text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Finis HARPER et al. (Grounds Exceptions), Defendants-Appellants.
    No. KCD 27491.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Joseph S. Levy, Richard M. Shteamer, Kansas City, for defendants-appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Darold W. Jenkins, Milton D. Skeens, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This is an appeal by condemnees from a jury trial on the issue of damages in a condemnation proceeding. Landowner appeals the jury verdict of no damages. The judgment must be affirmed. None of the issues raised on the appeal have been properly preserved.

In 1969 the State took 7.35 acres of a 52-acre tract in Cass County for a drainage ditch and outer-roadway connection with U. S. Highway 71. This tract is bordered on the east by Highway 71 and includes 6 acres which are subject to a long term lease with an oil company. The Commissioners assessed damages at $35,000, and both the condemnor and condemnees took exception. At trial the parties stipulated and agreed that 1) condemnees owned 52 acres prior to taking, 2) six of which were leased to Skelly Oil, 3) the actual land taken was 7.35 acres; 5.97 for highway purposes and 1.38 for drainage, 4) the remaining land after taking was 38.65 acres, and 5) the date of taking was July 17, 1969.

Mr. Grounds, the landowner, testified that he purchased the tract for development purposes, although the oil company lease was the only improvement to date, and that the road built by the State had interfered with his development plans. He admitted the necessity of building roads for development of the tract, estimating the cost at $50,000. He stated that he would not have put a road where the State built the new outer road. The owner’s expert witnesses estimated the damages at $128,-066.40.

The State produced two expert witnesses who testified the after-taking value exceeded the value prior to the taking. A Mr. Boton testified that the highest and best use prior to taking was 10 — 15 acre home-sites at a value of $800 per acre and that after taking, the highest and best use was smaller homesites at an increased value of $1,250 per acre. Ms. Warren testified that the prior to taking best use was suburban home tracts at a value of $800 per acre, and the after taking best use was light commercial at $1,200 per acre. There was no objection to this testimony.

Landowner first claims in a generalized point that the jury considered evidence of special benefits and that such special benefits are in contravention of Article 1, Section 26 of the Missouri Constitution. He further contends that the allowance of 6% interest on the excess of the Commissioners’ award over the verdict as required by Section 523.045 RSMo 1969 offends against the same constitutional provision.

These issues have not been preserved for appellate review. Nowhere in the transcript, including the motion for new trial, were either of these points raised. Constitutional questions must be raised at the earliest opportunity and renewed in the motion for new trial. Oliver v. City of Higginsville, 527 S.W.2d 690 (Mo.App.1975); Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo.1964); State v. Northup, 367 S.W.2d 512 (Mo.1963); City of St. Louis v. Gruss, 263 S.W.2d 387 (Mo. 1954); Jacobs v. Leggett, 295 S.W.2d 825 (Mo. banc 1956); City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 (Banc 1949). In any event, on the first point, Section 227.120(13) RSMo 1969 specifically authorizes the consideration of “benefits” and authority of the Supreme Court recognizes the validity of the statute and the propriety of the jury’s consideration of evidence of “special benefits.” State ex rel. Farren v. City of St. Louis, 62 Mo. 244 (1876); Jackson County v. Waldo, 85 Mo. 637 (1885); Dougherty v. Brown, 91 Mo. 26, 3 S.W. 210 (1887); State ex rel. State Highway Commission v. Baumhoff, 230 Mo.App. 1030, 93 S.W .2d 104 (1936); Thomson v. Kansas City, 379 S.W.2d 194 (Mo.App.1964), aff’d Thomson v. Kansas City, 384 S.W.2d 518 (Mo. banc 1964).

On the second issue, the constitutional question posed has been answered authoritatively (State ex rel. State Highway Commission v. Paul, 368 S.W.2d 419 (Mo. banc 1963)), and there is no merit in the landowner’s claim.

Landowner claims error in Instruction No. 5 because it failed to describe the specific improvement as required by MAI 34.-03.

Instruction No. 5 provided:

“In determining the value of defendants’ remaining property, you must not consider any general benefit which is conferred upon all property within the useable range of the new highway." (Emphasis supplied.)

Landowner asserts that this confused the jury and allowed them to consider “general” benefits accruing from the outer roadway and drainage ditch since it appears to refer to U. S. Highway 71. The argument appears to be that if the jury understood “new highway” to mean U. S. Highway 71, then there was no withdrawal of “general” benefits accruing from the outer roadway and drainage ditch.

This claim of error has not been preserved for our review.

Objections to instructions must be included in the motion for new trial. A general statement of error in the motion for new trial is sufficient if there was specific objection at trial. Otherwise, there must be specific objection in the new trial motion to preserve the error for appellate review. Rules 78.07, 84.13(a); Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975). “[I]n order to preserve for appellate review a challenge to an instruction, specific objections must be made either at the time of trial or in the motion for new trial (citing predecessor to Rule 78.-07).” Moll v. Springdale Park, Inc., 395 S.W.2d 126 (Mo.1965). The transcript shows that appellants excepted and objected to instruction No. 5, but no grounds therefor are shown and “we may not assume that the reasons expressed to the trial court were the same as those now urged upon appeal.” Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 605 (Mo. App.1970). The error not having been presented to the court below is not preserved.

The State in its brief makes some reference to the possibility that the omission of a claim of error as to Instruction 5 was a “typographical error.” This is not claimed by the landowner, and an examination of the motion for new trial does not disclose any claim of error as to any instruction which could conceivably afford a basis for the attack now made.

The record has been reviewed in its totality. The evidence, both testimonial and by exhibit, discloses nothing to lend factual support to the landowner’s claim that the jury might have understood the phrase “new highway” as referring to U. S. Highway No. 71.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the MARRIAGE OF Baltazara L. SIMPELO, Respondent, and Rustico V. Simpelo, Appellant.
    No. KCD 27601.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Walter A. Raymond, Kenneth C. West, Paul R. Shy, Kansas City, for appellant.
    C. David Whipple, William O’Neill Eisler, Ronald L. Kraft, Kansas City, for respondent.
    SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ.
   PER CURIAM.

The husband has appealed from a decree entered in a dissolution of marriage proceeding. Two of the six points asserted by him on appeal haunt virtually every appeal reaching this court in dissolution of marriage proceedings — excessiveness or inadequacy, as the case may be, respecting divisions of marital property, and excessiveness or inadequacy, as the case may be, respecting amounts awarded for child support.

One of the points asserted by the husband will be set forth verbatim, other points will be amalgamated and paraphrased in part as one point, and the remaining points will be separately paraphrased. A ratiocinative approach to disposition of the various points, except for the first point, suggests that they not be addressed in numerical order.

The husband’s first point reads as follows: “This court-tried case is to be tried de novo on this appeal. (Rule 73.01, Missouri Rules of Civil Procedure.)” It is an abstract statement of law and preserves nothing for appellate review. Rule 84.-04(d); and Roberts v. Roberts, 515 S.W.2d 805, 806 (Mo.App.1974). Literally read, it is also an erroneous statement of law in view of the recent construction given Rule 73.01 in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976): “[A]ppellate ‘review * * as in suits of an equitable nature,’ as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.”

The husband appears to contend, after amalgamating two of the points raised by him, and paraphrasing them in part, that paragraph 9 of the decree was nothing more than compensation to the wife for “past domestic services” foreign to and beyond the purview of Section 452.330, RSMo Supp.1973, thereby stamping the “decree” with all the attributes of an “ex post facto law” in violation of Article I, Section 13, Constitution of Missouri, because it deprived him of his vested right to the “domestic services” of his wife during marriage. Paragraph 9 of the decree reads as follows:

“The Respondent [husband] shall pay to the Petitioner [wife] the sum of Thirty-five Thousand ($35,000.00) Dollars for her interest in the medical practice and contribution to the marriage. Said amount shall be paid Seven Thousand ($7,000.00) Dollars per year for a period of five years. First payment due January 1, 1975, and on the 1st day of January of each year thereafter.”

Certain explanatory facts are called for at this time. The husband and wife were both licensed to practice medicine in the State of Missouri on an unspecified date in 1971. Trial of this dissolution of marriage proceeding occurred on September 18, 1974. Between 1971 and September 18, 1974, the husband regularly practiced his chosen profession. During the same period the wife practiced her chosen profession to the extent compatible with her duties of rearing four minor children born of the marriage. For a period of time prior to their separation, the husband and wife were jointly engaged in the practice of medicine.

In order to breath life into the amalgamated point, the husband summarily assumes that paragraph 9 of the decree can only be construed as tantamount to recompensing the wife for “domestic services” rendered to the husband during the marriage. After taking this arbitrary stance, he makes a bifurcated assault on paragraph 9 of the decree. On one hand, he contends that it bears no relationship to the division of marital property within the contemplation of Section 452.330, supra, and, on the other hand, he contends that it represents compensation to the wife for “past domestic services” and, as such, constitutes an “ex post facto law” in violation of Article I, Section 13, of the Constitution of Missouri. Even though certain language found in paragraph 9 may, at first blush, appear to be imprecise, and perhaps subject to being semantically criticized, this court is unconvinced that paragraph 9 of the decree is inexorably doomed to the arbitrary construction placed upon it by the husband. The strained and tortuous construction unilaterally given to it by the husband is rejected. Reasonably construed in the context of the record as a whole, and, particularly, the remaining portions of the decree, this court believes that it related to and represented part of the overall division of marital property. Any other construction would subvert the intent of the trial court as revealed by the decree in its entirety. So construed, it was obviously predicated upon subparagraph (1) of paragraph 1 of Section 452.330, supra, “[t]he contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker”, a statutorily prescribed “relevant factor” for consideration in arriving at a “just” division of marital property.

The remaining aspect of the husband’s bifurcated point is likewise untenable. Proceeding on the same arbitrary assumption, i.e., that paragraph 9 of the decree is subject only to the construction that he gives it, he contends that it constitutes an “ex post facto law” in violation of Article I, Section 13, Constitution of Missouri, because it requires him to compensate his wife for “domestic services” during the marriage to which he was inalienably entitled. This argument has a hollow ring because, if for no other reason, paragraph 9 of the decree is not subject to the arbitrary construction placed upon it by the husband. Moreover, assuming, arguendo, that paragraph 9 is subject to the argumentatively unyielding construction advanced by the husband, this aspect of his bifurcated point is nevertheless fallible for a multiplicity of peripheral reasons. The constitutional proscriptions contained in Article I, Section 13, Constitution of Missouri, apply to legislative enactments rather than to judicial decrees and judgments. Hilgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S.W. 1070, 1072 (1903); and State ex rel. Clark v. Shain, 343 Mo. 66, 119 S.W.2d 971, 972-73 (banc 1938). It should be noted that the husband attacks the constitutionality of the “decree”, not the constitutionality of Section 452.330, supra. “Ex post facto” laws constitutionally proscribed by Article I, Section 13, Constitution of Missouri, refers to laws which are criminal in nature as opposed to those which are civil in nature. State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632, 638 (banc 1942); and State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 900 (banc 1950). In conclusion, the husband’s attack on the constitutionality of the decree, emerging as it did for the first time on appeal, is relegated to judicial oblivion because it was not timely raised. Nixon v. Nixon, 525 S.W.2d 835, 838 (Mo. App.1975); and Oliver v. City of Higginsville, 527 S.W.2d 690, 694-95 (Mo.App.1975).

Even if the husband’s constitutional attack is viewed as (1) directed against Section 452.330, supra, rather than the decree itself, and (2) on the basis of being retrospective in its operation as opposed to constituting an “ex post facto law”, and (3) was otherwise timely raised, the husband, so far as his appeal in this case is concerned, appears to concede that the construction placed upon paragraph 9 of the decree by this court relieves it of any constitutional infirmity. This conclusion is gleaned from the following statement contained in the husband’s brief: “There is nother in this section [Section 452.330, RSMo Supp.1973] which gives indication it was to have application to other than the marital property accumulated during the marriage and its proper division between the husband and wife. Applied in its clear and unambiguous language this statute would be Constitutional and legal.” This court does not purport to pass judgment upon the constitutional correctness of this statement because it is unnecessary to do so in the context of this appeal.

The husband appears to alternatively contend, should paragraph 9 of the decree be construed as effecting a division of the marital property, that the overall share set over to the wife was excessive and unsupported by the evidence, and evidenced an abuse of discretion on the part of the trial court. In fairness to both the husband and wife, neither presented evidence during the trial facilitating a clear and easily discernible picture of the nature and value of the marital property involved. The trial court, as has this court, had to sift through an array of evidence, presented in most instances in a piecemeal and imprecise fashion, in order to determine the marital property involved, its reasonable value, and a just division thereof. Using the “relevant factors” spelled out in subparagraphs (1), (2), (3), and (4) of paragraph 1 of Section 452.330, supra, as a template for measuring the evidence, this court concludes that the trial court effected a “just” division of the marital property. Reciting the supportive evidence in detail would have no preceden-tial value. It is sufficient however to free the trial court from the husband’s charge that it abused its discretion in arriving at the amounts awarded the respective spouses in the division of the marital property. As stated in Conrad v. Bowers, 533 S.W.2d 614, 623 (Mo.App.1975), “[t]he division of property between the husband and wife upon dissolution is a subject peculiarly within the discretion of the trial court, and its decision will not be overturned except for an abuse of discretion.” See also In Re Marriage of Powers, 527 S.W.2d 949, 951 (Mo.App.1975).

Four children were born of the marriage. At the time of trial the children were, respectively, 10, 6, 5, and 4 years old. The trial court awarded the wife custody of the four minor children and $1,500.00 per month for their support. The husband impugns the amount awarded as being “so grossly excessive as to constitute an abuse of discretion”. Section 452.340, RSMo Supp.1973, sets out the factors to be considered when determining the amount of child support to be awarded:

“In a proceeding for . . . dissolution of marriage . . . the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
(1) The father’s primary responsibility for support of his child;
(2) The financial resources of the child;
(3) The financial resources of the custodial parent;
(4) The standard of living the child would have enjoyed had the marriage not been dissolved;
(5) The physical and emotional condition of the child, and his educational needs; and
(6) The financial resources and needs of the noncustodial parent.”

Briefly, the record discloses that the wife presented the monthly living expenses of herself and the four children collectively without any separation or breakdown between her monthly living expenses and those of the four children. Based on her own figures, monthly living expenses for herself and the four children, in order to maintain their present standard of living, approximated $2,300.00. The children had no resources of their own. The wife was awarded $1.00 per year for maintenance since she had a net monthly income of approximately $1,000.00 from the practice of her profession. The husband had an adjusted gross income of $57,747.02 in 1972 and $61,614.64 in 1973. Balancing all of the facts just mentioned with the “relevant factors” listed in Section 452.340, supra, this court is impelled to conclude that the monthly amount awarded to the wife for child support, to-wit, $1,500.00, is excessive to the extent of $200.00 per month, and that $1,300.00 per month represents a “reasonable and necessary” amount for support of the four children. On its face, the $1,500.00 awarded for child support exceeded the amount claimed by the wife as being “reasonable and necessary” and was unsupported by the evidence. To the extent mentioned, the trial court abused its discretion in awarding $1,500.00 per month to the wife for child support.

As pointed out by the husband in his brief, that portion of the decree awarding child support is remiss in still another respect. With respect to the $1,500.00 per month awarded to the wife for child support, the decree provided that “. . . in no case will said payments extend beyond the 24th birthday of any child.” The husband contends, and properly so, that the trial court exceeded its jurisdiction in extending support payments for .said children beyond the time they respectively reach twenty-one years of age. Authority for the husband’s contention is found in Block v. Leiberman, 506 S.W.2d 485, 486-87 (Mo.App.1974):

“. . . The power and jurisdiction of a divorce court to review or make alterations of its orders touching the maintenance of the minor children ceases with such minority. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762 (Banc.1932). The award of child support, although made to the mother, is for the benefit of the children, who because of their minority, lack the legal status to bring suit directly against their parent.
“When the child reaches twenty-one however, this disability is removed and if an obligation to provide support exists, the child may proceed in his own right in a separate suit to establish such obligation. See State ex rel. Kramer v. Carroll, 309 S.W.2d 654 (Mo.App.1958). . . . The power of the court in the divorce action to provide for support of the child terminates when the child reaches 21.

See also Nixon v. Nixon, supra, 1. c. 839, decided subsequent to State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo.banc 1974), wherein the Supreme Court held Senate Bill No. 438, 77th General Assembly (1974), fixing the age of majority at eighteen, to be unconstitutional, as constituting authority for the proposition that jurisdiction for awarding child support in a dissolution of marriage proceeding extends to, but not beyond, the time a child becomes twenty-one years of age.

Those portions of the original decree entered September 19, 1974, relating to the amount and duration of the award for support of the four minor children are set aside with directions that the trial court enter a decretal provision in lieu thereof awarding the wife $325.00 per month per child for support of the four minor children, payable monthly on the first day of each and every month hereafter, provided, however, that any payment with respect to a particular child shall terminate when said child becomes emancipated, or reaches twenty-one years of age, whichever occurs first; in all other respects the original decree entered September 19,1974, is affirmed. The cause is remanded to the trial court with directions to enter a new decree consistent with this opinion.

All concur.


author: SWOFFORD, Judge.

text:
    Theodore L. WILLIAMS, Appellant, v. Beverly A. WILLIAMS, Respondent.
    Nos. KCD 27666, KCD 27737.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Allan J. Fanning, Kansas City, for appellant.
    Clem W. Fairchild, David R. Dill, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The parties to this appeal were divorced on October 15, 1968, and the wife-respondent was awarded the custody of four minor children. The record discloses that on the same day this divorce decree was entered the parties entered into a Separation Agreement settling their property interests. While this agreement was not introduced into evidence in the present proceedings, it is attached to an early motion to modify the award, and it is conceded by the parties that according to its terms, the husband-appellant agreed that the respondent be awarded the custody of the four minor children and that he would pay the sum of $81.25 per month, per child for their support and maintenance. In addition, it was agreed that the home residence and all of the furniture and fixtures therein would be transferred to a trustee to be held in trust for the use and occupancy of the parent having custody of the children until the “youngest child attained age 21 years or was sooner emancipated and leaves home.” It was further provided that the appellant would pay all mortgage installments, taxes, insurance, maintenance and repairs on the home.

While there is nothing in the record before this court to show that the trial judge in the 1968 divorce proceeding had any knowledge of or gave any approval to such agreement and it was not incorporated as part of the divorce decree, the court did award custody of the children to the respondent and ordered the appellant to pay the sum of $81.25 per month, per child, for their support.

These consolidated appeals arise from a series of events occurring after the divorce, which must be noted in order to place this matter in proper perspective for determination. In June of 1969, the respondent filed her motion to modify the support award and to set aside the separation agreement in which she alleged that the execution of such agreement was induced by false representations made to her by the appellant. No action was ever taken on this motion. On February 12, 1971, the respondent filed her motion to set aside or in the alternative to modify the divorce decree; on August 21, 1974, she filed her motion to modify the decree; and on September 4, 1974, she filed an amended motion to modify the decree in which she asked for an increase in the child support and for attorney’s fees. In this latter motion, she alleged that the appellant had failed to pay the various items relating to the home residence as provided in the separation agreement. It is this motion of September 4, 1974 which was ruled by the trial court.

Sometime after the divorce decree was entered, the appellant filed his motion for a change of custody of the children to him. This motion is not included in the transcript, so that the exact date of filing and its precise allegations are not known and are of no particular significance for the reason that the court below denied that motion and the appellant did not appeal from that ruling.

Evidence was heard in the court below on September 3 and 5, 1974, and at the outset, the court stated and counsel agreed that the scope of such hearing was to be limited to the matter of the custody of the three minor children (one child had become emancipated since the divorce) and of their support and maintenance. Also, the court with the agreement and stipulation of counsel, reserved for future determination the matter of respondent’s request for attorney’s fees.

No useful purpose can be served by a recounting of the evidence adduced except to note that the appellant had not made the mortgage payments or paid the taxes, insurance, maintenance or repairs on the home occupied by the respondent and the children. Foreclosure on the home was averted by the appellant’s father, who purchased the mortgage frohi the holder thereof, but the encumbrance on the home was still unpaid.

On October 4, 1974, the trial court filed its written memorandum opinion and orders overruling the appellant’s motion for change of custody and increasing the child support to $200.00 per month, per child. The court further made a finding that the motion of the respondent to set aside the separation agreement had been abandoned and therefore overruled such motion, without prejudice. The appellant thereafter and on November 13, 1974, filed his notice of appeal from the judgment increasing the child support, but as noted above, did not appeal from the denial of his motion for change of custody, and such appeal is lodged in this court as No. KCD 27,666.

At the time of the evidentiary hearing, the record discloses that counsel for appellant objected to the request of the respondent to amend her motion to modify so as to request an allowance of attorney’s fees. The record discloses the following notation by the court:

“Hearing on motions of petitioner (appellant) and respondent commenced September 3,1974. Hearing resumed September 5, 1974 and concluded except for question of allowance of attorney fees to respondent’s counsel. Stipulated that court may decide present issues and reserve for future determination matter of receipt of amended motion and reopening of respondent's case for evidence on fees.
S/ Donald B. Clark, Judge
Dated September 5,1974” (Emphasis supplied)

In its judgment of October 4, 1974, the court ordered that the respondent file an application and supporting affidavits for the allowance of attorney’s fees within 10 days, and granted the appellant 10 days thereafter to respond. On October 15,1974, the respondent filed her application for the allowance of fees, supported by a detailed affidavit of her counsel showing the work and time records of his law firm in behalf of respondent since August 19, 1974, totaling 38.3 hours, at hourly rates of $20.00 to $50.00 an hour, for a total charge of $1458.50 plus $23.95 in expenses. The appellant made no response to this motion and affidavit, and on November 18, 1974, the court “supplemented” its order of October 4,1974 by awarding the respondent the sum of $1482.45 as attorney’s fees and expenses upon the grounds that appellant had conceded this issue by failing to oppose the request or contesting the factual affidavit in support thereof. The appellant filed his notice of appeal from this order on December 23, 1974, and such appeal is lodged in this court as No. KCD 27,737. As above noted, these appeals were consolidated and so briefed and argued.

The points relied on by appellant do not lend themselves to ready or clear analysis. There are ten in number, some without citation of authorities, and are frequently overlapping and repetitious. Careful study against the somewhat intricate and perplexing background of the trial record permits appellant’s points to be considered in three main assignments of error.

First, the appellant complains that the court erred and abused its discretion in considering the separation agreement between the parties in awarding an increase in child support and the breach thereof by appellant (Points I, II, III, V and VI). Second, there was no substantial and sufficient evidence of a change in condition of the parties to warrant an increase in child support (Point IV). Third, the appellant asserts that the trial court erred and abused its discretion in granting respondent attorney’s fees (Points VII, VIII, IX and X).

The charge of error based upon the fact that the trial court should not have considered the separation agreement or the appellant’s breach thereof does violence to the clear obligation of the court to place the interests and welfare of the children as its paramount consideration. It has long been the law in this state that while parents can properly settle their property interests by contract, including provisions with reference to child support, their agreements as to the children are not binding on the court in a divorce proceeding but are merely advisory. McCann v. McCann, 448 S.W.2d 323, 326[5] (Mo.App.1969); Houston v. Snyder, 440 S.W.2d 156, 169[5] (Mo.App.1969). Parents cannot contract away the right of children to look to their parents for support, and any such agreement does not affect the power and duty of the court to determine the matter of child support. Roberts v. Roberts, 292 S.W.2d 596, 599[7-9] (Mo.App. 1956). Even though the terms of a separation agreement with regard to child support are adopted by the court and incorporated into a divorce decree, the court is not deprived of its authority to thereafter modify such support award, as changed conditions may warrant. Green v. Green, 234 S.W.2d 350, 351[1] (Mo.App.1950); Messmer v. Messmer, 222 S.W.2d 521, 524[2] (Mo.App. 1949); Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143, 145[3] (1947). These fundamental principles with reference to child support are given statutory recognition under the new Dissolution of Marriage Act, Sections 452.325, subd. 2; 452.325, subd. 4(2); and 452.325, subd. 6, Laws 1973, p. 470, Section 6, effective January 1, 1974.

During the course of the proceedings in the trial court it was repeatedly clear that the court was considering the separation agreement between the parents only as it bore upon the support needs of the children. For example, the court at one point advised counsel:

“I am considering it (the separation agreemént) only in the financial aspect, that is what resources are available, and I am not called upon to rule either upon the fairness of the agreement or whether it is or is not enforced. * * * ”

Of course, a vital element of the support of any child is housing, a house in which to live. The court below was faced with the inescapable fact that this element of support incorporated in the agreement was withdrawn by the appellant. The only means whereby this void could be filled by the trial court was to increase the amount of cash support so that housing could be supplied by the respondent at the home residence or elsewhere. Other factors incorporated in the settlement agreement directly affecting the support and maintenance of the children of which the court properly took notice, were medical and dental care and education. The trial court did not abuse its discretion by reference to the separation agreement and its breach by the appellant to that limited extent. None of the authorities cited and relied upon by appellant command a different conclusion. Points I, II, III, V and VI are ruled against appellant.

Appellant’s position that no change of circumstances was shown which justified the modification proceeding is likewise untenable. What has already been discussed with reference to the housing difficulties encountered by the respondent as a result of the failure of appellant to assure the security of the home justified, and, indeed, required a reassessment of the support and maintenance requirements of the children. Additionally, the appellant by filing and pursuing his motion to modify the custody award in the divorce proceedings, admitted the fact of changed conditions so as to invoke the jurisdiction of the court to resurvey the entire matter with reference to and emphasis upon the welfare of the children. Point IV is ruled against the appellant.

The matter of allowance of attorney’s fees is now reached. The appellant’s complaints in this regard boil down to the fact that he was not afforded an evidentia-ry hearing on this matter and that the court lacked jurisdiction because more than 30 days had elapsed since the initial order of October 4, 1974, and that such order had been appealed.

There is abundant indication in the record that the postponement of the determination of attorney’s fees or the ultimate denial thereof was a matter of agreement or stipulation between court and counsel, as indicated by the record made by the court as part of the file on September 5, 1974, as above quoted. The record as to this matter contains long colloquies between court and counsel with reference to the handling of this matter. There can be no doubt but that counsel for appellant strongly objected to the late request for or any allowance of attorney’s fees to respondent. The culmination of these discussions appears as follows:

“THE COURT: What I want to avoid in that particular, Mr. Fanning, is that there be no prejudice or advantage to either party by reason of a decision being given on the present issues and in the question of attorneys fees as well as the appropriateness of the receipt of the amended motion and the reopening of the case would not be adversely affected by an, in effect, a partial decision.
MR. FANNING: (Counsel for Appellant) That’s what I understand.
THE COURT: And that’s acceptable to you?
MR. FANNING: Yes, I understand that. I am not going to raise as a defense to a subsequent request or hearing for attorneys fees for this matter the fact that it wasn't entered as part of the order that you made in reference to the other issues.” (Emphasis supplied)

Upon the filing of the motion and supporting affidavit, above described, the appellant made no response by way of a legal brief in opposition to the allowance (which the court had suggested be filed) of coun-teraffidavits or any request for an eviden-tiary hearing. While the procedures here employed cannot be recommended for the determination of legal fees in matters of this nature, under the circumstances of this case the allowance will not be disturbed. The evidence is clear that the respondent is without funds or resources to compensate her attorney. The procedures were in accordance with an agreement of counsel as to the separate judgments. Points VII, VIII, IX and X are ruled against the appellant.

The whole record has been carefully reviewed and there is substantial evidence to support the trial court’s orders; they are not against the weight of the evidence; and, the court did not erroneously declare or apply the law. Murphy v. Carrón, 536 S.W.2d 30 (Mo.banc 1976).

The judgments in No. KCD 27,666 and No. KCD 27,737, are affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Carl L. WILLIAMS, Jr., Appellant.
    No. KCD 27698.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and 15ryear sentence on jury verdict finding Carl L. Williams, Jr., guilty of robbery in the first degree.

The charge against appellant was based upon a holdup which occurred at Smaks Drive-In Restaurant. Williams was identified as one of two persons who entered the restaurant at around 9:30 P.M., May 18, 1974. Williams produced a shotgun and his companion ordered employees to give him the contents of the cash register. They did so and the robbers left with approximately $100 in cash.

On this appeal the sole point raised by appellant is that the state failed to prove the venue of the offense. This contention obviously overlooks the testimony of the assistant manager of the business, as follows:

“Q * * * Is this Smaks Drive-In that you’re the assistant manager of that’s located at 79th and Troost, is that in Jackson County, Missouri?

“A Yes, sir.”

This testimony was sufficient to prove the venue of the offense. State v. Carolla, 316 Mo. 213, 292 S.W. 721, 726[4] (1926).

Judgment affirmed.

All concur.


author: FOREST W. HANNA, Special Judge.

text:
    LA MAR CONSTRUCTION COMPANY, Appellant, v. HOLT COUNTY, R-II SCHOOL DISTRICT, Respondent.
    No. KCD27729.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Alan E. South, Crews & Milliard, Kansas City, for appellant.
    Wilcox & Houts, St. Joseph, for respondent.
    Before SHANGLER, P. J., and HANNA, O’LEARY and L. SMITH, Special Judges.
   FOREST W. HANNA, Special Judge.

The respondent Holt County, R-II School District (referred to as the School District) wanted to add a new gymnasium and a classroom to the Mound City High School. It advertised for bids pursuant to Section 177.086 RSMo 1969. The “Notice to Bidders” complied with the statute and specified as follows: “The owner reserves the right to reject any or all bids and to waive any or all formalities”. In response to this invitation the School District received four bids from various construction companies and the bid submitted by plaintiff, La Mar Construction Company (referred to as La Mar) was the lowest. The School District’s Board of Education discussed the bids, the capacity of the companies submitting the bids, their experience, their performance and the time element for completing the construction and other matters. The contract was awarded to the Glaze Construction Company who was a defendant in the trial court. The trial court sustained the Motion for Summary Judgment in favor of the defendant Glaze Construction Company and that matter has not been appealed to this court.

The plaintiff’s Petition for Damages alleges in substance that it is a Missouri corporation engaged in the construction business in this state, that bids were advertised for, four bids were made, that La Mar was the lowest responsible bidder, but regardless of that fact, the contract was awarded to the Glaze Construction Company. It characterizes the School District’s award of the contract to Glaze as arbitrary, capricious and unlawful and prays for the affirmative relief that damages be awarded plaintiff La Mar, or alternatively, that the contract awarded to the Glaze Construction Company be cancelled and the contract awarded to plaintiff.

The trial court sustained the School District’s Motion for Summary Judgment.

The issue, simply stated is: Does the low and unsuccessful bidder have a cause of action against the School District for money damages where the School District by its invitation to bid by statute reserves the right to reject any and all bids? We find that in such a situation the answer must be in the negative and therefore affirm the judgment of the trial court.

The applicable statute, under which the bids were advertised is Subsection 2 of Section 177.086 RSMo 1969, and provides:

“2. No bids shall be entertained by the school district which are not made in accordance with the specifications furnished by them and all contracts shall be let to the lowest responsible bidder complying with the terms of the letting, provided that the said school district shall have the right to reject any and all bids.” (Emphasis added.)

La Mar has not and cannot state a cause of action because it cannot allege a special pecuniary interest in the matter, showing a clear legal right to the relief asked because the rejection of its bid did not give it any private right which it could enforce for two reasons. The first problem plaintiff faced was that the advertisement in the newspaper requesting bids was an invitation to bid and did not contemplate an acceptance, in a contractual sense, by a submission of a bid in response to that invitation. Secondly, the statute clearly is intended to safeguard the interest of the public and is not designed to shelter the rights of individuals, i. e., the unsuccessful bidder.

It is noted that the advertisement of the bids is headed “Notice to Bidders” and invites bids to be received by the Board of Education, Holt County, R-II School District at a specified time. The tenor of the advertisement clearly displays an intent to invite bids, or stated another way, invite offers, as distinguished from an intent to propose a contract for a direct acceptance. If there remains any doubt, the reservation that the School District makes to reject any and all bids resolves that matter. It is an invitation or an opening of negotiations to contract to which La Mar responded by making a bid (offer) and which was not accepted (in the contractual sense) by the School District. Since the School District did not accept the offer of La Mar, no contract has been made, and the rejected or unsuccessful bidder obtains no justiciable property right or any vested interest in the matter.

This matter was laid to rest by our Supreme Court in the case of Anderson et al. v. Board, etc.; of Public Schools, 122 Mo. 61, 27 S.W. 610, 612 (1894) where the court said: “That advertisement was not an offer of a contract, but an offer to receive proposals for a contract.” Further, the Court went on to state that it would make no difference as to the cause or reason for rejection of the bid because the defendant had an unconditional right to reject the bid. The Court recognized the principle of law that where a public body reserves the right to reject any and all bids that are submitted to it they are empowered to do just that and by rejecting a bid they create no vested interest or property right in the rejected bidder.

La Mar filed the lawsuit in its name alone and the Petition contains no allegations that the action was brought by the plaintiff as a member of the public or to protect the interest of the public. These allegations, together with the prayer for relief, demonstrate that La Mar considered that it had a lawful right to the contract because it was the lowest responsible bidder and that it was entitled to protect and enforce that private right.

In the case of State ex rel. Johnson et al. v. Sevier, 339 Mo. 483, 98 S.W.2d 677 (1936), the Supreme Court en banc was faced with a similar problem. That suit was brought by the plaintiffs on their own behalf and not as taxpayers or representatives of any other taxpayers against the state purchasing agent who advertised for bids for the installation of x-ray equipment. The statutory requirements controlling the purchasing agent provided that all purchases shall be based upon competitive bids, that any purchase or expenditure that would exceed $2,000.00 would require the purchasing agent to advertise and that the contract must be let to the lowest and best bidder. The statute further provided that the purchasing agent would have the right to reject any and all bids and was substantially the same as the one here. The lowest bidder was not the successful one and brought a mandamus action praying that the purchasing agent be commanded to rescind the award to the higher bidder and award it to the lowest bidder. The court held the plaintiff was not deprived of anything to which it was legally entitled and for which it could have maintained mandamus. The fact that this was an action in mandamus does not alter the principle of law applicable in either case that the statute was designed for the benefit and protection of the public and not the bidders.

La Mar has not brought this suit as a taxpayer or as a representative of other taxpayers but rather has sought relief to enforce the performance of an alleged public duty to protect an alleged private right. It is necessary for La Mar to allege a private, pecuniary interest in the matter but as an unsuccessful bidder it has no private, pecuniary interest in this matter which the law will recognize and enforce. Johnson v. Sevier, supra, l.c. 631[10]. As an unsuccessful bidder, La Mar was not deprived of anything to which it was legally entitled and therefore cannot state a cause of action.

La Mar suggests to this Court that the interest of the public can be preserved and protected by sanctioning a cause of action for damages for the unsuccessful bidders’ loss of profits from the School District. La Mar’s reasoning is to the effect that the right to recover loss of profits from a school district is a sufficient sanction to insure that the public authorities will guard the public interest. The plaintiff’s laudable purpose is lost when followed to its logical conclusion. If an unsuccessful bidder may recover its loss of profits from a school district the district is required to pay, from public funds, profits to both the unsuccessful bidder and the contractor who completed the work. This is not a means of protecting the public that is to be encouraged. Plaintiff’s argument notwithstanding, we express no concern but that an aware public will become aroused and angry at the least suspicion of the misuse of its money and particularly, in the case of a school district.

Nothing herein should be construed to indicate that the public is not afforded the statutory mechanics to protect itself from abuses of public officials. Safeguards for the public protection are built into the statute and they require that a school board exercise its discretion responsibly. The rejection of the lowest bid must not be made fraudulently, corruptly, capriciously or without reason. The officials must exercise and observe good faith and accord all bidders just consideration, avoiding favoritism and corruption. If any of these standards are violated the public, as the real, moving party, may bring mandamus to enforce cancellation of the contract and its award to the lowest responsible bidder. State ex rel. Black v. Wilson, 158 Mo.App. 105, 139 S.W. 705, 709[4] (1911).

This case has been considered primarily as one asking for money damages although La Mar has alternatively sought cancellation of the contract award to Glaze Construction Company and the award of the contract to it. This prayer for relief in the nature of an action of mandamus should be discussed briefly. It is noted that the suit is not brought in the name of the state or sovereign as required in this type of action and that the plaintiff did not request of the trial court and therefore the trial court did not issue an alternative writ which constitutes the first pleading framing the issues of a mandamus action. Technically that writ is required before there is formally pending a mandamus action. State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011 (1930). Since it has been agreed that the contract awarded to Glaze Construction Company has been fully performed and because of the absence of any argument in the brief or orally before this court by plaintiff requesting cancellation of the contract to Glaze, we consider this matter as in the first instance, not an issue and secondly, if an issue, abandoned. Nevertheless, the recognized principles of law announced in this opinion are applicable irrespective of the relief requested.

The judgment of the trial court is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    Gladys J. Benson SMITH, Plaintiff-Appellant, v. Harry L. BENSON and Fern H. Benson, Defendants-Respondents, Florence S. O’Brien, guardian of the person and Estate of Russell H. Baker, an incompetent, Intervenor-Respondent.
    No. 27762.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Hilary A. Bush, James L. Burgess, Johnson, Lucas, Bush & Snapp, Kansas City, for plaintiff-appellant.
    Douglas H. Delsemme, Knipmeyer, McCann, Fish & Smith, Kansas City, for intervenor-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

On April 7, 1938, when appellant (plaintiff below) was approximately five years of age, a decree of adoption was entered by the Juvenile Division of the Circuit Court of Jackson County, Missouri, declaring appellant to be, “for all legal intents and purposes”, the “child of Harry L. Benson.”

Appellant’s adoption was a not uncommon sequel to the following events. Fern H. Baker (now Fern H. Benson) and Wesley A. Baker, the natural parents of appellant, were divorced in 1934 and Fern H. Baker was awarded custody of appellant. After her divorce, Fern H. Baker married Harry L. Benson. Following their marriage, Harry L. Benson filed a petition seeking to adopt appellant which culminated in the decree of adoption heretofore mentioned.

Wesley A. Baker, appellant’s natural father, died in 1942. In 1973 appellant learned that if she had not been adopted by Harry L. Benson, she would be entitled to a distributive share of the Estate of Gladys Brunk, deceased, a sister of her natural father, who died intestate. Possessed of this knowledge, appellant, approximately thirty-five years after the decree of adoption was entered, filed an action in the Circuit Court of Jackson County, Missouri, to have the decree of adoption set aside. Appellant then proceeded to file objections in the Probate Court of Vernon County, Missouri, to the final settlement proposed by the Administrator of the Estate of Gladys Brunk, deceased. A ruling on the objections which appellant filed in the Probate Court of Vernon County is apparently being held in abeyance until final disposition of the action filed by appellant in the Circuit Court of Jackson County, Missouri, to have the decree of adoption set aside. The latter is the subject of this appeal.

Florence S. O’Brien, Guardian of the Person and Estate of Russell H. Baker, an Incompetent, intervened in the action brought by appellant to set aside the decree of adoption. Russell H. Baker is a half brother of Gladys Brunk, deceased, and apparently her sole heir at law if the adoption of appellant by Harry L. Benson is not set aside as prayed for by appellant.

The trial court upheld the decree of adoption and rendered and entered the following judgment: “WHEREFORE, IT IS BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that Plaintiff’s Petition to Set Aside Decree of Adoption be and the same is in all things denied, and it is further ordered that costs be assessed against the Plaintiff, for all of which let execution issue.”

Appellant entreats this court to reverse “outright the judgment of the trial court” and to direct the trial court “to enter a judgment declaring the adoption decree to be void and of no force and effect.” According to appellant, such relief, and its far-reaching implications, is justified because the decree of adoption was void ab initio and subject to collateral attack since the record in the adoption proceeding, viewed in its entirety, discloses on its face that the court which entered the decree of adoption lacked jurisdiction to do so.

Appellant attempts to flesh out her claim of want of jurisdiction by a series of arguments. Before meeting them, a proem of certain basic principles which appellant relies upon is in order. As stated in 2 C.J.S., Adoption of Persons, § 77, p. 507, “[t]he filing of a proper petition is ordinarily a prerequisite to the court’s jurisdiction, and it must state facts sufficient to give the court jurisdiction.” See also: State v. Schilb, 285 S.W. 748 (Mo.App.1926); and State v. Carroll, 343 S.W.2d 622, 629 (Mo. App.1961). The validity of a decree of adoption must be determined by the law as it existed at the time the decree of adoption was entered. Robertson v. Cornett, 359 Mo. 1156, 225 S.W.2d 780 (1949). The prevailing law when the decree of adoption in question was entered is found in Sections 14073 to 14081, RSMo 1929.

The main focal point of appellant’s argument is the petition for adoption. She claims the petition was improper because it failed to plead all statutorily required matters, hence it was insufficient to invoke the jurisdiction of the court at the very outset of the adoption proceeding. The matters required to be pleaded at the time are found in Section 14077, RSMo 1929: Superimposition of Section 14077, supra, upon the adoption petition completely refutes appellant’s argument that the petition for adoption failed to plead all statutorily required matters. Without exception, matters alleged in the adoption petition conformed in every respect with the matters set forth in Section 14077, supra. Suffice it to say, the petition for adoption, from a pleading standpoint, invoked the jurisdiction of the court.

“The petition shall state the name, sex and age of the child sought to be adopted, and if it is desired to change the name, the new name, and the name and residence of the parents of the child, if known to the petitioner, and facts setting forth petitioner’s ability to properly care for, maintain and educate said child. The court shall appoint a guardian ad litem to represent the child in said proceeding.”

Section 14077, supra, notwithstanding, appellant contends that the petition for adoption was fatally defective in view of Section 14074, RSMo 1929, which reads as follows:

“The court shall not decree the adoption, except as hereinafter provided, unless in cases where the child or person to be adopted is of the age of 12 years or over and consents in writing to the adoption; and in cases where the child or person to be adopted is under the age of 21 years, the parents or surviving parent and guardian of the child, if any, consent in writing, to the adoption; and the approval of the court shall be requisite in all cases, such approval being given or withheld as the welfare of the child or person sought to be adopted may, in the opinion of the court, demand. The consent of a parent of the child shall not be required if such person is insane, or is imprisoned under a sentence which will not expire until two years after the date of the filing of the petition; or if he or she has willfully abandoned the child or neglected to provide proper care and maintenance for the two years last preceding such date.”

To buttress her position, appellant contends the adoption petition “conclusively” showed on its face that she was under twenty-one years of age at the time, that Wesley A. Baker, her natural father, was living at the time and his consent in writing to the adoption had not been filed in court, and no facts were pleaded which would permit the court to entertain the adoption proceeding absent his written consent being filed in court. She supplements this by arguing that in order to invoke the jurisdiction of the court, it was mandatory that the petition for adoption plead facts in accordance with Section 14074, supra, which would supplant the requirement that the written consent of her natural father be obtained and filed in court. This argument completely ignores Section 14076, RSMo 1929, which reads as follows:

“If the written consent herein required is not filed in court, the court shall order notice, by personal service on the parties of the writ of summons and a copy of the petition, or if any such party cannot be found within this state, by a publication according to sections 739 and 747, R.S. 1929. If, after such notice, a person whose consent is required does not appear, the court may act upon the petition without his consent and the judgment of the court shall be binding upon all persons so served: Provided, any such person shall have the right to appeal from such judgment, in the manner and form provided for appeals in the code of civil procedure.” (Emphasis added.)

The emphasized portion of Section 14076, supra, is clear and precise and does not have to be construed in order to be applied. As stated in Rochford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941, 944 (banc 1929), with reference to Section 1098, RSMo 1919, the identical forerunner of Section 14076, RSMo 1929, albeit dictum, “[i]f it [the written consent of a living parent] is not put in writing and filed in court, they must be notified in the manner prescribed; if after such notice they do not appear, their consent will be conclusively presumed.” It is patently obvious that the quoted statement was rooted in the following language common to both Section 1098, RSMo 1919 and Section 14076, RSMo 1929: “If, after such notice, a person whose consent is required does not appear, the court may act upon the petition without his consent and the judgment of the court shall be binding upon all persons so served.” Written consent to the adoption was obtained from appellant’s mother and filed in court. Service of notice was obtained upon Wesley A. Baker, the natural father of appellant, by publication, and he did not appear in person, by counsel, or by pleading in said adoption proceeding.

In view of Section 14076, supra, there is no merit to appellant’s contention that the court in the adoption proceeding lacked jurisdiction to entertain the petition and enter the decree of adoption because the petition for adoption failed to plead and the court failed to find the existence of one or more of the several exceptions spelled out in Section 14074, supra, which would have obviated written consent by appellant’s natural father. Sections 14074 and 14076, supra, are in pari materia and must be read together. After doing so, it is quite clear that proper service of notice upon a non-consenting parent in an adoption proceeding under the then existing law, and his failure to thereafter appear, excused the necessity of obtaining and filing his written consent just as effectively as alleging and proving one or more of the exceptions spelled out in Section 14074, supra. The unequivocal language of Section 14076, supra, supports no other conclusion.

Appellant levels one complaint at the service obtained upon Wesley A. Baker, namely, no “separate Application for an Order of Publication was filed and the court apparently entered its Order of Publication based upon the allegation set out in the verified petition.” The petition for adoption, which was verified under oath, specifically alleged that Wesley A. Baker “cannot be found in the State of Missouri”. The record discloses that the order for service by publication was made by the court after hearing evidence and finding that the said Wesley A. Baker, “cannot be found in the State of Missouri”. Section 739, RMSo 1929, referred to in Section 14076, supra, specifically provided that an order of publication could be predicated upon a proper allegation in a petition or by way of a separate affidavit. See also the following cases, dealing with substantially similar or identical statutory provisions, as authority for the proposition that the order of publication did not have to be supported by a separate affidavit as contended by appellant. Elting v. Gould, 96 Mo. 535, 9 S.W. 922 (1888); Warren v. Manwaring, 173 Mo. 21, 73 S.W. 447 (1903); Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749 (banc 1918); and Sligo Furnace Co. v. Miller, 292 Mo. 517, 239 S.W. 80 (1922). Appellant does not question the sufficiency of the allegation itself, that Wesley A. Baker “cannot be found in the State of Missouri”, to support the order of publication. Parenthetically, Rochford v. Bailey, supra, authoritatively upholds the sufficiency of the allegation to do so.

Appellant assails the adoption decree itself as being fatally defective for not containing “necessary findings of fact”. Section 14078, RSMo 1929, mandated the contents of adoption decrees at the time in question, and it reads as follows:

“If the court, after due hearing, is satisfied that the person or persons petitioning to adopt such child is of good character, and of sufficient ability to properly care for, maintain and educate said child, and that the welfare of said child would be promoted by sustaining the petition for adoption, and that it is fit and proper that such adoption should be made, a decree shall be made setting forth the facts and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and the court may decree that the name of the child be changed, according to the prayer of the petition.”

Section 14078, supra, used as a transparent overlay upon the adoption decree in question, completely cripples any contention on appellant’s part that the decree of adoption omitted “necessary findings of fact.”

Appellant’s final attack upon the decree of adoption is posited on certain oral testimony which she introduced to cast doubt or suspicion upon certain findings of fact contained in the decree of adoption. The instant case was tried to the court and evidence in the nature of that just mentioned was received by the court at various times over the objection of the intervenor. The trial court advised the parties that such evidence, subject to the intervenor’s objections, would be received and the objections would be ruled on when the court rendered its decision. The judgment rendered and entered by the trial court leaves no doubt that it did not consider the controversial evidence, and appellant says that it erred in not doing so. Appellant is wrong. The ultimate exclusion of such evidence by the trial court is supported by a plethora of authority. A general statement of the applicable law is found in 46 Am.Jr.2d, Judgments, § 663, p. 819: “Indeed, the general rule is that a collateral attack may not be made upon a judgment where the absence of jurisdiction does not appear upon the record. Under this rule, the validity of a judgment when collaterally attacked must be tried by an inspection of the record alone, and no other or further evidence on the subject is admissible, even though such evidence might be sufficient to impeach the judgment in a direct proceeding against it.” For Missouri cases of like accord see: Collier v. Catherine Lead Co., 208 Mo. 246, 106 S.W. 971, 979 (1907); Sisk v. Wilkinson, 305 Mo. 328, 265 S.W. 536, 538 (banc 1924); and La Presto v. La Presto, 285 S.W.2d 568, 570 (Mo.1955).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. James R. DUNCAN, Appellant.
    No. KCD 27950.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Kenneth J. King, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant appeals from conviction of first degree robbery after trial by jury. His sole point on appeal is that the trial court erred in not permitting one of his witnesses to testify while holding a small baby in her lap.

The defendant offered an alibi defense. The robbery in question had occurred between 3:00 and 3:30 p.m. on July 16, 1974. Defendant testified in his own behalf that at that time he was at the offices of the Human Resources Corporation. To support his own testimony he called three witnesses who corroborated his presence at the Human Resources Corporation offices from 2:45 until after 4:00 p.m.

Defendant also sought to put Mrs. Wanda Branstetter on the stand to testify. In his testimony he had named her as one of those whom he had seen at the Human Resources Corporation offices on the afternoon of July 16,1974, and (although he made no offer of proof at trial) he says in his brief that her testimony would have further substantiated his alibi.

When the time came for Mrs. Branstetter to take the stand, defense counsel approached the bench and made the following statement:

“I have a slight problem with this next witness, and if it doesn’t work, I will understand the problem. This woman has a child with her that is crying. She can’t leave it. She has just adopted it a month ago, and if it doesn’t stop, you know, I won’t be able to put her on. So may we have a brief recess for just a few minutes to allow him maybe to get familiar with here. I know it is really — ”

In response to that request the trial court did grant a brief recess.

Immediately after the recess a further colloquy occurred out of the hearing of the jury, as follows:

“MR. KIERST: Your Honor, the defendant would intend to offer as a witness Mrs. Branstetter, Wanda Branstet-ter; but it would be necessary for her to testify holding a small child on her lap.
“MR. DAKOPOLOS: State would certainly object to that occurring, as being prejudicial to the interest of the State.
“THE COURT: We had the child in the courtroom earlier, and it was quite disrupting with the crying when he was in the back of the room. It would be exceedingly more so outside of the prejudice that made the occasion; thereby [sic] the objection is sustained.”

The trial court had the duty to maintain order and decorum in the courtroom and to take such action in his broad discretion as was appropriate to that end. His action in this regard will be reviewed only to ascertain whether there was any abuse of discretion. State v. Johnson, 499 S.W.2d 371 (Mo.1973); State v. Pinkston, 333 S.W.2d 63 (Mo.1960); State v. Brotherton, 266 S.W.2d 712 (Mo.1954); State v. Tschirner, 504 S.W.2d 302 (Mo.App.1973); State v. Stanley, 494 S.W.2d 682 (Mo.App. 1973).

The record in this case shows no abuse of discretion. The baby had already been crying and causing some disruption while with Mrs. Branstetter in the back of the courtroom, and the trial judge was justified in believing that the disruption would be even more accentuated if the same thing occurred while Mrs. Branstetter was on the witness stand. At the request of defense counsel, the court had already granted a recess and thereby gave the defendant an opportunity to make some arrangement for the care of the child. It would seem that the defendant, his witness or his counsel or all of them in collaboration could have made some arrangement for someone to hold the child outside the courtroom for the few minutes that it would have taken Mrs. Branstetter to testify. If that was impossible for some unknown reason, defense counsel had the duty to at least explain what that extraordinary reason was. He did not do so. As a matter of fact, defense counsel appeared to have anticipated the ruling which was actually made and seems to have conceded the reasonableness of not permitting Mrs. Branstetter to testify with the baby on her lap, when he stated to the court: “I have a slight problem with this next witness, and if it doesn’t work, I will understand the problem.”

It will be noted that the trial court did not deny the right of Mrs. Branstetter to testify. He ruled simply that she could not do so while holding a disruptive infant on her lap. That ruling was reasonable and well within the broad discretion of the trial court.

Affirmed.

All concur.


text:
    STATE of Missouri on the information of William S. Brandom, Prosecuting Attorney of Clay County, Missouri, ex rel. Lawrence W. KING et al., Appellants, v. VILLAGE OF PRAETHERSVILLE, a Municipal Corporation, et al., Respondents.
    No. KCD 27986.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Thaine Q. Blumer, Kansas City, for appellants.
    Bernard D. Craig, Sr., Edward P. Moran, Richard M. Shteamer, John E. Craig, Kansas City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is an original action in quo warranto seeking to have the original order of incorporation of the Village of Praethersville declared invalid and void and further seeking an order declaring that the individual respondents (village officials) are holding their offices without authority. The cause was tried to the court below without a jury, and judgment was rendered for defendants. The issues presented by the parties on this appeal are first, whether the village was validly incorporated and second, whether successful prosecution of this cause of action is barred by the doctrine of laches.

On January 20,1951, the County Court of Clay County, Missouri, issued an order incorporating the Village of Praethersville, the boundaries of said village encompassing some 1500 acres. Both at the time of incorporation and at the time of trial a maximum of 40 acres could fairly be characterized as urban. The remainder of the land was agricultural. The village population at the time of incorporation is unknown, but there were at least 91 taxpayers, and some 40 houses. Business establishments consisted of a bottled gas company, a combination grocery store-service station and a lumber yard. The latter two are now gone but there is still a store and several apple orchards. The village also contains one small schoolhouse. At the time of trial the village population was 126, residing in 55 houses.

At the time of incorporation the villagers had no plans for residential and industrial development and have since pursued none. Building permits for the houses built since incorporation have been issued orally by the city council. None of the existing agricultural land has been platted, and the physical character of the village itself has changed very little over the years. At the time of incorporation the existing roads and streets had been built by the state or county and no additions have been made thereto, though there has been some maintenance work done by the village. There is no municipal water supply or sewage treatment system, though abortive attempts were made at one time to gain the former by joining an adjacent rural water district.

The village council started functioning at least as early as 1952, and has enacted ordinances. At the time of trial the council had four members and a mayor. The village also has a clerk, treasurer, zoning commissioner, marshal and deputy marshal (unpaid) and a police judge (who has yet to hear a case). Since incorporation the village has levied and collected taxes based on a $0.50 per $100 valuation as determined by the Clay County Court. The village has also received revenue sharing funds from the Federal Government, and derives revenue from franchise agreements with five utility companies. Total yearly revenue at the time of trial was some $3,900-$4,000. There have been no bond issues. Expenditures by the village include those for road maintenance, repair and maintenance of the village fire truck and station, expenses of the zoning commission and police department, salaries for the village clerk and treasurer, expenses of the city council, legal notices, legal advice and preparation of tax bills to Clay County Court. The fire truck was purchased with money obtained in fund raising events and donations and is manned by volunteers. The zoning commission’s activities have been minimal; the zoning code was adopted in 1964 and merely zoned the whole village residential. The only change in zoning was made in 1969 when the present relators successfully applied to have their land rezoned to heavy industry.

Under the standards set forth in § 80.020 RSMo 1969 and under Missouri case law, it cannot be gainsaid that the incorporation of the village in this case was improper. Section 80.020 provides in pari materia that a petition for incorporation shall be presented to the county court and shall set forth the metes and bounds of the village and commons. Under Missouri law there is no probation against incorporating land which “may become so surrounded and connected with lands used for town and city purposes, as to be and constitute a part thereof, so that the incorporation of the town or city would, as a necessity, include within its natural boundaries such lands.” State ex inf. Crow v. Flemming, 158 Mo. 558, 59 S.W. 118, 120 (1900); State ex rel Scott v. Lichte, 226 Mo. 273, 126 S.W. 466 (1910); State ex inf. Rosenberger v. Town of Bellflower, 129 Mo.App. 138, 108 S.W. 117 (1908). However, “county courts have no right or jurisdiction to incorporate surrounding or adjacent farming lands into cities, towns or villages.” State ex inf. Eagleton v. Champ, 393 S.W.2d 516, 522 (Mo. banc 1965); accord State ex rel. Patterson v. McReynolds, 61 Mo. 203 (1875); Petition to Incorporate the City of Duquesne, 322 S.W.2d 857, 863 (Mo.1959); see In Re Incorporation of Village of Lone Jack, 471 S.W.2d 513 (Mo.App.1971). Thus, “(1) land used solely for farming or agricultural purposes is not to be included in any great amount, and (2) only land which is devoted to community purposes and is an integral part of the community to be incorporated shall be included within the incorporation.” In Re Incorporation of Village of Lone Jack, supra at 516.

A review of the evidence herein, in light of the foregoing rules, makes it clear that the 1951 incorporation was improper. Only some 3% of the land is urban and there was no evidence of an actual connection between the urban and agricultural land. Therefore it follows that judgment should be entered for relators, unless relief should be denied because of the 22 year delay which has intervened between the date of incorporating and the filing of this action. Respondents vigorously contend that the cause of action here is barred by that consideration under the doctrine of laches.

It is well settled in Missouri that the state may be barred by laches from successfully maintaining a quo warranto action challenging the validity of a village, city or school district. State ex inf. Eagleton v. Champ, supra at 528. No fixed amount of time need elapse before the doctrine of laches is invocable; rather, each case must be decided on its particular facts. Champ, supra at 528. The general meaning of laches is that the party seeking relief has delayed his action for an unreasonable and unexplained length of time resulting in disadvantage to the other party. Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643 (Mo.1973); State ex rel. McIntosh v. Rainey, 397 S.W.2d 344 (Mo.App. 1965).

The incorporation of the village was ordered in 1951, and this quo warranto proceeding did not begin until 1973. During the 22 years between those dates, the village effectively served the purposes envisaged by the inhabitants of preserving a separate school district so that their children would not have to go into Mosby for school, and of preventing the annexation of Praethersville by either Excelsior Springs or Mosby. Moreover, the incorporated village proceeded to function as a local municipality in the following respects: (1) a city council was elected and regular elections for staggered terms have been conducted ever since; (2) the village council has held regular meetings; (3) the council kept minutes showing business transacted and ordinances passed; (4) a zoning ordinance was adopted; (5) building permits were issued; (6) an attorney was appointed and he has been paid for services to the village; (7) a local Civil Defense unit has been organized, has formulated emergency plans for the village, is subject to annual inspections by the National Guard, and makes monthly reports to the state director; and (8) the village has been otherwise recognized by other branches of government, especially through payment to the village of federal revenue sharing funds and cooperation between the village and the Clay County Court with respect to the levy and collection of property taxes. All of these eight numbered activities were referred to in the Champ opinion, as factors among others relevant to the application of the laches doctrine. Those factors have even more weight in this case where the acts extended over a 22 year period as compared to a period of only 3 years 8 months in Champ.

Moreover, additional factors support application of laches here. The village has maintained a full complement of appropriate officials; it has collected taxes and utility franchise revenue; it has maintained roads and installed traffic signs; it owned and maintained a police car at one time and until the cost made the continuance impractical; it acquired and still maintains other police and fire fighting equipment; and it has sent designated individuals to school for training in law enforcement. Under all of the evidence, and particularly taking into account the very long period of the village’s existence before any challenge, this action should be held barred by laches.

There is another legal principle which equally supports the trial court’s ruling. As very recently pointed out in State ex inf. Graham ex rel. Bishop v. Hurley, 540 S.W.2d 20, Missouri Supreme Court en banc, handed down September 13, 1976, in quo warranto proceedings at the relation of private parties (as in the present case) it is not only required that the government attorney exercise his discretion in the public interest, but the law also “requires that the court in its discretion grant the government attorney leave to file the information.” That principle has long been applied in this State in proceedings brought to oust a municipality and has been expanded to allow exercise, in the final disposition of quo warranto cases, that discretion which was originally only exercised in allowing the information to be filed. State ex rel. Crain v. Baker, 104 S.W.2d 726, 730 (Mo.App.1937) and cases there cited.

Flowing from that principle, the Missouri cases hold that the writ will not be granted “unless some good purpose can be served by it.” State ex inf. Otto ex rel. Harrington v. School District of Lathrop, 314 Mo. 315, 284 S.W. 135 (banc 1926); and that the state must show some “detriment to accrue from permitting the municipality to continue.” State ex inf. Eagleton v. Champ, supra. Generally speaking, the state should show some equity in favor of suddenly blotting out the legal existence of a town after long tolerating it as a working municipality. The controlling considerations are well stated in State ex inf. Wallach ex rel. H. B. Deal & Co., Inc. v. Stanwood, 208 S.W.2d 291, 296 (Mo.App.1948):

“The equities revealed by the evidence show that the corporate existence of this village had gone unquestioned for over ten years, during which time it has grown and prospered. It has elected its officers annually, levied taxes, contracted for water and fire protection, put up street signs, repaired streets, caused fire hydrants to be installed, and enacted ordinances. It is not in debt but, on the contrary, it has a fair balance in the bank. These are the equities that favor the village, while on the part of the relator he has purchased some land and wishes to put it to a use prohibited by a village ordinance and he brings this action to render void the existence of the village so that he will be unhampered. * * * Villages are important segments of our political structure affording those citizens with common interest who live in close relationship with each other the means through which their local problems can be solved, the law enforced, and community interests advanced. The courts are hesitant to say that an omission or error in the incorporation of a village brought to attention many years after it occurred makes a nullity of the village’s corporate existence and its officers usurpers of powers and duties that do not in law exist. The equities must strongly favor the State before it can be so held for it is its duty to nurture and promote villages and cities and the orderliness established by them rather than to destroy their existence. There are no equities of record here of such moment that they would warrant the drastic action sought by the State and it must be held that its laches have precluded it from the judgment it seeks.”

This court holds similarly herein. The evidence shows the village to be a viable entity and one which since incorporation has developed a municipal government and provided concomitant services. Relators, who want to develop land within the village boundaries, were granted a requested zoning change by the village. Actual development, however, was thwarted because the village lacks a municipal water supply and sewage treatment system and the City of Excelsior Springs refused to allow relators to run the necessary connective lines. The village is not actively blocking the development. On balance the equities on the side of the village and the policy of our courts to nurture and promote extant municipal entities, combined with the dearth of showing of equities on the part of the State, call for an affirmance.

Affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Rex D. NELSON, Appellant.
    No. KCD 28041.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Lee M. Nation, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Rex Nelson was found guilty by a jury of assault with intent to maim with malice, Section 559.180, RSMo 1969. The court found Nelson was subject to the Second Offender Act and following his conviction the court assessed punishment of forty years imprisonment.

Nelson raises the singular point on this appeal that his conviction resulted from evidence insufficient to show his guilt. Affirmed.

The assault of which Nelson was convicted occurred in a church parking lot in Kansas City. Clay Richardson and his friend, Curtis Murphy, were walking across the parking lot after midnight. Both Richardson and Murphy testified the lot was well lighted. While walking across the lot, a car traveling at a high rate of speed came down the adjoining street, jumped the median in the street, and then jumped the curb between the street and the parking lot and proceeded into the lot. Two men emerged from the car and began emitting shrill screams and yells. Murphy grabbed Richardson’s arm and told him they had better get out of there. Both men started running, but the two men who had emerged from the car soon caught Richardson. One of the men grabbed Richardson by the arm and half turned him around and struck him with the jagged edge of a broken bottle in the ear. Richardson was then thrown to the ground and both men beat and kicked him.

In the meantime, Murphy had stopped running and was starting to return to Richardson, who was on the ground, when Nelson stopped kicking Richardson and went after Murphy. Nelson caught Murphy and started beating him. Murphy began crying for help in a loud voice and was heard by Officer Reed of the Kansas City Police Department, who was cruising nearby in his paddy wagon. When Reed arrived at the scene, Nelson and his companion stopped their beating and began walking across the parking lot. Murphy ran to the paddy wagon and pointed out Nelson and his companion and informed Reed he and Richardson had been beaten by the two men walking away. Reed called for the two to halt, and on their failure to do so, Reed captured them after a short chase. Reed placed both men under arrest.

Murphy testified Nelson and his companion were never out of sight from the time the assault first began until he saw Reed place both men under arrest and handcuff them.

Richardson identified one of the men arrested by Reed as one of his assailants, and Murphy positively identified Nelson as one of the two men who had beaten and kicked Richardson and who had also assaulted him.

Richardson suffered severe injuries, including a fractured collarbone, a fractured shoulder and fractured hip. He was hospitalized for thirty-three days and testified he was still in bad shape at the time of trial some seven months after the assault.

During the trial, Nelson’s counsel admitted the severity of the beating suffered by Richardson but placed his defense on the testimony of Nelson who denied participating in the assault or beating of Richardson and the testimony of two other witnesses who stated Nelson was not involved in the assault.

On this appeal, Nelson states the only evidence against him was the fact he was arrested in the vicinity of the assault and relies on cases stating the well known rule that presence at the scene of the crime, suspicious circumstances and an opportunity to commit the crime are not sufficient evidence on which to base a conviction.

Nelson obviously overlooks the positive and direct testimony of Murphy who identified Nelson as one of the two men who administered the severe beating to Richardson which resulted in his serious injuries. Murphy testified the parking lot was well lighted and he had ample opportunity to see, observe and identify Nelson. This, coupled with his testimony that Nelson was never out of his sight, and the testimony of Officer Reed that Nelson was arrested by him after being pointed out by Murphy, constitutes substantial evidence upon which the jury could base a finding of guilt.

In determining the sufficiency of the evidence after a finding of guilt by a jury, this court “accepts as true all evidence in the record tending to prove the defendant’s guilt, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom and disregards all contrary evidence and inferences.” State v. Burnett, 520 S.W.2d 148 (Mo.App. 1975).

In view of the direct testimony of Murphy identifying Nelson, there was substantial evidence before the jury upon which a finding of guilt could be based.

The judgment is affirmed.

All concur.