in this case.

At the conclusion of that portion of the sentence hearing, the following appears:

“THE COURT: Well, Mr. Sheppard, in a case of Robbery in the First Degree, except in very unusual circumstances * * * this Court does not grant probation. This is a serious offense and those who commit that sort of a crime must pay the penalty.
Now, in this instance, there was violence done by you as a part of the robbery. The report described it and your testimony at the time of your guilty plea described it, which aggravates the seriousness of the offense. You have a record of assaultive and destructive behavior going back some eight years and it’s consistent and it has persisted right on down to 1971. * * * And that’s why you’re not a suitable candidate for probation. You have nothing in this report going for you. You have a family which you have failed and refused to support and which has either been supported by your former wife or by the taxpayers. You don’t have regular employment. You don’t have a conventional home life. You don’t show any evidence of cooperation and the real significant aspect of probation is, at least initially, an indication by the probationer that he will be amiable to supervision and you are not. So, the Court, without any hesitation at all, rejects any possibility of considering you for probation.”

The trial courts of Missouri have long had the statutory authority to grant probation, initially, upon a conviction. Sections 549.071-549.254 RSMo 1969 (as amended), and exercises broad discretion in that function. See also, Rule 27.07(c), Rules of Criminal Procedure. The statutory predicate for the exercise of this power is a finding that the prospective probationer is of “previous good character”, Section 549.-071(1). Such a finding, of course, not only permits but would seem to require a court to inquire into the person’s past behavior and conduct. For this purpose, the court below properly made reference to the pre-sentence investigation report and exercised its discretion to deny probation. This court is precluded by statute from review of this order. Further, such an order does not come within the scope of the proceeding to set aside a conviction and judgment thereon. Smith v. State, 517 S.W.2d 148, 150[1, 2] (Mo.1974); Green v. State, 494 S.W.2d 356[2, 3] (Mo. banc 1973); Section 549.141 RSMo 1969.

Defendant seeks to avoid the impact of these rules pertaining to judicial probation by arguing that the denial of probation in this case was, in fact, an enhancement of the sentence based upon improper material for consideration in the sentence proceeding contained in the pre-sentence investigation. From this premise he argues that his constitutional rights were infringed. However ingenious this convoluted argument, it is not convincing and is based upon a fact assumed but completely refuted by the record, which convincingly discloses that the trial judge did not consider the report in his sentence of the defendant.

At the close of the hearing on the request for probation and the denial thereof, the following appears:

“THE COURT: * * * Now, the next question is what should be the term of your sentence. Again, the character of the offense and the manner in which it was committed bear weight. Serious offenses of which Robbery in the First Degree is, particularly when accompanied by an assault, one of the most serious offenses we deal with and the punishment has to be proportionate.” (Emphasis added)

At the conclusion of the evidentiary hearing on the Rule 27.26 motion (held before the same judge who had passed sentence) the court noted in its findings that the defendant claimed that it had improperly considered three prior convictions in passing sentence which were claimed to be invalid and noted that:

“ * * * For purposes of this motion it will be assumed that absence of counsel would render certain of the convictions included in the exhibit (abstract of pre-sentence report) defective for some purposes including enhancement of punishment.
# ⅝ # ⅝ * sfc
The record of the hearing indicates and the court specifically here reaffirms that movant’s previous history of misdemean- or and ordinance violations was considered, together with other details in the presentence report, only on the question of probation. * * * The only factors mentioned as bearing on the term of sentence were the character of the offense and manner in which it was committed. * * * The robbery committed by the movant was accompanied by an unprovoked assault on the victim. The sentence of 10 years was at the lower range of the punishment authorized by statute for the offense and is amply justified under the facts of the case without any reference to the mov-ant’s previous record.
As the sentence imposed was not enhanced by reason of prior convictions, it is unnecessary to consider movant’s claim of the invalidity of such convictions as bear-, ing on a reconsideration of sentence.” (Emphasis supplied)

The court below conducted the whole proceeding in a judicial and fair manner and no abuse of discretion or error appears.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    Barry D. FOWLER, Plaintiff-Appellant, v. S-H-S MOTOR SALES CORPORATION and Chrysler Corporation, Defendants-Respondents.
    No. KCD 28843.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      S. W. Longan, III, Kansas City, for plaintiff-appellant.
    James H. Horn, James M. Warden, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for respondent S-H-S.
    Thomas O. Baker, Phillip B. Grubaugh, Gregory B. Allen, Kansas City, of counsel, Watson, Ess, Marshall & Enggas, Kansas City, for respondent Chrysler Corp.
    Before PRITCHARD, P. J., and SWOF-FORD, C. J., and DIXON, J.
   DIXON, Judge.

Plaintiff brought suit against Chrysler Corporation and S-H-S Motor Sales Corporation for personal injuries and property damage sustained in a one-car accident involving a car operated by plaintiff. The plaintiff’s theory was that defendants were liable under Section 402A, Restatement of Torts, by reason of a defective rear axle in plaintiff’s vehicle. The trial court directed a verdict for S-H-S at the close of plaintiff’s evidence, and the jury found for Chrysler. Plaintiff appeals, alleging seven points of error.

In the light of the complaints made, a somewhat detailed statement of facts is required.

The accident occurred on September 21, 1972, around midnight, when a new 1973 Dodge Coronet station wagon, driven and owned by plaintiff, crashed into the wall of the Jones Store at 13th and Walnut in Kansas City, Missouri. Before coming to rest at the Jones Store, the car had careened down 13th Street for three blocks. During the three blocks, the car hit a light-post, cement retaining wall, tubular fence, fire hydrant, guardrail fence, a light pole, a small shack, another guardrail fence, went over the curb and into the Jones Store wall. The right front tire came off and was found on Grand Avenue. The claimed defect was that the rear axle of plaintiff’s car was bent and its installation gave rise to stress which upon use resulted in axle failure.

Plaintiff first testified that he stopped at the light at 13th and McGee and after he started up, he put on the brakes. From this point until after the crash, plaintiff doesn’t remember anything. Later, on cross-examination, plaintiff testified that as he approached the intersection of 13th and McGee he stepped on the brakes and that he had not stopped before he started into the intersection. An eyewitness testified that the car was going between 15-25 miles per hour and, after it crossed Grand, it was gaining speed. When the car reached Walnut, its estimated speed was 30 miles per hour. The eyewitness testified he did not see the brake lights come on.

Plaintiff suffers from a disease known as psychomotor epilepsy. By a pre-trial request in chambers, plaintiff sought to have any evidence of plaintiff s epilepsy excluded from the trial. The circumstances and the form of the request are critical to the issue plaintiff raises. During the pre-trial proceeding, counsel for plaintiff informed the court that his client suffered from epilepsy and that the defendants intended to make it an issue in the case, counsel then said to the court:

“We feel that it is not an issue in this case and would like a preliminary ruling on that question because we feel that it is being injected as contributory negligence.”

The following colloquy then occurred:

“Well, it’s more than contributory negligence, I suspect.
MR. LONGAN: The defendants’ contention is — will be that it was this condition that caused the accident rather than a defect in the vehicle.
MR. HORN: Right.
MR. LONGAN: Do I understand the Court to rule that the matter of plaintiff’s epilepsy is properly introduced over objection?
THE COURT: I can’t tell yet.
MR. LONGAN: It would make a big difference in our presentation of our case, obviously, if the Court is going to let it in.
THE COURT: Well, I suspect it’s going to get in.”

Following that conference in chambers, the trial proceeded, and plaintiff’s counsel, in his opening statement, fully disclosed the plaintiff’s epileptic history. On direct examination, plaintiff testified that he has had epilepsy since 1957. During 1972, plaintiff testified that he had seizures about every 2-3 months and full blackout seizures about every 2-3 months. The seizures are the same type, but different strengths. Sometimes plaintiff was fully conscious and sometimes he was unconscious. During most seizures, plaintiff will just stand there with muscles tightened, perfectly rigid. The seizures last from a couple of seconds to 2-4 minutes. There is a pattern to the seizures in that they come in groups. Plaintiff will have 2-5 seizures within a 1-3 day span and then a period of 1-3 months where he will not have a seizure. Plaintiff’s doctor had advised him not to drive.

Plaintiff testified that he has never had a seizure where he did not receive a signal or warning (“aura”) before the seizure and he did not have a seizure or warning on the day of the accident. An aura is the beginning of a seizure which can manifest itself by muscle spasms or abdominal pain or smell or taste and, when the aura forms, the seizure can spread slowly or rapidly. Plaintiff’s psychiatrist testified that it was “quite possible” that plaintiff’s blackout preceding the accident could have been caused by a seizure and that plaintiff could have had a seizure without having the warning of an aura.

At around 4 p. m. on September 21,1972, plaintiff went to Midwest Motors to pick up his new car. Plaintiff started driving the car out of the shop when he hit a parked car. Two employees of Midwest Motors described plaintiff as just sitting there frozen to the wheel, rigid, hands and arms gripped to the steering wheel, and eyes straight ahead. Plaintiff “finally came to” and indicated he just wanted to sit a minute.

On direct examination, plaintiff admitted having been involved in two car accidents which were preceded by an epileptic seizure. In both accidents, plaintiff’s car went off the right side of the road, hit a variety of objects, and struck another car. In one accident, plaintiff told an officer at the scene that he started feeling a seizure, put on the brake, blacked out, and the next thing he remembered he was crawling out of the car. Plaintiff further testified that he had been in five additional accidents which he blamed on mechanical failures. In all of these accidents, plaintiff’s car left the road and collided with a number of different objects. In all five accidents, plaintiff was unconscious and could not remember what he hit. Plaintiff was not involved in other accidents, but there were occasions where he would feel a seizure coming on and would pull off the road, stop, and wait.

To support defendant’s contention that the right rear axle of plaintiff’s car fractured as a result of impact during the accident, defendant introduced in evidence a motion picture film of two test vehicles being crashed into a solid barrier. These tests were not prepared for the purpose of this lawsuit. The court heard testimony to determine whether the movie should qualify and the movie was first displayed for the court and plaintiff’s counsel out of the presence and hearing of the jury. The exhibit was offered in evidence and received over plaintiff’s objections. The film involved tests on a Chrysler proving ground with two automobiles, one a 1973 Dodge station wagon and the other a 1974 Plymouth Duster. While neither of the cars in the film was a 1973 Dodge Coronet station wagon, the 1973 station wagon used in the test was of the same structure and construction throughout as plaintiff’s car. All three cars had identical axle design, as well as drive shaft, transmission and engine design. The test cars were crashed at 30 miles per hour and impacted at 90 degrees to the barrier. Plaintiff’s car impacted at the same or very close to the same angle. In these tests, the engines are not normally running, but this would not be significant in measuring the forces which travel the load path of the power train. The power train load path is a term used to describe the path the force follows back through the engine, transmission, drive shaft, and differential to the rear axle. Being more resistant to crushing, the power train load will stop on impact while the rest of the car is still moving forward. This results in bending in the axle assembly and subsequent fracture on the right side. The fracture occurs on the right side, the same location as the fracture of the axle in plaintiff’s car, because the axis of the drive train isn’t exactly down the middle of the car. Comparing still photographs of the underbody of the Dodge station wagon used in the tests with photographs of the same areas in plaintiff’s car, the damage is the same on both cars, except the damage to plaintiff’s car looks a little more severe. There is no difference between this test vehicle and plaintiff’s car with respect to the underside of the ear. Two tow truck drivers testified that in their experience they have seen rear axles broken as the result of front end impacts.

Defendant’s evidence further showed that no part of the manufacturing process could have produced a bend in the axle shaft like the one in plaintiff’s car. An axle shaft bent like the one from plaintiff’s car could not be assembled on a car during the manufacturing process. To illustrate this, defendant introduced a flat model of one side of the rear axle assembly which depicted an axle similar to the axle on plaintiff’s car. The diagram fairly and accurately represented on a flat scale the axle in plaintiff’s car. For purposes of the model an axle was prepared which had a bend similar to the bend in plaintiff’s axle. Plaintiff’s objection to the use of this exhibit was overruled.

Plaintiff assigns seven points of error which are presented separately, but which may be grouped under four general headings.

I

Plaintiff’s first point complains that the trial court erred in permitting defendants, over the motion and objection of the plaintiff, to inject into the trial the false issue of causation by reason of plaintiff’s epilepsy. This point is broken into sub-points: that the court erred in overruling the plaintiff’s motion in chambers before opening statement; that the court erred in allowing the issue of epilepsy to be interjected under the guise of legal causation; and error in refusing the plaintiff’s instruction withdrawing consideration of plaintiff’s epilepsy. Subsumed also under the point is the claim that further objection would be futile.

When this point is considered in the light of the evidence at trial, it is clear that plaintiff has failed to preserve any claim of error with respect to the admission of evidence of his epileptic state. Rule 84.13(a); Kern v. Danbury, 471 S.W.2d 489 (Mo.App.1971); Poage v. Parker, 343 S.W.2d 203 (Mo.App.1961). A review of the transcript, the relevant portions of which are included in this opinion, demonstrates that plaintiff, failing in his initial attempt to exclude the evidence prior to trial, elected as a tactical matter to open the question in his opening statement. The attempt to take the sting out of subsequent efforts by defendants to show the plaintiff’s disability was a tactical choice. The attempt by the plaintiff to remedy the preservation problem by the citation of Miller v. Kamo Electric Cooperative, Inc., 351 S.W.2d 38 (Mo.App.1961), is inappropriate. In Miller, a ruling had been made by the trial court, and Miller holds only that offers of proof were not necessary to preserve an objection for review under the conditions of that case.

The trial court’s denial of plaintiff’s instruction which would have directed the jury to disregard evidence of plaintiff’s epilepsy was proper. Plaintiff argues that the issue of epilepsy goes to the issue of contributory negligence, which is not a defense to an action founded on Restatement of Torts, Section 402A. It is the law in Missouri that contributory negligence is not a defense to strict liability in tort and plaintiff’s statements in this regard are correct. Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). Evidence of plaintiff’s epilepsy was directed to the issue of causation and on this issue it was relevant and proper. Defendant is entitled to submit his version of the facts to the jury. Williams v. Christian, 520 S.W.2d 139 (Mo.App.1974); Wilson v. Checker Cab Company, 431 S.W.2d 122 (Mo.1968); Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967). Williams was a tort case involving a pedestrian who was struck and injured by an automobile. The jury found for the defendant, and plaintiff-pedestrian appealed. In reversing and remanding for a new trial for failure to give a lookout » instruction requested by plaintiff, the court stated defendant “is entitled to submit her warring version of the facts.” Williams, supra, 520 S.W.2d at 146. In Wilson, plaintiff claimed personal injury caused by the negligence of a taxi driver in permitting the cab to move forward while she was alighting. Defendant offered evidence to show that plaintiff fell about twenty feet from the cab. Verdict directing instructions were submitted to the jury concerning these ultimate issues of fact. The jury found for defendant, and the trial court granted plaintiff a new trial on the ground that there was error in giving defendant’s instruction. In reversing the trial court’s order granting plaintiff a new trial and remanding the cause with directions to reinstate the verdict, the appellate court recognized that the submission of “a converse instruction does not require plaintiff’s theory of the case to be directly or precisely conversed.” Wilson, supra, 431 S.W.2d at 123. In Bollman, a case involving a claim for personal injuries allegedly sustained as a result of negligent failure to install guards on a winch, the court held that “[a] defendant has the option to submit its theory of the case by way of a converse instruction, without being required to directly negative the plaintiff’s theory of the case.” Bollman, supra, 418 S.W.2d at 49. Under the above cited cases, defendant may offer evidence and submit his own theory of the case to the jury on the issue of causation. Defendant is not confined to plaintiff’s theory and need not direct his evidence solely to whether or not the axle was defective as plaintiff in this case contends. The effect of submitting plaintiff’s jury withdrawal instruction would have been to deny defendant his option to present his side of the case on the causation issue. It was proper for the trial judge to deny such an instruction.

II

Three of the plaintiff’s points may be considered together. They relate to the admission of evidence offered by the defendants in the nature of tests or models and a purported limitation on cross examination. The first such claim is with respect to a motion picture film. The film was not prepared for the purpose of this litigation but was a film developed by the Chrysler Corporation as a general part of its testing process and involved the filming of a series of crashes by vehicles. As previously noted, the vehicle was not identical with the plaintiff’s vehicle, but was apparently of substantially similar construction and design. Likewise, although the impact was somewhat different in the test film than in the circumstances of this case, there is a considerable similarity.

Admission of evidence of experiments, or permitting them to be performed in court, is a matter within the sound judicial discretion of the trial judge. In this regard, his discretion should not be interfered with on appeal unless it is manifest that it has been abused. Klaesener v. Schnucks Markets, Inc., 498 S.W.2d 555 (Mo.1973); Lynch v. Railway Mail Association, 375 S.W.2d 216 (Mo.App.1974). The trial judge is not required to find that the circumstances of the experiment are exactly identical to those of the accident, but only that they are substantially similar. A recent Missouri Supreme Court decision set forth the rule as follows:

“The law is well settled that experimental evidence is admissible when the experiment was made under conditions substantially similar in essential particulars to the conditions which prevailed at the time of the occurrence in suit, and that the conditions need not be identical. .
The similarities must be in those circumstances or conditions as might supposedly affect the result in question; and the degree of similarity or difference should be judged in the light of the fundamental principle that any fact should be admissible which logically tends to aid the trier in determination of the issue.” (omitting cited cases). Blevins v. Cushman Motors, 551 S.W.2d 602, 610 (Mo.1977).

In the instant case, the trial judge determined that the crash tests were substantially similar to those of plaintiff’s car accident. No abuse of discretion has been made to appear.

The New Jersey case cited by plaintiff, Balian v. General Motors, 121 N.J.Super. 118, 296 A.2d 317 (1972), is inapposite. The New Jersey Superior Court reversed the trial court’s judgment in favor of defendants by concluding that the motion pictures should have been excluded from exhibition to the jury and admission into evidence. But in reaching its conclusion, the Batían court considered significant many factors not present in the instant case. Defendant’s failure to comply with the spirit of that state’s procedural rules of discovery and a court order, in combination with the questionable tactics of defendant’s counsel, were considerations presented in that case, which are not present here.

Plaintiff also objects to the trial court’s admission of a flat model of a rear axle shaft offered by the defendants for the purpose of showing the axle could not have been assembled in the faulty condition claimed by the plaintiff. The plaintiff failed to include a specific claim of error in his motion for new trial concerning this evidence. Rule 78.07 provides that all claims of error must be included in the motion for new trial to be properly preserved. The only allegation in the motion for new trial remotely approaching a claim of error in this regard is that the court erred in admitting irrelevant, incompetent, and immaterial evidence. This allegation is insufficient to draw the court’s attention to the particular ruling claimed* to be erroneous and is not sufficient to identify a particular ruling. Cole v. Bumiller, 549 S.W.2d 95 (Mo.App.1977). Plaintiff has also failed to preserve for review a claim that the trial court erred in limiting plaintiff’s cross examination of defendant’s expert witness. No claim of error concerning such action by the trial court appears in the motion for new trial.

Ill

Plaintiff urges error on the part of the trial court in refusing to permit the plaintiff to offer rebuttal evidence at the close of all the evidence concerning plaintiff's version of the accident in the Midwest Motors parking lot. Plaintiff’s claim is that he would have offered evidence that the incident occurred on August 15,1972, rather than on September 21, 1972, as the defendants’ witnesses testified. Under Missouri practice, the decision whether to reopen a case after both sides have closed to permit the introduction of evidence is a matter within the trial court’s discretion. Unless it appears that such discretion has been abused, in that injury has resulted therefrom to the complaining party, the decision of the trial court will not be interfered with on appeal. Prevost v. Wilkin, 358 S.W.2d 417 (Mo.App.1962); Russell v. Wyant, 214 Mo.App. 377, 253 S.W. 790 (1923); Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 208 (1916). The rebuttal evidence was not so material that it would have produced a different jury verdict. In the first place, assuming the trial court had permitted Fowler to testify again and permitted the introduction of the documents in question, the jury still could have believed the incident at Midwest Motors occurred in September or the jury could have believed there were two incidents, one in August and another in September. In the second place, even if the jury believed the incident in question did not occur in September, there was ample evidence from which the jury still could have found for defendant. When and if such an incident occurred was a collateral issue. Such evidence would have been cumulative, and its refusal is not an abuse of discretion.

IV

Plaintiff contends the the trial court erred in sustaining defendant S — H—S Motor Sales Corporation motion for directed verdict at the close of plaintiff’s evidence. He claims prejudice because the directed verdict permitted the seller’s erroneous defense of contributory negligence to remain in and permeate the trial in the minds of the jury. For error to be reversible, it must have been prejudicial to the complaining party. Sanders v. H & S Motor Freight, Inc., 526 S.W.2d 332 (Mo.App.1975); Kennedy v. Tallent, 492 S.W.2d 33 (Mo.App.1973). The burden of establishing that error was prejudicial is on the appellant. Nash v. Plaza Electric, Inc., 363 S.W.2d 637 (Mo.1962). Unless the error committed materially affected the merits of the case, it will not cause reversal. Harmless error is not ground for reversal. Rule 84.13(b); Neavill v. Klemp, 427 S.W.2d 446 (Mo.1968). Plaintiff brought this action against Chrysler Corporation and S-H-S under the same theory of liability. It was later determined by the jury verdict that plaintiff failed to prove his case against Chrysler Corporation. Since the jury found the identical issues in favor of Chrysler as it would have had to find for S-H-S had S-H-S remained in the case, any error in dismissing S-H-S was harmless and is not ground for reversal. Jackson v. Haley, 432 S.W.2d 281 (Mo.1968); Sutton v. City of St. Joseph, 265 S.W.2d 760 (Mo.App.1954). Plaintiff was not prejudiced by this ruling. The trial judge merely informed the jury that Chrysler was the only defendant left in the action. The trial judge never mentioned the words “negligence” or “contributory negligence” in addressing the jury. As to advising juries on verdict-directing actions, this court has stated, “we are aware of no ruling taking the view that it affects juries prejudicially in instances where another defendant thereafter remains in the case.” Elmore v. Kansas City, 333 S.W.2d 795, 798 (Mo.App.1960).

Plaintiff’s final claim is that the alleged errors in the aggregate constitute cumulative error. The discussion above indicates only that some of the points raised are not error. As to those properly raised, they are not so related in effect as to require consideration, even if error were assumed.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    In re the MARRIAGE OF James M. BREEN, Petitioner-Appellant, and Sandra K. Breen, Respondent-Respondent.
    No. KCD 29035.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      P. Wayne Kuhlman, Liberty, for petitioner-appellant.
    No respondent’s brief filed.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The plaintiff husband commenced an action by publication in Clay County against the wife for dissolution of marriage, disposition of the marital property and for custody of the infant daughter. The affidavit for service by publication alleged that the wife left the residence some months before and that her present address was unknown.

The petition alleged domicile in Clay County and described the marital real estate held by the entireties in that county. The defendant wife made no answer and the cause went by default. The evidence proved these allegations of the petition and that the wife had deliberately abandoned the marriage domicile with the intention not to return.

The court found the marriage irretrievably broken and ordered dissolution and custody of the infant to the father but considered that, in the absence of personal service on the defendant, he was without jurisdiction to divide the marital property. The husband appeals from that latter determination.

The Dissolution of Marriage Act provides [§ 452.330] that in a proceeding for dissolution a court with jurisdiction to dispose of the property shall divide the marital property fairly between the spouses. The law does not in terms say how judicial jurisdiction over the parties and the marital property shall be obtained but specifies [§ 452.-310] that all proceedings under the Act are commenced in the manner provided by the rules of the Supreme Court. Rule 54.12 provides that in civil actions which affect specific property, or any res or status within the jurisdiction of the court, service of process may be made as allowed by Rule 54.13 for personal service within the state, by Rule 54.14 for personal service outside the state, by Rule 54.15 for service upon certain state officers, by Rule 54.16 for service by mail, and by Rule 54.17 for service by publication.

A proceeding for dissolution of marriage — as was the predecessor suit for divorce — is a statutory action sui generis, a remedy at law determined on principles of equity. Allen v. Allen, 433 S.W.2d 580, 584[8-11] (Mo.App.1968). The traditional law created marriage as the consent between a man and woman to discharge those duties the law imposed on the relation of husband and wife. Banks v. Galbraith, 149 Mo. 529, 51 S.W. 105, 106 (1899); 55 C.J.S. Marriage § 1. Thus, by that view marriage was a contract, but pre-eminently a special status beyond mere contract. The more contemporary Dissolution of Marriage Act treats the marriage as a shared economic enterprise as well as a special status, and so gives a nearer parity to both incidents of that unique relation. Corder v. Corder, 546 S.W.2d 798, 803[3] (Mo.App.1977); Krauskopf, Division of Property, 41 Mo.L.R. 165, 171 (1976). An action for dissolution of marriage [or for absolute divorce under the earlier practice], therefore, does not present an ordinary adversary proceeding but an amalgam of contractual right and status.

Insofar as such a proceeding affects certain contract aspects of the marriage [such as the right to money alimony under the former practice — or maintenance under the present procedure] the action is in personam and requires personal service or presence of the other spouse for valid judgment. State ex rel. Miller v. Jones, 349 S.W.2d 534, 537[5-9] (Mo.App.1961); Ellison v. Martin, 53 Mo. 575, 578 (1873); § 452.335; Ruhland, Maintenance and Support, 29 Journal of Missouri Bar 516 (1973). Insofar as such a proceeding affects status only [such as the marriage itself or custody of children of the marriage], the action is in rem — or at least quasi in rem — and requires for valid judgment only that the res be before the court on proper notice. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W .2d 566, 569[1-5] (banc 1949); Coffey v. Coffey, 71 S.W.2d 141, 142[6] (Mo.App.1934). That is merely to say that the tribunal must have jurisdiction over the person of the defendant to adjudicate a personal liability against him, and must have jurisdiction over the thing — be it status or specific property — to affect the interest of the defendant in that thing. Restatement of Conflict of Laws 2d, § 27 et seq. and § 56 et seq.

A court had no power by the former practice in divorce proceedings to adjudicate the property rights of the parties. Nor could a court get such a power until so endowed by law. Bishop v. Bishop, 151 S.W.2d 553, 556[2-4] (Mo.App.1941). This authority was granted Missouri tribunals for the first time by the enactment of § 452.330 of the Dissolution of Marriage Act. The adjudication of that new remedy on conventional principles depends upon the situs and nature of the property to be divided. It is a virtually universal rule that immovable property — such as real estate— is subject exclusively to the laws of the government within whose territory the property is located. It is an equally firm rule that the law of the situs determines the acquisition, disposition and devolution of the real property. Wass v. Hammontree, 77 S.W.2d 1006, 1009 (Mo.1934); 15A C.J.S. Conflict of Laws § 19(1). And this power of a state to adjudicate interests in land within the territory may be validly exercised even though [contrary to the determination by the circuit court] the person who claims these interests is not personally before the court. Restatement of Conflict of Laws 2d § 59. That is because for a valid judgment in rem traditional due process requires only that the sovereignty which adjudicates have physical power over the res directed against and that the law of the sovereignty provide a mode of service to notify persons whose interests are to be affected by the proceedings and to allow opportunity to be heard. Leflar, American Conflicts Law § 20 (3d edition 1977).

The authority of the circuit court to proceed in rem to act upon the title to the real estate of the husband and wife in a dissolution proceeding, therefore, derives as it must from the sovereign lawmaker. § 452.330. And the means to subject the res to the control of the court for that purpose by proper process also derives from the law, in this case, Rules 54.12 and 54.17.

On these principles the circuit court of Clay County had competent judicial jurisdiction to affect the title of the absent wife to the marital property on the petition for dissolution by the husband once that res was brought within the control of the court by lawful process. Rule 54.12. This the husband accomplished by compliance with the terms of Rule 54.17 for service by publication any notice which informed of: the commencement of the action, the object and nature of the proceeding, a description of the property to be affected, the name of the court and the names of the parties to the action, the name and address of the attorney, the advice that judgment by default would be taken against the wife unless the defendant wife filed an answer within forty-five days of publication, and the date of the first publication. This procedure, according to conventional due process, allows rendition of a valid judgment in rem as to the title of real estate, marital status, or any other thing authorized by law [Rule 54.12] to be brought before the court by that method. Stone v. Stone, 134 Mo.App.242, 113 S.W. 1157 (1908); State ex rel. Bensberg v. Bensberg, 323 Mo. 171, 19 S.W.2d 637 (banc 1929).

These perennial rules of due process for judgments in rem and quasi in rem have been reordered by the United States Supreme Court very recently in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The long history of jurisdiction in rem based solely-on the presence of property within a sovereign territory [Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) and Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905)] has given place to the principle of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) that the power to adjudicate, whether in personam or in rem, depends upon the contacts among the defendant, the forum and the litigation. Shaffer v. Heitner, 432 U.S. 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683,1. c. 698, 699. This view rejects the traditional distinction between a judgment in personam and a judgment in rem which rests upon the fiction that a proceeding against the property is not a proceeding against the owners of that property. Shaffer v. Heit-ner, 432 U.S. 205, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683, 1. c. 698. It acknowledges, rather that property is a legal relationship between a person and a thing. “It is an ownership which a person has in a thing. Whether a judgment operates in rem or in personam, it operates upon the rights [or claims] and obligations of persons.” Leflar, American Conflicts Law § 19 (3d edition 1977). Shaffer v. Heitner expounds the integral rule, therefore, that the jurisdiction of a state to adjudicate rests not on the dogma of power derived from presence alone — whether of the person or property— but from [432 U.S. 204, 97 S.Ct. 2580, l. c. L.Ed. 698] “the relationship among the defendant, the forum, and the litigation.” Thus, fair play and substantial justice require that the property be related somehow to the cause of action in litigation whether for a judgment in personam or a judgment in rem — in each case a question of fact.

These announced principles make it altogether plain that the seizure of property alone will not support a valid judgment in rem. However fallible the procedures of Rules 54.12 and 54.17 have now otherwise become, when they are used — as has this plaintiff — not merely to compel the presence of the defendant or other purpose extraneous to the litigation but to adjudicate rights in the very property seized, the minimum contacts between the State, the parties and the subject of the litigation are present and afford an acceptable basis for the exercise by the sovereignty of judicial jurisdiction over the subject matter. In the terms of Shaffer v. Heitner, supra, 432 U.S. 207, 97 S.Ct. 2582, l. c. L.Ed. 700:

[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.

The acquisition of the real estate within Missouri by the marriage was a purposeful avail by the spouses of the protection by this sovereignty of their interests in the property. It was a conscious assumption of risk that the State would exercise its power over their property interests, and certainly would adjust their disputes over ownership should the marriage dissolve. Hanson v. Denkla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The claim to the real estate which the circuit court refused to adjudicate was, in fact, one of the elements of the cause of action pleaded by the petition for dissolution. It was one aspect of the underlying controversy and intimately related to the absent defendant by her title and claim of ownership, and was related to the forum as the absolute arbiter of the public policy over marriage and dissolution [Nelson, Divorce and Annulment § 2.02 (Second Edition); Wald v. Wald, 119 Mo.App. 341, 96 S.W. 302, 305 (1906)] and as the source of title and of the privileges and liabilities of land ownership. [Restatement of Property, Introductory Note to Chapter 1; Patton on Titles § 281 (Second Edition); Chapter 442, RSMo 1969]. The relationship among the forum, the property and the parties, as a matter of proven fact, satisfied the minimum contacts requirements of due process to adjudicate against the nonresident defendant her interests in the real estate before the court. Accordingly, the circuit court had competent jurisdiction to adjudicate the claims to the marital real estate and committed error by failure to do so.

The husband contends that the circuit court should be directed to divide not only the real property but the personal property of the marriage as well. Our decision does not go that far. A valid judgment in rem does not follow merely because the forum — by reasonable contacts with the property in dispute, the litigants, and the cause of action — has the right to adjudicate, but due process requires also that the judicial determination be preceded by notice to the absent defendant and opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 et seq., 70 S.Ct. 652, 94 L.Ed. 865 (1950). Rules 54.12 and 54.17 define the procedures for service of process by publication upon an absent defendant in proceedings in rem and quasi in rem. Rule 54.12 authorizes service of process as provided in Rule 54.17 for actions which affect “specific property, or any interest therein . . . within the jurisdiction of the court.” Rule 54.17 allows for service of process by publication on the unavailable defendant. That procedure requires that the notice of publication shall state “a description of any property to be affected” by the judgment.

This requirement for a published description of the property is more than mere etiquette; it is the means by which the res is brought to the control of the court and enables the tribunal to affect the property interest of the defendant even in her absence. Leflar, American Conflicts Law §§ 3, 21 (2d Ed. 1968). Thus, the power of the court to act in rem over the property of the marriage is confined by the law itself. It is for this reason our decisions hold that when there is reliance on a judgment entered upon constructive notice, it must appear that the notice was given in strict compliance with the provisions of law. Driscoll v. Konze, 296 S.W.2d 31, 33[1] (Mo.1956).

The petition of the husband, the notice of publication, and the evidence each gives a full legal description of the marital real estate. There is none for the personal property either in the petition or in the notice other than the recitation in the publication that the purpose of the action [inter alia]: “to dispose of all property rights under this marriage.” The publication then enumerates and describes only the real estate. Nothing in the publication constitutes a description of the personal property of the marriage, and in fact, none is found in the evidence either. The term description means a depiction or representation by language. State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490, 494[6] (banc 1928). The personal property of the marriage entirely lacks this delineation and so the circuit court was without power to adjudicate the interest of the defendant to that property. Duncan v. Duncan, 550 S.W.2d 623 (Mo.App.1977); Rules 54.12 and 54.17.

The power of the court to divide the marital property under § 452.330 imports the means to give effect to this power — and includes the transfer of title without execution of deed — as is most likely in the case of an unavailable spouse. Claunch v. Claunch, 525 S.W.2d 788, 791[2, 3] (Mo.App.1975). The effectiveness of this power depends upon a judgment which describes the property with particularity and certainty. 27B C.J.S. Divorce § 300(1); Fowler and Krauskopf, Symposium on Dissolution of Marriage: Property Provisions, 29 J. of Mo.Bar 508, 514 (1973). Rules 54.12 and 54.17 serve that ultimate purpose.

The judgment is reversed and remanded.

      . The transfer of title to real estate by judicial act on constructive notice does not describe a new power. It has been authorized in numerous statutory actions to affect real estate, among them, suits to quiet title [§§ 527.150 and 527.250; Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 882[5, 6] (banc 1922); suits for partition [§§ 528.010 and 528.090], and also those other actions described in note 12 of the annotated § 506.160.

      . The plaintiff nonresident brought a shareholder’s suit against a Delaware corporation and a number of directors and officers of the defendant corporation, nonresidents of Delaware, which alleged the defendants were responsible for corporate losses from activities in Oregon. There was no attempt at personal jurisdiction over the defendants, but the proceeding was commenced by sequestration of the property interests of the defendants in the stock of the corporation in Delaware under a local statute. This procedure allowed the defendants to defend on the merits only if they made personal appearance and so be subject to judgment in personam. The defendants contended the sequestration procedure did not accord them due process of law. The United States Supreme Court concluded that the garnishment of property based on nothing more than service upon the obligor — where the property was not the subject of the litigation — did not comport with principles of substantial justice and fair play and so was unconstitutional. The decision directly overrules Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1915) and whatever vestige of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) remained valid after International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

      . The decision in Shaffer v. Heitner, supra, fulfills the intimations of earlier decisions and pre-eminent authorities that physical power alone over the property — in the absence of a reasonable relationship to the forum, defendant and cause of action — should not suffice as basis for judicial jurisdiction in rem. Leflar, American Conflicts Law §§ 19,23 (3d Ed. 1977); Restatement of Conflicts of Laws 2d § 56 and Introductory note; Mehren & Trautman, Jurisdiction to Adjudicate; A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966).


author: WASSERSTROM, Judge.

text:
    RAY NEAL DISTRIBUTORS, INC., Appellant, v. The LABOR & INDUSTRIAL RELATIONS COMMISSION of Missouri and Missouri Division of Employment Security, Respondents.
    No. KCD 29087.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      P. Terence Crebs, St. Louis, for appellant.
    Rick V. Morris, Jefferson City, for respondent Missouri Div. of Employment Security.
    Charles B. Fain, Jefferson City, for respondent Labor and Industrial Relations Com’n of Missouri.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The question for determination in this case is whether certain individuals doing work under contracts with Ray Neal Distributors, Inc., are in “employment” so as to subject Ray Neal to the Missouri Employment Security Law and thereby make it liable for unemployment compensation contributions. Ray Neal contends that these individuals are all independent contractors. A deputy of the Division of Employment Security made an administrative determination to the contrary. Pursuant to Ray Neal’s appeal, a hearing was held before an Appeals Tribunal which affirmed the deputy. An application for review was denied by the Labor and Industrial Relations Commission, thereby adopting the order of the Appeals Tribunal. Ray Neal thereupon appealed to the circuit court which affirmed the Commission. Ray Neal now further appeals to this court. We reverse and remand.

Ray Neal is in the business of furnishing a variety of services as follows: (1) franchise services through dealers; (2) maid services in homes; (3) post construction cleanup work on newly constructed buildings; (4) cleaning of offices and a few churches; (5) tile stripping and sealing of floors and carpet cleaning; and (6) window washing and other general cleaning in residences. No claim has ever been asserted by the Commission that the dealers furnishing franchise services are employees of Ray Neal. Further, the Commission has affirmatively ruled that the individuals performing maid service are excluded under Section 288.034.12(2). Therefore no attention need be given to the first and second categories of workers listed above.

With respect to the workers doing post construction cleanup, window washing and general houseeleaning, the facts are as follows. Ray Neal solicits and obtains contracts from the building owner to do the work. Then Ray Neal advertises for workers. When an individual responds to the advertisement and indicates willingness to do this type of work, Ray Neal obtains the worker’s signature to a “Sub-Contractor Agreement” outlining the nature of the relationship that shall exist between the parties. The standard agreement provides in significant part as follows:

“1. I am to be paid on each unit cleaned rather than an hourly wage. When there are two or more people cleaning the same unit, monies will be divided between all parties.
2. Units must be thoroughly cleaned as per check list in order to pass customer’s inspection. Should unit fail to pass inspection, I agree to reclean same without additional compensation or forfeit monies due me to the party that does reclean the unit to the customer’s satisfaction.
3. I understand monies due me will be mailed on or near the 18th of the month, following the work performance providing payment has been received from the client. Exception would be in cases where checks have been withheld for damages or unsatisfactory work.”

Most of the individuals who are so obtained and who sign • these contracts have other jobs and do this cleaning work on an extra part-time basis.

After getting the worker’s agreement, Ray Neal undertakes to get the worker to accept a particular assignment. The worker is free to accept or reject an assignment as he sees fit. If the worker accepts the assignment, he reports with his own tools and equipment to the job site where he comes under the supervision of the customer. In the case of post construction cleanup, there is a superintendent of the customer on the job who “is strictly in charge.” No one from Ray Neal goes out to the job site to see how the worker has performed and “nobody from Ray Neal Distributors, Inc. has anything to do with that approval.” At the conclusion of the job, the customer mails payment to Ray Neal, who in turn makes payment of the agreed amount to the worker. On the post construction cleanup jobs, the worker receives approximately 60 to 75% of the amount paid by the customer.

Office and church cleaning jobs are generally done by the same individuals who do post construction cleanup and generally follows the same procedural routine, except that the office and church cleaning is on a more continuous basis. There cleaning jobs are generally done on weekends, and the worker can set his or her own schedule within a particular weekend. On this type of job, it sometimes happens that the customer becomes dissatisfied with the worker who has been assigned by Ray Neal. In such instances, Ray Neal tries to get the customer to let it change the personnel assigned rather than to completely discontinue the Ray Neal service.

The carpet cleaning and tile floor stripping and sealing proceeds also along the same general lines already outlined. The principal difference in the case of carpet cleaning is that certain machines are required which Ray Neal owns and supplies to the workers.

The issue in this case of whether the workers in question are “employees” or “independent contractors” is governed by Section 288.034.5 which provides:

“Irrespective of the usual tests for determining the existence of the independent contractor relationship as at common law, service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that
(1) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(2) Such service is either outside the usual course of the business for which service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(3) Such individual is customarily engaged in an independently established trade, occupation, profession or business.”

Responsive to that statutory test, the Commission found:

“Since Ray Neal made the work assignments and could change assignments in the event of unsatisfactory work, the Referee finds that these workers were not free from the control of Ray Neal in the performance of their work. The Referee further finds that the services performed by these workers were in the usual course of business of Ray Neal. Therefore, the Referee finds that since all three tests provided in Section 288.034.5 were not met with respect to workers engaged in post-construction cleanup, office cleaning, church cleaning, carpet cleaning and tile stripping, that these workers performed services for wages or under a contract of hire for Ray Neal since March 1972.”

The Commission’s finding with respect to control by Ray Neal over the workers cannot stand. That ultimate finding rests on subsidiary findings that Ray Neal had the right to make work assignments and change the assignments in the event of unsatisfactory work. As to the post construction cleanup, carpet cleaning and tile stripping, and window washing and general cleaning of homes, there was no evidence of any change of work assignments by Ray Neal once the original assignment was made. In the nature of these jobs, there would be little occasion for such a change, since each job was isolated and of only a short temporary duration during which time the customer himself would be in close charge. All that remains with respect to these categories is that Ray Neal did make the original assignment. As to this, the evidence shows that the worker is free to accept or reject the assignment and that rejections often occurred. The mere offer of a work assignment, which can be accepted or rejected by the worker, hardly adds up to “control” on the part of Ray Neal.

With respect to the office and church cleaning, Ray Neal did on occasion terminate the worker at a particular location and switch a different worker to that assignment. The occasion for this to happen would be when a customer became dissatisfied with the service being rendered and Ray Neal would switch workers in order to try to save the contract with the customer. This switching of a worker off of a particular job does not signify “control” in Ray Neal, but rather bespeaks control on the part of the customer. At most, Ray Neal has control only to the extent of terminating an assignment which otherwise would be taken by the customer out of the hands of both Ray Neal and the worker.

In its brief, the Commission tries to change holds and argues that the issue is not whether Ray Neal exercised control over the workers but whether Ray Neal “has the right to control the individuals.” If recourse is to be had to anything outside of the actual working operations shown by the evidence, such additional reference can only be to the written contract between Ray Neal and each worker. This standard contract, makes it quite clear that it is the customer, not Ray Neal, who has the right of control. Paragraph 2 provides that all cleaning must be “per check list in order to pass customer’s inspection” and that payment depends upon cleaning “to the customer’s satisfaction.” There is no evidence that Ray Neal ever prepared any check list mentioned in Paragraph 2, and the fair inference from the record as a whole is that the check list for each job is that of the particular customer. Nowhere in this contract does Ray Neal receive the right to specify details of the work to be done, to supervise the quality of the performance, or in any other way to control the work by the worker. Rather, the contract contemplates supervision and control by the customer of each particular job.

The Commission fares no better with respect to the second statutory test relating to the type and place of work. In order to meet this test, Ray Neal had to prove either that the services performed by the workers in question were outside the usual course of Ray Neal’s business, or that the service was performed outside of all of the Ray Neal places of business. Ray Neal does not pretend that these services were outside the usual course of its business, but it does vigorously contend that the evidence shows that all service was performed outside of any place of business of it. To answer this, the Commission is forced to the farfetched argument in its brief that Ray Neal “must send workers out to the buildings and offices. And it is at these sites that the Appellant actually operates its business. These sites are the Appellant’s places of business.” The quoted argument is not supported by any finding made or adopted by the Commission; and if such a finding had been made, it would have been too unrealistic to receive judicial approval.

There remains for consideration the third and final part of the statutory test which requires that for a worker to be an independent contractor he must be “engaged in an independently established trade, occupation, profession or business.” The Commission in its brief before this court argues that “[t]he facts of this case do not show that the individuals in question were operating their own businesses apart and independent of the Appellant.” That may be quite true; but the trouble is that neither the Appeals Tribunal nor the Commission made any finding in this respect. As stated by this court in Lincoln County Memorial Hospital v. Missouri State Board of Mediation, 549 S.W.2d 665, l.c. 670 (Mo.App.1977), argument by counsel in the brief, no matter how persuasive, cannot adequately substitute for missing findings which the administrative agency failed to make.

For sake of completeness, mention should be made of one further matter. Ray Neal introduced evidence to show that one Keith Rudolph made application for unemployment compensation and showed Ray Neal as his former employer, but that said claim was denied by the Missouri Division of Employment Security for the reason that “the claimant was self-employed.” However, there is no evidence in the record to show what kind of work Rudolph did or what kind of special circumstances may have surrounded it. In any event, the rejection of Rudolph’s claim cannot be binding in the present proceeding.

The judgment is reversed and this cause is remanded to the, circuit court with instructions to remand the proceedings to the Commission for the purpose of giving it opportunity to make findings as to whether the workers in question were engaged in an independently established trade, occupation, profession or business.

All concur.

      . This and all other statutory references are to RSMo 1969.


author: SOMERVILLE, Judge.

text:
    In the Interest of Danny Duane DIMMITT and Denise Jeanne Dimmitt, children under the age of seventeen.
    No. KCD 29249.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      Scott 0. Wright, Brown, Wright, Will-brand & Simon, Columbia, for appellant and natural father, Danny Lee Dimmitt.
    Michael W. Mulford, Kirksville, Larry S. Phillips, Edina, for respondents and maternal grandparents, Mr. and Mrs. Aldace Naughton, Jr.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This is an appeal by Danny Lee Dimmitt (Danny), the natural father of minor children Danny Duane Dimmitt and Denise Jeanne Dimmitt, from a judgment entered by the Circuit Court of Macon County, Missouri, Juvenile Division, declaring Danny Duane and Denise Jeanne to be neglected children and placing them “in the custody of their maternal grandparents, Mr. and Mrs. Aldace Naughton, Jr., under the supervision of the Juvenile Officer . . . .”

The court below found the children to be neglected as specified in Section 211.-031(l)(a), RSMo 1969, solely by reason of the fact that certain weekly child support payments, which Danny was ordered to pay under a final decree in a prior dissolution of marriage proceeding, were in arrears.

Although amended by Laws 1976, Section 211.031(l)(a), RSMo 1969, in effect at the time the instant proceeding was initiated and heard, provided so far as here pertinent, as follows:

“211.031. Jurisdiction of juvenile court over children who are neglected or charged with crime
Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings:
(1) Involving any child who may be within the county who is alleged to be in need of care and treatment because:
(a) The parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; except that reliance by a parent, guardian or custodian upon remedial treatment other than medical or surgical treatment for a child shall not be construed as neglect when the treatment is recognized or permitted under the laws of this state; . . ”

The natural father’s principal contention on appeal is that notwithstanding his failure to keep the child support payments current the children were not “neglected” within the purview of Section 211.031(l)(a), supra, hence, a necessary prerequisite was missing for vesting the Juvenile Division of the Circuit Court of Macon County, Missouri, with jurisdiction to take the children from him and place them in the custody of their maternal grandparents. The natural father alternatively argues that “petitioners failed to sustain their burden of proving that the natural father was an unfit person to have custody of his children.”

A verbal montage of the facts reveals that Danny Duane and Denise Jeanne are the progeny of a teen-age marriage, their father and mother having married when they were sixteen and seventeen years of age, respectively. Danny Duane was born October 13, 1967, and Denise Jeanne was born November 13, 1969. In 1971 the family moved from Macon County, Missouri, to Columbia, Missouri. Around May of 1972 Patricia Naughton Dimmitt (the mother) began experiencing mental health problems and from then on until her death some three years later she was in and out of the Mid-Missouri Mental Health Center in Columbia and the State Mental Hospital in Fulton seeking treatment. Her condition, diagnosed as schizophrenia, frequently manifested itself in bouts of severe depression. In view of the problems besieging the young couple, Danny’s parents moved to Columbia, Missouri, to assist him in caring for the children. Following one intermittent period of hospitalization (October, 1973), Patricia went to Macon County to live with her parents, Mr. and Mrs. Aldace Naughton, Jr. During the latter part of the summer of 1974, the children went to Macon County to visit their mother and their maternal grandparents. They were never returned to their father, who was still living and working in Columbia, Missouri.

Contemporaneously with Patricia’s developing mental health problems, the young couple began experiencing marital problems which eventually culminated in the dissolution of their marriage. The dissolution of marriage proceeding was initiated by Patricia in the Circuit Court of Macon County, Missouri, while she had the children with her and resulted in a final decree entered in February of 1975, which, inter alia, awarded custody of the two minor children to her and ordered Danny to pay $25.00 per week child support.

Patricia spent most of the winter of 1975-76 in the State Hospital at Fulton, Missouri. She returned to the State Hospital in Fulton, Missouri, during the summer of 1976 as a patient and died there on July 15, 1976. From the fall of 1974 until Patricia’s death on July 15, 1976, the children stayed with and were looked after by their maternal grandparents in Macon County during the periods their mother was hospitalized.

From February 1975 (the date of the decree in the dissolution of marriage proceeding) to July 1976 (the date of Patricia’s death) Danny paid $875.00 in child support payments. Beyond question, certain payments were in arrears. However, during the period just mentioned Danny voluntarily furnished clothing to the children in the amount of $305.00, maintained medical and hospital insurance coverage on them, and paid a $675.00 dental bill incurred on behalf of Danny Duane. He regularly visited the children two or three times a month at which time he would take them to Columbia to spend the weekends with him.

Notwithstanding Danny’s failure to meet all of the child support payments, there is not a scintilla of evidence that the physical, mental and emotional needs of Danny Duane and Denise Jeanne were ever neglected while they were with Danny, their natural father, or while they were with their maternal grandparents. In the same vein, the love and affection possessed by both Danny and the maternal grandparents for the children, and the sincere desire of each to have custody of them, stands unquestioned and beyond reproach. The evidence further discloses that each has the ability to provide and care for the children.

A few days after Patricia’s death, and more particularly on July 31, 1976, Danny went to Macon County to get his son and daughter and take them to Columbia, Missouri, for the purpose of providing a home for them. While in the process of doing so the Juvenile Officer of Macon County, apparently at the suggestion and insistence of the maternal grandparents, informed the Circuit Court of Macon County, Juvenile Division, that Danny Duane and Denise Jeanne appeared to be neglected children within the purview of Section 211.031(l)(a), supra. The court, after conducting a preliminary inquiry, placed the children under the supervision of the Juvenile Officer, with directions to place them in the temporary custody of the maternal grandparents “pending a hearing and subject to further order of the Court.” Section 211.081, RSMo 1969. Danny left Macon County with the children before a copy of the order could be served upon him. However, a copy of the order was subsequently served upon Danny in Boone County on July 26, 1976, and on the same date the children were returned to Macon County. On July 30, 1976, the Juvenile Officer of Macon County filed a petition asking the Juvenile Division of the Circuit Court of Macon County to assume jurisdiction of the children pursuant to Section 211.031(l)(a), supra. Following a hearing, the complained of judgment was entered.

Section 211.031(l)(a), supra, legislatively recognizes the power of the state, acting by and through the Juvenile Division of the Circuit Court in the capacity of par-ens patriae, to assume direction, control and custody of minor children when certain carefully prescribed conditions are found to exist. However, it is not within the province of the juvenile courts to determine generally what conditions or exigencies warrant their intervention between parent and child. Establishing the nature and limit of the conditions and exigencies which warrant judicial intervention is a legislative prerogative as reflected by the firmly accepted principle that “juvenile courts are courts of limited jurisdiction and may exercise only such powers as are conferred by statute.” In Re A_ N_, 500 S.W.2d 284, 287 (Mo.App.1973).

The legislature has responsibly exercised its prerogative by wisely refraining from vesting juvenile courts with broad, unlimited authority to intervene between parent and child. In doing so it has evinced awareness of a misty but irrefutable truth — immeasurable intangible values are attached to the relationship between children and their natural parents which cannot be supplied by others regardless of how exemplary their intentions may be. Indirect recognition of this fundamental truth is exemplified by cases such as In Re I. M. J., 428 S.W.2d 18, 22 (Mo.App.1968), wherein the court was prompted to note that “[i]t is not the purpose of statutory neglect proceedings to find substitute or foster parents for children; the State has an interest in the integrity of the family, and in such proceedings parental rights should be limited only ‘to the extent necessary to achieve the most desirable goal, wherever possible, of reinstating the natural and normal parent and child relationship.’ ” The right of natural parents to have custody of their minor children, unless their welfare is manifestly jeopardized by reason of parental unfitness, is considered inviolate and vigilantly guarded. Ex Parte De Castro, 238 Mo. App. 1011, 190 S.W.2d 949, 959 (1945); and Tomlinson v. French Institute of Notre Dame DeSion, 232 Mo.App. 597, 109 S.W.2d 73, 75 (1937). The relationship between natural parent and child is too sacred and runs too deep to be indifferently approached or lightly interfered with.

In order to vest the Juvenile Division of the Circuit Court of Macon County with jurisdiction to intervene under Section 211.031(l)(a), supra, and divest Danny of his custodial rights as natural parent of Danny Duane and Denise Jeanne, it was incumbent upon petitioner to plead and prove that the minor children were “in need of care and treatment” because Danny did “neglect or refuse to provide proper support . or other care necessary” for their “well-being”. The wording of the statutory provision relied upon by petitioner makes it clear that before a juvenile court can deprive a natural parent of custody of his minor children two conditions precedent must be alleged and proved, namely, (1) that the minor children are “in need of care and treatment” and (2) such need has arisen because the natural parent has neglected or refused to provide “proper support” and “other necessary care” for their “well-being”. In the instant case the stark truth is the minor children were not “in need of care and treatment”. Their needs and wants, in every sense, were being supplied prior to and at the time the neglect petition was filed by their maternal grandparents who, although not their legal custodians, had de facto custody of them up to the time of Patricia’s death by reason of Patricia’s implied consent. Petitioner’s failure to prove the first essential condition precedent mentioned left the Juvenile Division of the Circuit Court of Macon County without jurisdiction to enter judgment depriving Danny of his custodial rights as natural parent of the children. The facts and holding in the case of In Re Ayres, 513 S.W.2d 731 (Mo.App.1974), are particularly apposite to this case and bear out the conclusion just reached. In the course of holding that there was insufficient evidence to support a finding by a juvenile court that a minor child was ne glected by its natural mother for the purpose of assuming jurisdiction over said child pursuant to Section 211.031(l)(a), supra, the court in Ayres stated at 735: “The basic goal of a neglect law is to prevent the social, physical, and psychological deterioration of children. None of these evils was present in this case either immediately before the petition was filed, or at the time the petition was filed, or at the time of the hearing. Here, parental care was provided by the Bensons, members of Bonnie’s extended family, who occupied a parental position in the life of the child and who has assumed this relationship voluntarily upon request. This is not the case where, the request and placement once being made, the parents, especially the mother, totally ignored the existence of the child, and showed no further parental interest and concern. Accordingly, we find no evidence to support the findings of the court that Bonnie June was a neglected child.” A startling and persuasive similarity exists between Ayres and the instant case.

With due respect for its expressed concern for the minor children involved, it nevertheless appears that the trial court placed undue emphasis upon Danny’s failure to meet all the monthly child support payments and its overemphasis of this facet of the evidence crowded everything else from consideration. Doing so strongly suggests that the trial court became primarily concerned with penalizing Danny, the natural father of the children, rather than assessing and advancing the immeasurable intangible values heretofore alluded to between children and a natural parent which time and experience have proven to be best suited, all other things being equal, for securing the ultimate well-being of minor children. To the total exclusion of proper consideration of whether the minor children were “in need of care and treatment”, the court below narrowly construed Section 211.031(l)(a), supra, as being cast solely in terms of punishing aberrant parental conduct. As a consequence of doing so, the court below, as a practical matter, intentionally or unintentionally as the case may be, improvidently seized upon Section 211.-031(l)(a), supra, as a statutory vehicle for determining conflicting claims of custodial priority between competing parties, a function totally foreign to the purpose underlying enactment of the statute.

An ever increasing trend is abroad to separate natural parents and their children for every imaginable reason. Its continued indulgence seriously jeopardizes the unique role of the family as the principal bastion of security for children. Danny’s failure to pay all monthly child support payments was relevant to the salient issue of neglect only if the children actually suffered from his failure to do so and were in fact “in need of care and treatment” prior to and at the time of hearing, which they were not under any view of the evidence. In raw core terminology, neglect statutes were never intended to surreptitiously destroy the natural custodial rights of parents of factually unneglected children. Placing minor children in an artificial, tri-struc-tured atmosphere consisting of child, foster parent and social worker should never be abstractly viewed as a priority solution.

Having concluded that the evidence totally failed to support the exercise of jurisdiction by the Juvenile Division of the Circuit Court of Macon County, under Section 211.-031(l)(a), supra, regarding custody of the two minor children, the judgment below cannot stand. As Danny’s principal contention on appeal demands this result, it is unnecessary to discuss or rule his alternative contention.

Accordingly, the judgment entered by the Juvenile Division of the Circuit Court of Macon County is reversed and the cause is remanded with instructions to said court to set aside and hold for naught its wardship and control order over the persons of minor children Danny Duane Dimmitt and Denise Jeanne Dimmitt, and all custody orders entered pursuant thereto, and to return custody of said minor children Danny Duane Dimmitt and Denise Jeanne Dimmitt to Danny Lee Dimmitt, their natural father, and, upon doing so, to dismiss said petition seeking to have said minor children declared to be neglected under Section 211.-031(l)(a), RSMo 1969.

Reversed and remanded with directions.

All concur.