text:
    CHENOWETH-CHAPMAN CORPORATION, a corporation, Respondent, v. The AMERICAN INSURANCE COMPANY, a corporation, Appellant.
    No. 37435.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 7, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Barnard, Baer, Lee, Timm & McDaniel, Herbert E. Barnard, James C. Brandenburg, St. Louis, for appellant.
    Joseph L. Badaracco, Flynn & Parker, Norman C. Parker, Mary Ann Weems, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal by the American Insurance Company from a judgment in this jury-waived case entered in favor of Chen-oweth-Chapman Corporation in its action to recover $7,659.47 based upon the employee dishonesty coverage of a blanket crime policy.

Plaintiff operated a laundry and dry cleaning business at several locations in the City of St. Louis, one being at 4731 Delmar Street. Plaintiff alleged that during the year 1968, while the policy was in effect, it sustained a loss of $7,659.47 in cash which was brought about by dishonest and fraudulent acts of its employees in failing to remit to plaintiff money collected from customers.

Defendant challenges the admission of certain evidence, but assuming for the purpose of stating the facts that the evidence was admissible, the facts leading up to the claim upon which this suit is based may be stated as follows.

In February 1968, plaintiff’s recordkeep-ing for the “cash and carry” laundry and cleaning business conducted at the Delmar location was placed on an “IBM card system.” When a customer left items of clothing at the Delmar store for cleaning, one copy of a numbered tri-copy order ticket was given to the customer, one copy accompanied the clothing through the cleaning process, and one copy was sent to plaintiff’s office where an IBM card was prepared and sent to the counter where the customer was to call and pick up his clothing. When the customer presented his numbered order ticket he paid the cleaning charges and received his cleaned clothing. The clerk would then pull the corresponding numbered IBM card from the file and turn it in at the end of the day with the cash received in payment. During 1968 at least three persons worked at the counter to receive clothing to be cleaned, write up the order tickets, receive cash payments, and pull out the matching IBM cards and turn them into the office with the cash received. This method of handling cleaning orders was used for almost eleven months before an audit was made to compare the orders of clothing on hand with the retained IBM cards. The evidence is unsatisfactory concerning the general practice and accepted procedure in making a physical check or audit in a business such as that of plaintiff, but from the total evidence it may reasonably be said that the procedure was to take the master file of IBM cards which had not been returned to the office with the money collected as cleaning charges, and by a physical check determine whether the particular order of clothing identified on each card by a number was on the racks awaiting delivery to the customer. The audit conducted by Mr. Hartman, who was then vice-president and general manager of plaintiff, disclosed that there were IBM cards in the files for clothing that was not on the racks awaiting delivery to customers, and that the cleaning charges for that clothing amounted to $7,659.47. The figures showing the result of this audit were reduced to writing by Mr. Hartman and were admitted into evidence as Exhibit B. Audits of other stores of plaintiff for the same period disclosed no shortage beyond an acceptable deviation of two percent, and a subsequent audit at the Delmar store covering three months in 1969 disclosed only a fifty cent discrepancy.

No customer claimed that he did not receive his clothing left at the Delmar store to be cleaned. It is plaintiff’s contention that this evidence authorized a finding that some employees, the identity of whom is not known, over the period of time in 1968 covered by the Hartman audit delivered the clothing to the customer but failed to turn into the office the cash received. We agree that this is a reasonable conclusion to be drawn from the facts.

The parts of the blanket crime policy relied on by the plaintiff are as follows:

Insuring Agreements

Employee Dishonesty Coverage

I. Loss of Money * * * which the Insured shall sustain through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others.

Loss Inside The Premises Coverage

II. Loss of Money * * * by the actual destruction, disappearance or wrongful abstraction thereof within the Premises * * *

The parts of the policy relied on by the defendant are as follows:

Exclusions

Section 2. This Policy does not apply:

* * * * * *

(b) to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided however, that this paragraph shall not apply to loss of Money, * * * which the Insured can prove, through evidence wholly apart from such computations, is sustained by the Insured through any fraudulent or dishonest act or acts committed by any one or more of the Employees;

(c) under Insuring Agreements II and III, to loss due to any fraudulent, dishonest or criminal act by an Employee * * * while working or otherwise and whether alone or in collusion with others; provided this Exclusion does not apply to Safe Burglary or Robbery or attempt thereat.

Plaintiff’s contention is that its evidence, admittedly circumstantial in part, authorized a finding that the loss to it of $7,659.47 occurred through dishonest and fraudulent acts of one or more of its employees, and that it is entitled to recover under Insuring Agreement I. But, it further contends that if it be determined that the evidence did not authorize a finding that the loss occurred as the result of fraudulent or dishonest acts by employees, then it is entitled to recover under Insuring Agreement II which insures against “disappearance or wrongful abstraction” absent fraudulent or dishonest ácts.

'' Defendant contends, on the other hand, that (a) the evidence which establishes the existence of a loss was inadmissible, and (b) plaintiff failed to prove it sustained a loss under Insuring Agreements I or II because plaintiff’s only evidence of a loss consisted of inventory computations specifically excluded from coverage.

We shall consider first defendant’s challenge to the admission into evidence of Exhibit B, the report prepared by Mr. Hartman on December 28, 1968 showing the result of his audit or physical check of the IBM cards and of clothing on the racks. At the time of trial Mr. Hartman was deceased. Therefore, if Exhibit B was admissible in evidence it was because it qualified as a business record pursuant to § 490.680, RSMo 1969, which is as follows: “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time or preparation were such as to justify its admission.”

Defendant asserts that the trial court erred in admitting into evidence Exhibit B because it “constitutes hearsay and plaintiff failed to meet the requirements of Section 490.680.” Of course, if the exhibit was qualified as a business record under § 490.680, it is immaterial that it constituted hearsay. Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663 (1956). In violation of Rule 84.04(d) this point sets out only an abstract statement that “Plaintiff failed to meet the requirements of Section 490.680” without setting out in what respect there was a failure. This point does not inform plaintiff of the contended deficiency to which it is to respond, and it does not advise this court of the precise question for decision and why it is contended a deficiency existed. In a most liberal exercise of judicial discretion we have examined the argument portion of defendant’s brief in an effort to determine the basis for its contention of error.

Defendant first asserts in argument that “Parma Kidd, did not qualify as a ‘custodian or other qualified witness,’ ” but there is no statement as to the respects in which it is contended her qualifications were lacking. Mrs. Kidd testified that Exhibit B had been prepared by Mr. Hartman, that it was in his handwriting, and she explained the procedure whereby the master file of IBM cards were used to conduct a physical check against clothing on the racks awaiting delivery to customers. The evidence shows that she was secretary-treasurer of plaintiff, that she was in “charge of the preparation of records,” which included anything that related to the “bookkeeping end” of plaintiff’s operations. Shortly after Mr. Hartman prepared Exhibit B he gave the record to Mrs. Kidd who thereafter retained it in the business files of plaintiff. We find no merit whatever to the contention that Mrs. Kidd was not shown to have been the custodian of Exhibit B, or of the records from which it was taken, but in any event, she qualified as an “other qualified witness” who testified to the identity of Exhibit B and the mode of its preparation.

Defendant next asserts in argument that “there was not sufficient evidence of the mode of preparation and the sources of information of Exhibit ‘B’ so as to justify its admissibility under the Business Records as Evidence Act.” It further argues that the “nature of the document” requires “substantial testimony as to the preparation * * *, the computation of the figures thereon and the sources of information from which the figures thereon were obtained.”

Mr. Matthey, president of plaintiff, testified that Exhibit B was prepared at his request by Mr. Hartman, and that it represented the results of “an annual record that was prepared by Mr. Hartman” for plaintiff, as an “end of the year record” which was “An actual physical check of each order at each location” that was made “at the end of each year” to “check our balance.”

No witness testified that he observed Mr. Hartman in the process of making the audit. Therefore, there was no direct evidence as to the precise manner of preparation of Exhibit B by him. However, Mrs. Kidd testified that the manner of making a physical check or audit in plaintiff’s business was to take the “Master [IBM] card file” and to make a “physical count” of the clothing on the racks awaiting return to the customers. She further testified that when she made a “physical count” in February she went to the racks and checked each order, “order by order,” and also checked the amount of the charges for cleaning the clothes comprising each order. She also testified that for the “first period” in 1969 no “physical check” was made at the Delmar Store because “this shortage” had been discovered at the end of 1968 and “we went back and audited our sales tickets and everything else to make sure that our figures were correct that we had on our books * * * >>

The sources of information available to Mr. Hartman in the preparation of Exhibit B were the IBM cards which were prepared in the regular course of business, and the clothing physically on the racks. Each cleaning order was identified by a number on the attached order ticket which would also appear on the IBM card for that order. As to the method of preparation of Exhibit B, the evidence shows that it was made as the result of a physical check of the clothing on the racks with the IBM cards, that is, a check of the number on the order ticket on the clothing with the number on the IBM card, and a totaling of the cleaning charges on those IBM cards for which there was not an order of clothing on the racks. The trial court admitted Exhibit B into evidence and therefore found that “the sources of information, method and time of preparation were such to justify its admission,” and we agree. Exhibit B was qualified as a business record, and was properly admitted.

Defendant also asserts that the court erred in admitting into evidence Exhibits C, D and E because (a) “the figures depicted in such exhibits are dependent upon the figures depicted in plaintiff’s Exhibit B,” and (b) they “are irrelevant in that they purport to depict conditions which existed after the period of claimed loss.”

Our ruling that Exhibit B was properly admitted into evidence results in appellant’s first contention under this point being without merit. As to the second contention, the Exhibits were material in that they tended to corroborate the result of the audit by Mr. Hartman. Exhibit B showed a loss at the Delmar store, one of fourteen places audited, but no loss greater than the permitted tolerance at any other place. Exhibits C, D and E, prepared by Mrs. Kidd, showed no loss at any place during the first three months of 1969 greater than the permitted amounts, and a difference of only fifty cents at the Delmar store. Plaintiff’s theory was that the loss at the Delmar store resulted from fraudulent and dishonest acts of an employee or employees. When the loss was discovered, which would be known by the employees, further shortages in money being turned in stopped. Furthermore, this was a court-tried case, the jury being waived. In our review we are to disregard improperly admitted evidence. Assuming that Exhibits C, D and E were not relevant and we disregarded them, the result of this appeal would be the same.

Defendant’s final contention is that “plaintiff failed to prove coverage under its insuring agreement” because (a) by “paragraph II” of the insuring agreement “losses due to fraudulent or dishonest acts of employees are specifically excluded from coverage,” and because (b) plaintiff failed to prove coverage by “Insuring Agreements I and II” for the reason that plaintiff’s only evidence of a loss consisted of “inventory computations specifically excluded from coverage.”

No request was made that the trial court enter findings of fact and conclusions of law and none was made. In its judgment the court recited that it had reserved ruling on admission in evidence of Exhibits B, C, D and E, and on an objection to testimony of Mr. Matthey “defining a $13,828.13 figure in Exhibit B.” It then ruled the exhibits were admissible and sustained the objection to the testimony of Mr. Matthey, and found “the issue in plaintiff’s petition in favor of plaintiff and against defendant” except for plaintiff’s claim for vexatious delay and attorney fees, and it entered judgment in favor of plaintiff and against defendant in the amount of $7,659.47. We cannot determine from the record whether the court found for plaintiff under Insuring Agreement I or II. In either event, plaintiff was not entitled to recover by reason of a “loss * * * either as to its factual existence or as to its amount” when the proof of that loss “is dependent upon an inventory computation or a profit and loss computation * * The essential question is whether Exhibit B was the result of an “inventory computation” within the meaning of the insuring agreement, and we are of the opinion that it was not.

The important words are “loss * * * the proof of which * * * is dependent upon an inventory computation.”. The term “inventory computation” is not defined in the insurance policy. Therefore we are to assume that it was used in its usual or ordinarily accepted meaning in relation to the subject matter of the insurance agreement. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940); Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo.1969). The term “inventory” is subject to several meanings depending on how it is used. In Black’s Law Dictionary 4th Ed. it is defined as “A detailed list of articles of property; a list or schedule of property, containing a designation or description of each specific article; an itemized list of various' articles constituting a collection, estate, stock in trade, etc., with their estimated or actual values.” In § 400.9-109 RSMo 1969, the Uniform Commercial Code, it is provided that “Goods are * * * ‘Inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts for service or if he has so furnished them, or if they are raw materials, work in progress or materials used or consumed in a business.” In the comment following the above provision it is stated that “The principal test to determine whether goods are inventory is that they are held for immediate or ultimate sale.” In this case the clothing on the racks were not for sale or lease, and they were not raw materials to be processed or consumed in plaintiff’s business operation. The clothing was the subject of a bailment to plaintiff to be returned to the customer after the cleaning process.

In Fort Smith Tobacco & Candy Co. v. American Guar. & L. Ins. Co., 208 F.Supp. 244 (D.C.Ark.1962), the court had before it the identical exclusionary provision as in this case, and it quoted with approval from a report by a certified public accounting firm as follows: “An inventory computation is an inventory arrived at by taking a beginning inventory, adding purchases and deducting the cost of merchandise sold. A computed inventory loss, therefore, would be the difference arrived at by deducting an actual inventory from the inventory computation.” We are of the opinion that this correctly expresses the meaning of the terms “inventory,” “inventory computation” and “loss * * * dependent on an inventory computation” as used in the policy of insurance and applicable to the operations of plaintiff.

The audit of Mr. Hartman was not an “inventory computation” within the meaning of the term as above defined. Mr. Hartman did not take an “inventory,” that is, make a schedule of property in stock for sale or lease. If he made any schedule or list it was of the charges for cleaning noted on the IBM cards for the articles of clothing that were not on the racks of the plaintiff’s place of business. He did not take a beginning inventory, then add later acquired items and deduct the items returned to customers, or compute an inventory loss.

By this physical check of the IBM cards against the clothes on the racks he determined the amount of money that should have been collected from customers when they claimed their clothing but which had not been turned into the office. This was not a loss determined from an inventory computation in the ordinary and generally accepted meaning of that term.

The factual circumstances in Sun Insurance Company of N.Y. v. Cullum’s Mens Shop, Inc., 331 F.2d 988, 991 (5th Cir. 1964), are somewhat comparable to those in this case. In the Cullum case the policy of insurance contained the standard provisions identical to those in this case. A substantial loss occurred as the result of employees taking suits of clothing from the racks in the store which were for sale and wrongfully giving them away. By reference to the orders whereby the store purchased suits, and by reference to record notations of size and color entered in what was called a “swatch book” when a suit was sold, the store was able to determine what suits should have been but were not on the racks for sale, and those suits that were not on the racks were considered to have been stolen. The total cost of those suits was the amount sought from the insurer. Each missing suit could be identified by size and color. The court held: “It is clear that * * * proof of the amount of loss did not depend upon an inventory computation such as that defined in the Fort Smith Tobacco & Candy Co. case [cited supra] but on the contrary consisted of an enumeration of each missing item, suit by suit, based upon a check of the stock record, the swatch book, against the stock actually on hand.” In this case, plaintiff determined the amount of its loss by totaling the individual cleaning charges shown on each IBM card for which a check of the clothing on the racks revealed that there was no item of clothing with a corresponding number.

We conclude that the evidence fully justifies a finding that a loss of money occurred at plaintiff’s Delmar store in the amount of $7,659.47 by reason of fraudulent and dishonest acts of plaintiff’s employees, and that the loss was proved by a check of the IBM cards against the clothing on the racks awaiting delivery to customers, and that procedure did not constitute proof of a “loss” by “inventory computation” within the meaning of that term as used in the insurance policy.

The judgment is affirmed.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: McMILLIAN, Presiding Judge.

license: Public Domain

text:
    Bruce Edward COLE, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37968.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 14, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.

      David V. Uthoff, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

This is an appeal by defendant on the charges of robbery first degree by means of a dangerous and deadly weapon in three counts of an information filed in the St. Louis City Circuit Court and after trial was found guilty on all three counts and sentenced to ten years imprisonment for each count, the sentences to run consecutively. Defendant filed a 27.26 pro se motion which was denied. He appeals from this denial alleging (1) the trial court erred in imposing consecutive sentences for the November 5, 1972, offenses because mandatory consecutive sentencing has been held to be a denial of equal protection in State v. Baker, 524 S.W.2d 122, 129 (Mo. banc 1975); (2) he was denied effective assistance of counsel because his attorney failed to contest an allegedly inconsistent psychiatric report and thereby waived the defendant’s mandatory right to a competency hearing under § 552.-020(6) RSMo Supp.1971. Furthermore, his counsel failed to raise two crucial points on appeal. First, he neglected to urge as error the denial by the trial court of the defense counsel’s eventual request for a competency hearing and secondly, he failed to cite the trial court for an abuse of discretion in failing to order a sua sponte competency hearing once an allegedly bona fide doubt of the defendant’s competency was raised; and (3) the trial court erred in denying defendant assistance of counsel and an evi-dentiary hearing on his 27.26 motion. We find no merit in these contentions and accordingly, affirm.

Defendant, a twenty-five year old male was first convicted of an offense in 1971 at the age of 19. He pled guilty to stealing from a person and was sentenced to two years imprisonment. After approximately nine months, his sentence was commuted and on December 15, 1971, he was released. In January, 1972, he was admitted to Malcolm Bliss psychiatric hospital for the first time. He was released on March 11, 1972, with a provisional diagnosis of “schizo-affective, excited” but continued treatment in the “after care clinic” until June, 1972. At this time his mental state was considered normal.

It is alleged that on November 5, 1972, defendant armed with a pistol and acting with another, robbed three teenage boys, taking a total of $8.30 and two Timex watches valued at $10 each. On November 6, 1972, defendant was allegedly carrying a concealed weapon on his person and robbed an individual of $10, one wrist watch, and a bus ticket.

Defendant was charged by information on two counts for the offenses of November 6,1972: robbery first degree and carrying a concealed weapon. The prosecutor filed a nolle prosequi before trial as to the November 6 robbery and the defendant was tried only on the charge of carrying a concealed weapon.

Several months prior to trial, the court sustained a motion for a psychiatric examination. The findings were contested and a request for further examination was sustained by the court. The findings of this examination were received by the court and on July 25, 1973, the court found the defendant mentally competent to proceed with the trial. On November 6,1973, when the trial on the charge of carrying a concealed weapon began, the defense counsel requested a further psychiatric examination stating that the defendant’s condition had deteriorated since the last examination and he was unfit to proceed with the trial. This request was denied and the case proceeded to trial.

Defendant was found guilty and sentenced to five years imprisonment under the Second Offender’s Act. He appealed this conviction on two grounds: (1) the trial court improperly permitted comments and direct evidence of other crimes not charged in the indictment, and (2) the trial court erred in denying the defendant’s request for a third psychiatric examination. This court reversed the conviction finding that improper evidence was admitted. It did not rule on the issue of the third psychiatric examination, State v. Cole, 527 S.W.2d 646 (Mo.App.1975). The record does not reflect the subsequent disposition of the charges stemming from the November 6 charge of carrying a concealed weapon.

On September 17, 1973, the defendant was tried on three counts of first degree robbery for the November 5,1972, offenses. The finding of competency made for the carrying a concealed weapon trial was adopted. The defense counsel objected to this adoption of the previous finding and requested the court to hold at least a brief hearing to investigate the defendant’s competency. The motion was overruled.

Defendant was convicted and given ten year sentences for each count, the sentences to run consecutively. He appealed this conviction alleging that the court erred in assessing consecutive sentences and that they were excessive. He never raised as error the denial of the competency hearing, State v. Cole, 519 S.W.2d 370 (Mo.App.1975). This court found his argument to be without merit and the sentences were affirmed.

On January 30, 1976, the defendant filed a pro se motion contesting this conviction pursuant to Civil Rule 27.26, V.A.M.R. On February 25, 1976, he requested assistance of counsel and an evidentiary hearing. The requests were denied and the pro se 27.26 motion was overruled. For purposes of perfecting an appeal counsel was appointed for the defendant and on March 10, 1976, an amended motion to vacate the sentence pursuant to 27.26 was filed by said counsel. The motion was overruled and this appeal follows.

Appellant’s first contention is that the trial court erred in imposing consecutive sentences for the November 5 offense because mandatory consecutive sentencing has been held to be a denial of equal protection, State v. Baker, 524 S.W.2d 122, 129 (Mo. banc 1975). The Baker case, however, only mandates resentencing where the record reflects that the consecutive sentences were imposed as merely a rote application of § 546.480, RSMo 1969. A trial judge still retains the discretion to impose consecutive sentences, see, e. g., Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976) and State v. Brown, 525 S.W.2d 565, 568 (Mo.App.1975). In the present case, the record reveals that the trial judge had two independent grounds for the imposition of consecutive sentences. Admittedly, one ground was the trial judge’s belief that § 546.480 compells such sentences. The trial judge cited State v. McClanahan, 418 S.W.2d 71, 74 (Mo.1967). The judge however, revealed a separate and independent ground for the imposition of consecutive sentences when he found:

“ . . . the Court, in its discretion, is making these sentences run consecutive, the Court feels that these are separate, independent cases but they are brought under one Information, three distinct acts of violence against three distinct people and the Court feels that under such a posture of the facts that the sentences should be consecutive. . . .”

Appellant’s contention is, therefore, unpersuasive because the trial record demonstrates the exercise of discretion as a reason for imposing the consecutive sentences.

Defendant’s second contention is that he was denied effective assistance of counsel at trial and on the direct appeal of his conviction. We first note that defendant’s brief fails to comply with Civil Rule 84.04(d), V.A.M.R., which requires an appellant to precisely identify the points relied upon. He has failed to state wherein and why his counsel was defective. As we have often said, this court cannot afford the luxury of scrutinizing the appellant’s brief or the transcript for the errors complained of, State v. Gomillia, 529 S.W.2d 892, 895 (Mo.App.1975). In the interests, however, of terminating this prolonged litigation, we have surveyed the entire record and are able to decipher the specific points relied upon as error. We will consider these. Cf. Boyer v. State, 527 S.W.2d 432, 437 (Mo.App.1975) and Griffith v. State, 504 S.W.2d 324, 327 (Mo.App.1974).

As a general rule, to establish ineffective assistance of counsel, the burden is on the appellant “to establish a serious dereliction of duty on the part of his counsel which materially affected his substantial rights . . . The dereliction should be of such grave nature as to obviously result in a miscarriage of justice . . . Matters of counsel’s strategy or judgment, even though wrong, do not support such a charge.” McNeal v. State, 503 S.W.2d 19, 24 (Mo.App.1973). The defendant has charged that his counsel failed to properly perform his duty in three instances — once during the trial and twice on the direct appeal of his conviction. These will be treated separately.

Prior to his trial for carrying a concealed weapon, the defendant underwent two psychiatric examinations. He asserts that these reports were inconsistent and his counsel was derelict in failing to contest the second psychiatric report and thereby waiving the competency hearing which becomes mandatory once a psychiatric report is contested, § 552.020(6), RSMo Supp.1971.

Defendant cites as authority Briggs v. State, 509 S.W.2d 154 (Mo.App.1974), where this court held that it was an abuse of discretion for the trial court not to order a sua sponte hearing when bona fide doubt of the defendant’s competency has been raised. Defendant argues by analogy that if a trial judge has abused his discretion by failing to order a sua sponte hearing when a psychiatric report is internally inconsistent, an attorney fails to adequately represent his client by not objecting to a second, inconsistent psychiatric report on his client. In Briggs, a single report was internally inconsistent—it stated that the defendant’s mental defect existed at the time of the alleged offense, that he did not know the nature of his actions, that he required psychiatric hospitalization and yet that he had the capacity to understand the proceedings against him. Id. at 155.

Although the reports in the present case varied at one point, basically the reports were consistent. Both stated that (1) the defendant had manic depressive illness and an antisocial personality which was present prior to the alleged crime but (2) did not have such illness at the time of the crime and (3) the defendant had the capacity to understand the nature of the proceedings against him and assist in preparing a defense. The only discrepancy was the prognosis—the May 15, 1973, report said the defendant needed further out-patient care while the July 6, 1973, report said the defendant no longer needed further active treatment but might in the future.

Compared with the gross inconsistency in Briggs, supra, the variation in the prognosis of the two reports in this case is slight. Therefore, this court does not find that the defense attorney erred in failing to contest the second psychiatric report.

Defendant asserts the next two errors his attorney made were on appeal. Defendant’s competency was established for the trial on the charge of carrying a concealed weapon and that finding was adopted by the court in the robbery trial. At the robbery trial, the defense counsel objected to this determination and asked the court to briefly interrogate the defendant to determine his mental capacity to stand trial. The motion was overruled and the trial commenced. Defendant claims that his counsel failed to adequately represent him because on the appeal of the defendant’s conviction his attorney did not raise the denial of this motion as error, or cite the court for abuse of discretion for failing to hold a sua sponte hearing to determine his competency.

A court is not authorized to consider errors made by counsel on appeal because if error was found only the appellate proceeding would be invalid, not the trial proceeding which initially ordered the conviction. The proper relief for errors on appeal is to vacate the judgment affirming the conviction and redocket the cause for another hearing in the reviewing court, State v. Schaffer, 383 S.W.2d 698, 700 (Mo.1964).

Even if we were not precluded, however, from reviewing appellate errors on a 27.26 motion, the defendant’s charge is without merit. To show that he received ineffective counsel because his attorney failed to raise a point on appeal, a defendant must bear a heavy burden of proof showing that his attorney “ . . . acted with prejudice or improper motives” or that “discarding the points on appeal was patently wrong. Where this had not been shown, counsel is entitled to rely upon his own judgment . . .” Boyer v. State, 527 S.W.2d 432, 438 (Mo.App.1975).

We do not find that the defendant’s attorney was “patently wrong” in failing to raise as error the denial of a competency hearing, especially since the defendant had received two psychiatric examinations already which pronounced him competent to stand trial. In cases where serious offenses are involved attorneys often request mental examinations for defendants. After a favorable report has been received, however, a defense counsel is not required to pursue the question. Shubert v. State, 518 S.W.2d 326, 328 (Mo.App.1975).

In addition, the court did not abuse its discretion in failing to order a sua sponte hearing and therefore the defense counsel did not err in neglecting to raise this point on appeal. Only when the evidence raises a “bona fide” doubt of the defendant’s competence to stand trial must a judge conduct a sanity hearing. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) and McCormick v. State, 463 S.W.2d 789, 790 (Mo.1971). While an attorney’s suggestion that his client is incompetent is a factor which should be considered, it is not determinative, Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

The evidence in this case did not raise a bona fide doubt as to the defendant’s competence. Although his attorney stated that he thought his client’s mental condition had deteriorated, there was no evidence to support this claim. In fact, the evidence indicates that the defendant was competent for within three months he had had two favorable psychiatric examinations.

Therefore, we find that the defendant has failed to sustain his heavy burden of proof and has not demonstrated that he was denied effective assistance of counsel. At trial, counsel did not err in failing to object to the second report as inconsistent because the reports were consistent on the basic question of competency.

While alleged errors made by counsel on appeal cannot be reviewed in a 27.26 motion, in any event we find that the defense counsel did not abridge his duty by failing to raise the points previously discussed. An attorney’s judgment is entitled to considerable deference, Boyer v. State, supra, and the arguments the defendant claims should have been raised clearly would not have resulted in reversal.

The defendant’s third contention is that the trial court erred in refusing his requests for an evidentiary hearing and for assistance of counsel for his 27.26 motion. Crim. Rule 27.26(e), V.A.M.R. provides that an evidentiary hearing shall be held “. if issues of fact are raised in the motion, and if the allegations thereof directly contradict the verity of the records of the court.” (Emphasis added.) Thus, “ . [a] 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo.1974).

Here, the defendant sought an evi-dentiary hearing so that he could call “psychiatrists, psychologists, and attorneys at law ... to show Movant’s incarceration in (sic) impermissable under the Constitution of Missouri and the United States.” This request does not even allege facts, much less facts contradictory to the prior record. Therefore, the trial court acted properly in denying the defendant’s request for an evidentiary hearing.

Rule 27.26(h) provides that the court shall appoint counsel to assist the indigent prisoner in his 27.26 motion if the motion presents questions of law or issues of fact. The defendant does not allege that his motion was within this statutory criteria for appointment of counsel. Rather, he maintains that discretionary appointment of counsel at the post conviction stage is unconstitutional. For support, he relies on United States Supreme Court cases which emphasize the importance of counsel. Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

The Supreme Court has never recognized the right of counsel at post conviction proceedings. Douglas v. California, supra, and Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Nor has this court. In Winston v. State, 533 S.W.2d 709, 713-15 (Mo.App.1976) the defendant raised this same contention and we held that the Constitution did not require counsel in post conviction proceedings. For the reasons set forth in the above opinions we find the defendant’s charge that discretionary appointment of counsel is unconstitutional to be without merit. Furthermore, because the defendant’s request does not raise questions of law or issues of fact, which are statutory criteria for appointment of counsel on a 27.26 motion, the trial court’s denial of counsel was not error.

Accordingly, judgment is affirmed.

STEWART and REINHARD, JJ., concur.

      . 2) Diagnoses: (1) Manic-depressive Illness, Depressed, and moderately severe. This is a mental disease according to Section 552.010 RSMo. and was present prior to the alleged crime on November 6, 1972. (2) Antisocial Personality, suspected.
      3) The accused has the capacity to understand the nature of the proceeding against him and assist in preparing a defense.
      4) The accused at the time of the alleged crime did not have a mental disease which would have made him unable to know the nature, quality or wrongfulness of his conduct or unable to conform his conduct to the requirements of the law.
      5) The patient is in need of further treatment but does not need further psychiatric hospitalization.

      . 2) Diagnoses: (1) Manic-depressive Illness, Circular, in remission. This is a mental disease according to Section 552.010 RSMo. It appears to have been present prior to his arrest in November of 1972. (2) Antisocial Personality.
      3) The accused has the capacity to understand the nature of the proceedings against him and to assist his attorney in preparing a defense.
      4) At the time of the alleged crime the subject did not have a mental disease which would have made him unable to know the nature, quality or wrongfulness of such conduct nor would he have been unable to conform his conduct to the requirements of the law.
      5) The patient is no longer in need of further active treatment, though it may be required at some future time.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Wayne COLEMAN, Defendant-Appellant.
    No. 38202.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1977.
    George E. Sullivan, O’Fallon, for defendant-appellant.
    Jess L. Mueller, Pros. Atty., Lincoln County, Troy, for plaintiff-respondent.
   DOWD, Judge.

Defendant-appellant appeals his conviction by a jury in the Circuit Court of nonsupport of a minor child under § 559.358, RSMo 1969, a misdemeanor, § 556.040, RSMo 1969. Defendant was ordered to pay a fine of five hundred dollars. We reverse and remand for a new trial.

As defendant does not question the sufficiency of the evidence to sustain the conviction, a brief summary of the facts will suffice. The complaining witness testified that she had had sexual relations with the defendant several times in January 1974 and on February 14, 1974. The child was born nine months later on November 14, 1974. Defendant denied having normal sexual relations with the complaining witness on any night but the night he met her in January 1974. The complaining witness denies that she had intercourse with anyone but defendant from the time she met him until the birth of the child. She also stated that the defendant acknowledged to her that the child was his. Defendant denies that he is the child’s father.

On this appeal, defendant raises only one Point Relied On. He contends that the trial court erred in refusing to permit the prospective jurors to answer the question “Has anybody, any one of the eighteen of you ever had a similar situation within your family circle.”

During voir dire defendant’s attorney, Mr. Sullivan, was examining the jury panel and the following occurred:

“MR. SULLIVAN [defense counsel]: . As the Court has informed you, this is a case in which the State has charged that Wayne has not supported a child. That is a crime. Wayne denies being the father of this child. Now, permit me to ask this question: And I know it is personal, but we got to know. Has anybody, any one of the eighteen of you ever had a similar situation within your family circle?” (Emphasis added).

The prosecuting attorney made no objection. However, the trial judge interrupted as follows:

“THE COURT: Mr. Sullivan, the Court believes that that would be an improper question as broadly stated as it is. I am going to ask you not to ask that question at this time.
MR. SULLIVAN: Your Honor, I think I am entitled to know.
THE COURT: Approach the bench gentlemen. (Counsel approach the bench and the following proceedings occurred). THE COURT: Go ahead, state your objection.
MR. SULLIVAN: I think I am entitled to know if because of a personal relationship within the family circle, either a daughter or a female relative being in the same situation or the other way, a man in the family circle being accused of this, because of that particular thing they have a preconceived notion about the case.
THE COURT: Mr. Sullivan, I believe this comes within the same category as asking these persons about having committed any previous crime. This is a matter that may be available through search of records, but is not a proper question to ask on voir dire of the jury panel and again I am going to instruct you and require you not to ask that question.
MR. SULLIVAN: I guess my exception is noted.
THE COURT: It is.”

The proceedings returned to open court.

“MR. SULLIVAN: Ladies and gentlemen, is there anything about what you know about this case right now that leaves any doubt in any of your minds as to your ability to be, if selected, a fair and impartial juror? I find the panel satisfactory your Honor.”

In order to resolve defendant’s Point Relied On two questions must be answered. The first is whether or not the trial judge improperly prevented defendant’s attorney from asking the veniremen if a similar situation had occurred within their family circles, and second, whether the defendant’s objection to the court’s action was waived by stating the panel was satisfactory.

We believe this was a proper question in order to discover possible bias, attitudes and experiences by the veniremen and thus guarantee to defendant the right to trial by a fair and impartial jury. The trial court improperly curtailed defendant attorney’s voir dire examination by preventing him from asking the question set out above and in so doing abused his discretion.

Great liberality is allowed in inquiring into attitudes and experiences of the jury panel. The court in State v. Granberry, 484 S.W.2d 295, 299 (Mo. banc 1972) quoted with approval State v. Miller, 207 S.W. 797, 798 (Mo.1918) as follows:

“ ‘It is the rule in this state that a liberal latitude is allowed in the examination of the jurors on their voir dire. * * * [2] The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.’ ”

The judge was wrong in not permitting the question to be asked. It was a necessary question in determining possible prejudice on the part of the jurors towards the defendant.

The state argues that the defendant’s attorney waived his objection to the trial judge’s ruling because of his failure to file a motion to discharge the jury panel and by stating he found the jury satisfactory. The state relies heavily on State v. Turnbough, 498 S.W.2d 567 (Mo.1973). However, since the case at bar was submitted to this Court the case of State v. Brown, 547 S.W.2d 797 (Mo. banc 1977) was handed down which affects our disposition of the state’s argument and this appeal. The Court in Brown held that it is not necessary to move to quash or discharge the panel in order to preserve for inclusion in a motion for new trial and review on appeal the specific objections made during voir dire to questions asked by the other party or to preserve for review the trial court’s refusing to permit proposed questions to be asked of the panel. The court in Brown stated: “To the extent that Turnbough is in conflict with this holding, it is overruled.” (p. 805). Therefore, defendant’s attorney did not waive his objection by not making a motion to discharge the panel.

Nor do we believe defendant’s attorney waived his objection to the court’s curtailment of his voir dire examination by his last statement of the voir dire examination that “I find the panel satisfactory.” We must examine this statement in the context in which it was made to determine if the defendant’s attorney waived his objection or acquiesced in the court’s ruling. Defendant’s attorney did everything possible to ask the question and preserve his record. He asked a proper question, then approached the bench and explained to the court why the question was important. He then pointed out the danger of a preconceived notion or prejudice by the jury on this matter. The court stated this information asked for in the question could be discovered by a “search of records.” The court viewed the question as analogous to asking a juror about his criminal record. We do not agree with this conclusion. However, we believe if any attorney on voir dire saw fit, he could inquire as to the criminal record of a juror. Such an inquiry would certainly go to the qualification of a venireman to sit on a jury.

Nor do we understand what records would disclose the information sought by the question. Even if records were available, it would be impossible to discover this information during the voir dire examination.

Under the facts of this case we believe it is clear that the defendant’s attorney merely saying the jury was satisfactory did not waive his objection nor acquiesced in the ruling. He made a clear, strong record in objecting to the court’s ruling. And to stress his objection unnecessarily stated “I guess my exception is noted” and the court replied: “It is.” This was the last statement made to the panel after a protracted discussion of the objection outside the hearing of the jury. Undoubtedly the statement that the jury was satisfactory was an attempt to mollify the panel after the court had interrupted the voir dire and informed the attorney that the question was improper and instructed the attorney not to ask the question. We believe that defendant’s attorney made it clear that so far as it could be determined from the restricted examination of the jurors that they were satisfactory. Fedorinchik v. Stewart, 289 Mich. 436, 286 N.W. 673 (1939). In the context in which the statement was made, we do not believe the attorney waived his objection by stating the jury was satisfactory-

Nor do we believe we are in conflict with that portion of Turnbough which discussed the perils of accepting a panel and stating the panel is satisfactory after making objections during the voir dire examination. The court in Brown in discussing Turn-bough further held that by stating a panel was “the accepted panel” that this did not constitute a waiver of any objections to the selection of the jury. The court in Brown then cited Fedorinchik with approval and analyzed the Fedorinchik case as follows at p. 802:

“. . .In Fedorinchik v. Stewart, 289 Mich. 436, 286 N.W. 673 (1939), the plaintiff’s attorney wanted to ask the prospective jurors whether they had insurance with the defendant’s insurer. The trial court, however, refused to give its permission to allow the question. The examination of the panel proceeded and subsequently plaintiff’s counsel announced he was satisfied with the jury. The Supreme Court of Michigan held the trial court erred in restricting the scope of voir dire and, with reference to the plaintiff’s express acceptance of the panel, the court stated at 675:
‘This, however, should not be held to be a waiver of plaintiff’s earlier insistence upon the right to have the jurors examined on voir dire in the manner hereinbefore noted. There is no intimation that counsel was not acting in entire good faith in asking for this further examination. He was eminently fair with the court. He made his position clear, took an exception to the adverse ruling, and acted ethically in accepting the trial court’s decision. So far as could be ascertained from the restricted examination of the jurors they were acceptable. By so announcing plaintiff did not waive his rights under the very definitive record he had made.’ ” (Emphasis ours).

The court, in Fedorinchik, reversed and remanded the case for a new trial.

In Fedorinchik, like the case at bar, the defendant’s attorney was unduly restricted during his voir dire examination but announced he was satisfied with the jury. The Court held because of the clear definitive record made by the attorney in objecting and his preserving his objection, the attorney did not waive his objection.

Therefore, we hold that the defendant was improperly curtailed in the voir dire examination of the jury to his prejudice and the defendant’s attorney did not waive the objection to the curtailment.

The judgment is reversed and the cause is remanded for a new trial.

SIMEONE, C. J., and SMITH, J., concur.


author: PER CURIAM:

text:
    In re the MARRIAGE of Vicki Jo DICKEY, Appellant, and Jackie Ben Dickey, Respondent.
    No. 9933.
    Missouri Court of Appeals, Springfield District.
    July 8, 1977.
    Max H. Glover, Webb City, for appellant.
    Julian J. Ossman, Myers, Webster & Perry, Webb City, for respondent.
   PER CURIAM:

Upon the wife’s petition, the Circuit Court of Jasper County entered judgment granting the parties a dissolution of their marriage; awarded the care, custody and control of the parties’ now 10-year-old son to the husband, with reasonable visitation rights to wife and the right of the wife to have custody of the boy for two months each summer; and awarded as maintenance to the wife, the sum of $15 per week for a period of 18 months. The wife appealed and here claims the trial court erred in not awarding her custody of the child and in not awarding her attorney fees.

The judgment of the trial court is reviewable under Rule 73.01, V.A.M.R., because the case was court-tried. We have carefully read the transcript on appeal and the briefs filed by the parties and conclude: that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence; that no error of law appears; and that an opinion would have no precedential value. The judgment nisi is affirmed in compliance with Rule 84.16(b), V.A.M.R.

All concur.


author: HOGAN, Judge.

text:
    William C. SUNDERWIRTH, Plaintiff-Appellant, v. Jean Sunderwirth WILLIAMS, Defendant-Respondent.
    No. 10324.
    Missouri Court of Appeals, Springfield District.
    July 11, 1977.

      Edward J. Murphy, Inc., Butler, for plaintiff-appellant.
    Donald B. Russell, James R. Bickel, Russell & Brown, Nevada, for defendant-respondent.
   HOGAN, Judge.

This appeal is taken from an order modifying a decree of divorce. Remarkably, the focal issues on appeal — except for the matter of attorney’s fees — involve neither ex-cessiveness nor inadequacy of the award made; the only real question is whether the trial court had authority to modify the decree as it did. Consequently, we undertake only such recountal of the facts as is necessary to an orderly disposition of the appeal.

William C. Sunderwirth, a practicing osteopathic physician, was divorced from his wife, now Jean Williams, August 16, 1968. Concomitantly, they executed an extensive “separation agreement.” As premises, the agreement recites that the parties intend to settle all their property rights and their rights to custody of their four minor children, who are specifically identified. The defendant is given custody of the children. The plaintiff agrees to pay defendant the sum of $150 per month per child “until each child shall marry, attain 21 years of age, dies [sic], becomes self-supporting, or otherwise emancipated. In the event any child goes to college the child support for that child shall continue until her education is completed.” The plaintiff further agrees to pay defendant the sum of $700 per month as support and maintenance during the parties’ joint lives or until defendant remarries. Plaintiff also assigns his interest in three life insurance and two disability insurance policies in order to provide for the education, support and maintenance of the children in the event of plaintiff’s death. The agreement specifically and in terms recites that the defendant shall “keep said . policies of insurance in force during the period of [plaintiff’s] obligation to support any of said children.” Otherwise, the agreement disposes fully of the parties’ property and their rights therein.

The decree of divorce, entered August 16, 1968, does not incorporate the separation agreement, but recites a finding that a “contractual property settlement” was executed by the parties and a further finding that the agreement is reasonable and valid and a full and complete settlement of all the parties’ marital and property rights. The only specific findings duplicating the recitals of the separation agreement are those declaring that the parties are the parents of four children: Paula Lynn, born September 23, 1953; Jama Beth, bom July 1, 1955; Lisa Denise, born May 26, 1959, and Stacy Dawn, born July 11, 1962. In general terms, the decree finds the custody and maintenance provisions of the separation agreement ample and reasonable. The court in terms retains jurisdiction to enter further orders concerning the care, support, maintenance and custody of the children.

Defendant and the children lived well, even affluently by community standards, from the date of the divorce to the time this proceeding was begun in March 1975. As of January 1975 defendant was receiving $7,200 annually as child support, $8,400 annually as alimony, and $3,600 annually in payment of a promissory note made to her by the plaintiff as part of the property settlement. Defendant was employed as a secretary and bookkeeper at a $4,500 annual salary. Paula, the eldest child, was graduated from Central Missouri State University in 1975; defendant’s evidence strongly indicates that she is now emancipated. Jama Beth, the second child, was in her third year at our state university at Columbia at trial time. Lisa was a third-year high school student and Stacy was finishing grammar school. All three elder children owned or had automobiles. Defendant estimated that she spent $13,388 supporting her children in 1973, and $16,332 supporting them in 1974. Plaintiff contributed $7,200 annually to the payment of these expenses; the balance, defendant testified, had come from her “personal” funds.

Since the issue of excessiveness vel non is not raised, we need not comment on plaintiff’s financial condition beyond observing that he, too, seems to have prospered since the parties’ divorce. Although the plaintiff testified that he “started out for all practical purposes — flat broke” after his divorce, the record shows unmistakably that his financial resources are extensive. Plaintiff’s federal income tax return for 1974 indicates that he and his present wife had an adjusted gross income of $50,884.04. Of this amount, plaintiff paid $19,046.05 to the defendant.

Defendant’s present need for funds arose because she was, as are all parents, harassed by inflation and because she decided to remarry, which, of course, terminated her right to alimony. Defendant’s motion to modify avers in substance that 1) her present condition has changed; 2) the children’s needs have increased, and she is unable to support them on $150 per month per child; 3) that two of the children are now enrolled in and are attending an accredited college; 4) that defendant is “about to be” remarried and her alimony payments, “most of which were being used for the support of the children,” will terminate; 5) that the expense for the support of the children has increased substantially to an amount in excess of $1,000 per month; 6) that the cost of maintaining insurance on the plaintiff’s life has increased to $200 per month. Prayer of the motion was that plaintiff be ordered to pay the sum of $250 per month per child as child support “until each child shall marry, attain twenty-one years of age, dies [sic], becomes self-supporting or otherwise emancipated, or if attending college until completion of said education”; that plaintiff be ordered to pay the sum of $200 per month for insurance coverage protection, and that plaintiff be required to pay defendant the sum of $2,000 per year per child for the educational support of each said child as may be now or in the future attending any accredited college or university. There was an additional prayer for attorney’s fees in a reasonable amount.

The trial court heard a great deal of diffusely presented evidence, which as we say, we shall not recount. The trial court took the cause under advisement, and on March 19, 1976, entered an order finding that there had been such a change of circumstances as to make the original decree unreasonable. The court further found that “the necessary and proper amount of child support for each of the children . is $250 per month per child until each respective child shall marry, attain twenty-one (21) years of age, die or becomes self-supporting,” and added that in the event any such child enrolls in an accredited college or university such payments shall continue until such child’s education is completed. The court further found that the provision of the separation agreement concerning the life insurance policies was a provision relating to the support of the children and was, therefore, subject to modification by the court. Accordingly the trial court entered the following decree:

“1. Plaintiff ... is ordered to pay the sum of $250.00 per month to Jean Williams for each minor child as child support to be paid each month until such minor child shall marry, attain twenty-one (21) years of age, die, becomes self-supporting or otherwise emancipated, or if attending college until completion of said education.
“2. Plaintiff ... is further ordered to pay to Jean Williams the sum of $225.00 per month per child for each month each such child as may be now or in the future may attend any accredited college or university, for the educational support of said child, while attending college.
“3. Plaintiff . , . is further ordered to pay to Jean Williams the sum of $200.00 per month for the payment of premiums for the insurance policies as stated in Paragraph 4 of the Separation Agreement ... to provide protection for the education, support and maintenance of the children in the event of the death of [plaintiff].”

In this court the appellant plaintiff has briefed three points. The first of these is that the trial court exceeded its authority and erroneously declared and applied the law in requiring him to pay defendant “the sum of $225.00 per month per child for each month each such child as may be now or in the future may attend any accredited college or university, for the educational support of said child, while attending college.” Plaintiff readily concedes that the cost of a child’s education is a proper factor to be considered by the court in making allowance for his [or her] support, Anderson v. Anderson, 437 S.W.2d 704, 710 [5][6] (Mo.App. 1969), and admits that a husband may bind himself contractually to furnish his children with a college education, even though the term of the agreement runs beyond the child’s minority. Houston v. Snyder, 440 S.W.2d 156, 160 [7-9] (Mo.App. 1969); Jenkins v. Jenkins, 257 S.W.2d 250, 254 [4] (Mo.App. 1953). Plaintiff’s objection, paraphrased, is that the trial court lacked the authority to impose an open-end decretal obligation upon the plaintiff to continue educating his children beyond the date of their majority or emancipation. In support of his contention, plaintiff cites Meyer v. Meyer, 493 S.W.2d 42, 46 [3] (Mo.App. 1973), which holds that the emancipation of a minor operates ex proprio vigore to terminate duty of support, and Block v. Lieberman, 506 S.W.2d 485, 486-487 [1-4] (Mo.App. 1974), which holds that the rights of a dependent child who is emancipated or has reached his majority may not be enforced against the noncustodial parent by the custodial parent, but must be enforced by the child himself. We agree that to the extent the decree at hand purports to adjudicate an obligation to support an adult child it is void, regardless of plaintiff’s consent to educate his children. Martin v. Martin, 539 S.W.2d 756, 757-758 [3-5] (Mo.App. 1976). The real difficulties with the decree entered here, however, are that a) it is not supported by substantial evidence, and b) it is too indefinite to be susceptible of enforcement.

Since Anderson v. Anderson, supra, 437 S.W.2d 704, was decided, we have taken it as settled law that a father may be liable to educate his child beyond the secondary or “high school” level. We are also aware that in Anderson, supra, 437 S.W.2d at 711-712 [9], it was held that a custodial mother, being in daily contact with her child, and being presumably familiar with the child’s talents and abilities should determine what educational institution her child should attend. We do not believe, however, that the court meant to hold dogmatically that every father, regardless of his financial means, is required to bear the full expense of a college education for his child, nor to hold that every custodial mother has the unbridled discretion to expose every child to a college education regardless of the child’s talents and aptitudes, nor to confer upon the custodial mother the unfettered right to permit her child to pursue whatever tentative intellectual discipline he fancies as far as he chooses. We do not believe any fixed, arbitrary principles could be laid down which would adequately state a father’s duty to educate his child. As with all other allowances which are made under the Dissolution of Marriage Act, the trial court is vested with considerable discretion concerning the amount to be paid, cf. In re Marriage of Schulte, 546 S.W.2d 41, 46-47, and authorities cited nn. 6, 7 (Mo.App. 1977), but some evidentiary foundation must be laid for the exercise of that discretion. Without going into laborious detail, our survey of the general literature convinces us that in determining whether or not an allowance should be made for a college education, at least to the baccalaureate level, and in fixing the amount of the allowance, the trial court should consider the financial ability of the father; the ability and capacity of the child for college work; the nearness of the child to his [or her] majority; whether the child is self-supporting or not, and the father’s willingness to provide for such education, as shown by some agreement or other indication on his part. An-not., 56 A.L.R.2d 1207, 1209, § 1 [b] (1957); 56-63 A.L.R.2d Supp. at 63-68 (1976). Moreover, we are convinced that the trial court has discretionary power to participate in the selection of an educational forum if the child’s best interests will be served thereby. Annot., 36 A.L.R.3d 1093 (1971).

In this case there is no doubt that the plaintiff is a man of abundant means, nor is there any question that he has agreed to provide his children with an undergraduate college education. There is no showing however of the ability and capacity of the two younger children for college work, nor any convincing fact or circumstance tending to show the reasonable cost of support and maintenance of any of the children now attending college at the particular institution where they have matriculated or plan to enroll. In these two respects, the decree lacks evidentiary support.

It must also be borne in mind that decrees for the payment of money in dissolution (divorce) cases are subject to the requirement that a judgment must be sufficiently certain to be susceptible of enforcement in the manner provided by law. Rodden v. Rodden, 527 S.W.2d 41, 43-44 [6-8] (Mo.App.1975); Loomstein v. Mercantile Trust National Ass’n, 507 S.W.2d 669, 670-671 [1-3] (Mo.App. 1974); Bishop v. Bishop, 151 S.W.2d 553, 557 [9, 10] (Mo.App. 1941). The particular paragraph of the decree ordering the payment of “$225.00 dollars per month per child for each month each such child as may be now or in the future may attend any accredited college or university, for the educational support of said child, while attending college,” is undecipherable to us, even resorting to the pleadings and the property settlement. As noted, taken in connection with paragraph one (1) of the order, it purports to extend the plaintiff’s duty beyond the emancipation of his children, although by law, his duty of support terminates when his children reach their majority. Moreover, one is left to inquire whether or not the college or university is accredited, and by whom, and whether at the moment that child is “attending college.” Execution upon this provision would require another hearing; it therefore is not sufficiently definite to be capable of enforcement.

The plaintiff further complains that the trial court erred in requiring him to pay defendant the sum of $200 per month to maintain insurance policies on plaintiff’s life, maintaining that the court was without authority to do so, because plaintiff had never contracted to maintain such life insurance and could not lawfully be required to do so. Defendant responds that because the life insurance provision was intended as a provision for the support of the children, it was subject to modification regardless of the parties’ agreement. The parties have briefed and discussed this point in terms of the contractual-decretal distinction elucidated in such cases as LaFountain v. LaFountain, 523 S.W.2d 847 (Mo.App. 1975), and the exception to that rule stated in Williams v. Williams, 542 S.W.2d 563, 566 [1-3] (Mo.App. 1976), and Roberts v. Roberts, 292 S.W.2d 596, 599 [7-9] (Mo.App. 1956). We are aware of the distinction, see Annot., 61 A.L.R.3d 520 (1975), but have the view that other principles may be controlling here. There is a principle that a father may not be required to support his dependent children, minors or incapacitated adults, after his death, Gardine v. Cottey, 360 Mo. 681, 710, 230 S.W.2d 731, 750 [28], 18 A.L.R.2d 1100, 1123 (banc 1950); Fower v. Fower Estate, 448 S.W.2d 585, 587 (Mo. 1970), and in other jurisdictions this principle has been held to bar an order requiring a noncustodial father to insure his life for the benefit of his children. See, e. g., Laws v. Laws, 164 Colo. 80, 432 P.2d 632, 635 [4-6] (banc 1967); Riser v. Riser, 7 Wash.App. 647, 501 P.2d 1069 (1972). On the other hand, there is authority that a trial court may require the noncustodial father to maintain life insurance as security for the payment of the obligations imposed on him by the divorce decree. See Annot., 59 A.L.R.3d 9, at 37-42, § 8 (1974). There is also a principle as above noted that a child must enforce his or her rights against a noncustodial parent in his own name upon attaining his majority or becoming emancipated. Block v. Lieberman, supra, 506 S.W.2d at 486-487. Neither of these principles has been advanced as a reason why the insurance agreement should be held valid or invalid, and we shall not discuss their application sua sponte. The trial court may wish to be advised in the premises upon further hearing.

Plaintiff also complains that the trial court erred in awarding the defendant attorney’s fees in the amount of $1,256.62 and in requiring him to pay it. We find no abuse of discretion and the award of attorney’s fees is affirmed.

Otherwise, for the reasons noted, the cause is reversed and remanded.

All concur.

      . On this motion to modify, the parties were designated “plaintiff’ and “defendant” as if this proceeding were a continuation of the original proceeding. We shall, for convenience, refer to Dr. Sunderwirth as the plaintiff and to Mrs. Williams as the defendant. The parties recognize this is a new and independent proceeding. Hayes v. Hayes, 363 Mo. 583, 589, 252 S.W.2d 323, 327 [8] (1952).

      . The testimony is conclusional, but it was received without objection or comment. “Q. So at the present time living in the home we will count Paula as now working and living away from home — right? A. Right.” “Q. Your oldest daughter is now emancipated and she has a job and works away from home? A. That’s correct.”

      . This includes $5,400 paid to plaintiff’s present wife, Karen, apparently by plaintiff’s professional corporation.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Larry HARPER, Appellant.
    No. 10445.
    Missouri Court of Appeals, Springfield District.
    July 12, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Jay P. Cummings, Springfield, for appellant.
    Before BILLINGS, C. J, and STONE and TITUS, JJ.
   TITUS, Judge.

Tried under the habitual criminal law, defendant was jury-convicted of second degree burglary and stealing and court-sentenced to consecutive terms of imprisonment of six and four years.

The points relied on, while composed with some indifference to the requirements of Rule 84.04(d), V.A.M.R., will, nevertheless, be considered upon merits where deserving.

I

During voir dire examination of the jury panel, the prosecutor asked the array a question to which defendant objected. The court promptly sustained the objection and properly explained the reason therefor. Defendant did not ask for a mistrial but now says the court erred in not declaring a mistrial sua sponte. As defendant appeared content with the bestowal of the only relief requested, the matter is not available as a viable point on appeal and precludes the conclusion that the trial court’s failure to declare a mistrial ex mero motu affords any basis for a new trial. State v. Jackson, 511 S.W.2d 771, 775[4] (Mo.1974); State v. Crider, 419 S.W.2d 13, 15[6] (Mo.1967); State v. Drake, 514 S.W.2d 653, 655[1] (Mo.App.1974).

II

In closing argument the prosecuting attorney referred to the inability of the state’s witnesses “to remember for sure the dates” without consulting “the papers” whereas the defendant’s witnesses “could remember those particular dates” without apparent research. He then concluded, “No one can remember the exact dates that long ago unless they have rehearsed it and gotten together on it ahead of time.” Defendant’s counsel: “If it please the Court, I will object to that last statement of the prosecutor. The Court: This is argument. The jury understands this is argument and the jury can weigh it for whatever value it might be.”

Defendant now claims there was no evidence to support an argument anent rehearsal of testimony and that such a statement “tended to inflame and prejudice the jury regarding the testimony of defense witnesses.” This point is not for review. The objection was general and did not advise the court why the argument was claimed to be improper. State v. Underwood, 530 S.W.2d 261, 264 (Mo.App.1975). To preserve an overruled objection for appellate consideration, the objection made to the trial court must be the same or substantially the same as that set forth in the motion for new trial and that relied on in the brief on appeal. State v. Jones, 515 S.W.2d 504, 506[3, 4] (Mo.1974). In addition, a prosecutor is afforded wide latitude in arguing on the credibility of defendant’s witnesses and the truth or falsity of their testimony from the state’s point of view [State v. Griggs, 445 S.W.2d 633, 636[2] (Mo.1969)], and because, in the first instance, the control of arguments is a trial court function, appellate courts seldom display a propensity for examining complaints not properly brought to the trial court’s attention. State v. Henderson, 530 S.W.2d 382, 384 (Mo.App.1975).

Ill

Amid the course of closing argument and in commenting upon the alleged disparity between the testimony of defendant’s various alibi witnesses, the prosecutor inquired of the jury: “What is the first word that comes to your mind when you hear the word alibi?” This was followed by the rhetorical question: “Isn’t it lie?” Defendant made no objection. While admitting any complaint to this oratory was not preserved for review [State v. Morgan, 444 S.W.2d 490, 494[6] (Mo.1969)], defendant urges the averred error should be treated as a plain error falling within the provisions of Rule 27.20(c), V.A.M.R.

Invocation of the plain error rule is done on a case by case basis and not in every case where it is claimed for the first time on appeal. State v. Wendell, 542 S.W.2d 339, 343[12] (Mo.App.1976). Finding error alone is not enough [State v. Watts, 515 S.W.2d 854, 856[2] (Mo.App.1974)] because before the rule will be applied, there must be a sound, substantial manifestation and a strong, clear showing that injustice or a miscarriage of justice will otherwise result. State v. Caffey, 457 S.W.2d 657, 660[4] (Mo.1970). Out-of-context extractions oft present portraits of portentous proportions and appear to be more prejudicial to a defendant than when seen in the total light of the overall evidence and argument. State v. Henderson, supra, 530 S.W.2d at 385. That of which defendant now complains, does not appear to be error, plain or otherwise, when viewed in the entirety. The state’s complained-of questions were prefaced and followed by a critique of what the prosecutor asseverated to be inconsistencies in the testimony of defendant’s alibi witnesses. For him to verbally perceive the testimony to constitute lies, does not render his mouthings plain error. Cf. State v. Jackson, supra, 511 S.W.2d at 775[7]; State v. Lay, 427 S.W.2d 394, 403[9] (Mo.1968); State v. Henderson, supra, 530 S.W.2d at 384[3].

IV, V and VI

In three of his next to last points, defendant lifts out of context from ten pages of the transcript eight statements made by the prosecutor and claims they constitute reversible error. The statements are: (1) “I am very sorry this burglary did not happen in front of a bunch of witnesses. But you know, that’s the way a successful burglar operates.” (2) “Yes, you brand him a criminal, but what you do here today will be remembered . . . .” (3) “The deter-rant effect you have on the criminal element in our society cannot be underestimated.” (4) “This is your community. If you want to let this man loose, then do so.” (5) Regarding circumstantial evidence— “Recent possession of stolen property has always been sufficient to convict a man in Missouri. All you have to do is look how recent it is.” (6) “Burden of proof is not an impossible burden. Beyond a reasonable doubt is not impossible. It is not beyond all doubt whatsoever.” (7) “It [the burden of proof] is not beyond any unreasonable doubt, rather it is a very realistic burden.” (8) “You heard from every witness in this case except one and that is your common sense, and it is a silent witness and it ought to be screaming out the truth to you right now.”

Defendant did not object to statements (2), (3) and (4), and in absence of objection to the argument of the prosecutor when it was made, the alleged prejudicial arguments were not preserved for review. State v. Carter, 478 S.W.2d 358, 361[4] (Mo.1972); State v. Savage, 522 S.W.2d 144, 146[1] (Mo.App.1975). The only objection made to statements (1) and (8) were very general, e. g., “I will object to that last statement.” Having only objected in a most general way, defendant cannot be heard to object on specific grounds not given the trial court. State v. Jones, supra, 515 S.W.2d at 506[4]; State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). Moreover, if statements (1) through (4) were improper, they were isolated, nonrepetitive remarks which, standing alone, would not call for relief under the plain error rule. State v. Crawford, 539 S.W.2d 633, 637[9] (Mo.App.1976).

As to (6) and (7): The Notes on Use under MAI-CR 2.20 prohibit a court’s efforts to define reasonable doubt. In State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975), it was held the prosecutor’s definition of reasonable doubt was improper argument but not reversible error because, as here, his remarks were brief and he properly discussed reasonable doubt in relation to the evidence. Wé do not find error, plain or otherwise, in admission of the prosecutor’s statements under the circumstances peculiar to this case [State v. Sanders, 541 S.W.2d 782, 784[1, 2] (Mo.App.1976)], but caution prosecutors that this ruling is not to be taken as an invitation for them to continue to skate on thin ice. Also as regards statement (8), the allusion to the “silent witness” was specifically designated to be “your common sense” and did not constitute the prohibited “direct and certain reference to the defendant’s failure to testify.” State v. Overall, 519 S.W.2d 549, 550 (Mo.App.1975).

As to statement (5): As an inference of fact and not as a presumption or inference of law, evidence of a burglary (undisputed here) and defendant’s unexplained possession of recently stolen property, permits an inference of guilt both as to burglary and stealing and is a sufficient basis upon which to submit the case to the jury and convict the defendant of both offenses. State v. Miller, 499 S.W.2d 496, 499[4] (Mo.1973). Nonetheless, in explaining State v. Swarens, 294 Mo. 139, 241 S.W. 934 (banc 1922), our Supreme Court in State v. Denison, 352 Mo. 572, 583, 178 S.W.2d 449, 456-457 (1944), pointed out that pronouncement of the rule to a jury was an unwarranted comment on the evidence, either via instruction or otherwise. In view of this and State v. Belleville, supra, 530 S.W.2d 392, it would appear that the prosecutor’s argument relative to the just-quoted rule was improper. However, it is to be noted that defendant’s objection to this isolated argument was that the prosecutor was arguing the law whereas, technically, the prosecutor made no reference to “the law” or to “a rule” but simply indicated that the recent possession of stolen goods was sufficient to convict a man or, in other words, permitted a factual inference of guilt. After considering the question at length, we believe no prejudice resulted to defendant from the prosecutor’s scant reference to the subject. Cf. State v. Van, 543 S.W.2d 827, 830 (Mo.App.1976). To establish error on appeal, plain or otherwise, defendant has the burden of showing that the complained-of error resulted in prejudice, an unfair trial, miscarriage of justice or manifest injustice. State v. Richards, 536 S.W.2d 779, 788 (Mo.App.1976). We do not feel defendant has satisfied that burden.

VII

At the trial defendant “objects to all instructions other than” those given at his request. In his motion for new trial, defendant’s complaint as to instructions was that they “did not properly set out the elements of the offense instructed upon and . that the same were confusing and misleading to the jury . . . [and] were not an accurate and precise statement of the law and were ambiguous and misleading, and when . . . considered and taken together . . were mid-leading [sic] and confusing to the jury.” On appeal defendant says “The Court erred in reading Instruction No. 4, MAI-CR 7.34, Modified, before reading to the jury Instruction No. 5, MAI-CR 7.22, Modified.” Not only is this point defective for failing to aver wherein and why it was error to read one instruction before the other, Rule 84.04(d), V.A.M.R., but it is obvious this complaint of the instructions was never made in the motion for new trial or otherwise. Objections to the instructions in the trial court were in nowise specific and specific objections thereto will not be entertained when raised for the first time on appeal. State v. Grey, 525 S.W.2d 367, 370[6] (Mo.App.1975); State v. Jackson, 519 S.W.2d 551, 559[21] (Mo.App.1975).

Augmenting the foregoing as required by Rules 28.02 and 28.08, V.A.M.R., we have examined and found the information to be in proper form and sufficient. Defendant stood trial on his plea of not guilty, the jury’s verdict was properly structured and responsive to the issues, punishment assessed by the trial court was in accordance with the law and within the range provided by statute, allocution was afforded defendant, and the judgment entered was proper. No error appearing prejudicial to the defendant, the judgment is affirmed.


text:
    Bobby Sue LYELL, Plaintiff-Respondent, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, Defendants-Appellants.
    No. 10421.
    Missouri Court of Appeals, Springfield District.
    July 13, 1977.

      Rick V. Morris, Acting Chief Counsel, William W. Clinkenbeard, Counsel, Jefferson City, for defendant-appellant Division of Employment Security.
    Charles B. Fain, Counsel, Jefferson City, for defendant-appellant Labor and Industrial Relations Commission.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This appeal is taken by the Labor and Industrial Relations Commission and the Division of Employment Security from a judgment and order of the Circuit Court of Pemiscot County holding that an award of a deputy, an appeals tribunal and the Industrial Commission denying employment security benefits to Bobby Sue Lyell was not supported by competent and substantial evidence within the meaning of § 288.210, RSMo 1969, Y.A.M.S. Stripped of eviden-tiary and procedural detail, the record presents two questions for determination:

1. Is there competent and substantial evidence that the claimant failed to report for work on July 21, 1975, because she was unable to find a baby-sitter for her children?

2. If so, does it follow that the claimant was disqualified from receiving benefits because she voluntarily left her work without good cause attributable to her work or to her employer?

Answering both questions affirmatively, we reverse and remand with directions to reinstate the award of the Commission.

Bobby Sue Lyell worked about three years on the “motor line” at Emerson Electric’s Motor Division plant at Kennett, Missouri. She was earning, she thought, $2.70 per hour “when I quit.” Mrs. Lyell had had “an ulcer and a bad back and stuff like that, and it kept [her] off work quite a bit,” but she had a baby-sitter of some sort, inferably a sister, until the summer of 1975. Her sister then “started hoeing cotton, and she got 2 kids, and with my 2 kids, they [fought] all the time, and [my sister] didn’t want to take them in the field with her.” The employer’s records showed that Mrs. Lyell worked Friday, July 11, 1975, but did not report on the following Monday. On Wednesday, July 16, claimant went to the personnel manager’s office and explained that she had been absent because she could not find a baby-sitter. The claimant doubted she could find a baby-sitter by the end of the week or by the end of the following week. The personnel manager “told [claimant] I would try to go along with her as long as we possibly could,” and gave the claimant the name of a nursery. The personnel manager’s testimony was that the claimant asked several times if the employer could fire her; she was told her employer had work for her, but because of a company rule, or “policy,” it would be assumed she quit if she did not report on Monday, July 21. When the claimant did not report on July 21, the employee’s records were made to indicate she had voluntarily quit.

Claimant’s testimony at the appeals hearing, which she stresses here, was that she did not report on July 21 because, “I did not have a baby-sitter.” Her recollection of what her employer had said was much the same as the personnel manager’s, except that she stated her employment was terminated because “they [Emerson] told me they decided I automatically quit.” However, the testimony continued:

“Q. On the day they told you that they considered you had automatically quit, could you have gone to work that day?
A. I did not have a baby-sitter. That is what I called in for.
Q. After that, have you ever found a baby-sitter?
A. No. After that I looked for a job. I haven’t found one yet.
* * * * * *
Q. During the months of July and August you did not have a baby-sitter. A. That’s right. I told them after school started I could probably find one, and then I could probably make it, but they couldn’t give me a layoff that long.”

A threshold observation is appropriate. Appeals in employment security cases are governed by § 288.210, RSMo 1969, V.A. M.S., and that statute reads in pertinent part “[i]n any judicial proceeding . the findings of the commission as to the facts, if supported by competent and substantial evidence . . . shall be conclusive.” This means that on appeal, the court reviews the record in the light most favorable to the findings of the Commission; the weight of the evidence and the credibility of the witnesses are matters for the Commission to decide, and when the evidence and the inferences therefrom are conflicting, resolution of the conflicting inferences rests with the Commission and its resolution is conclusive on the reviewing court. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Blackman v. Industrial Commission, 491 S.W.2d 18, 22[1] (Mo.App.1973).

To address the dispositive questions directly, it is readily apparent that the Commission could reasonably have drawn the inference that the claimant left her work or failed to report for work because she could not find anyone to care for her children while she was working. Section 288.-050(1)(1), RSMo Supp.1975, of our Employment Security Law disqualifies a claimant if “he has left his work voluntarily without good cause attributable to his work or to his employer.” If the claimant’s conduct falls within the interdiction of this phrase, the Commission’s award was proper, even though the order denying benefits was couched in terms of “constructive abandonment” of the employment.

This brings us to the final question: If an employee terminates or abandons his employment because of the compelling pressure of parental obligation, has he quit “voluntarily without good cause attributable to his work or to his employer?” The trial court’s judgment was based on the premise that a trier of fact was required by the evidence to find that the claimant failed to report because she was unable to find a baby-sitter; its conclusion was that Mrs. Lyell’s obligation to care for her children constituted “good cause” and because she left under the compulsion of that obligation, she had not terminated her employment “voluntarily.” We agree with the premise but not with the conclusion. Employment security or unemployment compensation statutes commonly contain disqualifying provisions couched in terms similar to the language of § 288.050(1)(1), RSMo Supp.1975. As might be expected the authorities are not uniform; some decisions lay emphasis on the word “voluntarily,” others upon the words “good cause,” and in some cases special statutory provisions have required a seemingly aberrant result. However, in the absence of special statutory provisions, the present weight of authority holds that a worker who leaves his employment under compulsion of marital or parental obligation has left his work voluntarily without good cause because his reasons for termination lack the causal connection with his employment which is required by the statute. In Bussmann Manufacturing Co. v. Industrial Commission, 3 S.W.2d 456 (Mo.App.1960), the employee quit her employment as a coil winder because of pregnancy. She asked for a leave of absence, which was refused; she was told, however, that when she wished to return to work, she would be rehired if employment was available. The claimant applied for work after her baby’s birth and was told there was nothing for her to do. The Division of Employment Security awarded unemployment benefits, and the employer appealed. The claimant argued, and the trial court held that the termination of employment was involuntary. The Court of Appeals carefully considered and reviewed the language of § 288.050(1)(1). Acknowledging that an insured worker’s decision to leave his employment might sometimes be said to be voluntary in the sense that the worker had willed it, and at the same time be involuntary because outward pressures had compelled it, the court finally concluded, 335 S.W.2d at 461, that the clause “voluntarily without good cause attributable to his work or to his employer” comprises a single factual standard which a claimant must negate in order to avoid disqualification and held that because the claimant’s reason for termination was not work-connected, she was not entitled to benefits. The same result has been reached in other jurisdictions in eases involving a claimant’s termination of his employment because of marital or parental obligations. It is not necessary, for our purposes, to examine the rationale of those cases, nor others which might be cited. It is sufficient to say that upon the record presented, the claimant was disqualified because she left her work voluntarily without good cause attributable to her work or to her employer. Accordingly, the judgment of the trial court is reversed with directions to reinstate the award of the appeals tribunal as affirmed upon denial of review by the Labor and Industrial Relations Commission.

All concur.

      . See authorities cited Gray v. Dobbs House, Inc., Ind.App., 357 N.E.2d 900, 903, n. 1 (1976); Annot., 35 A.L.R.3d 1129 (1971); Annot. A.L.R.2d 874 (1950).

      . See, e. g., Gray v. Dobbs House, Inc., supra n. 1, 357 N.E.2d at 903, 904[1, 2] (inability to obtain a baby-sitter); Carter v. Maine Employment Security Commission, 356 A.2d 731 (Me.1976) (quitting to join spouse in a distant city); Moore v. Bureau of Unemployment Compensation, 73 Ohio App. 362, 56 N.E.2d 520 (1943) (quitting to join spouse in a distant city and to care for a family).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary Michael ASBERRY, Defendant-Appellant.
    No. 10465.
    Missouri Court of Appeals, Springfield District.
    July 14, 1977.

      John D. Ashcroft, Atty. Gen., Walter 0. Theiss, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David G. Neal, Eminence, for defendant-appellant.
   PER CURIAM:

A jury found defendant guilty of burglary in the first degree and fixed punishment at five years’ imprisonment. The transcript on appeal, approved by the parties and thereby represented as correctly including all of the record (Rule 81.12(c), V.A.M.R.), contains “the following entry . . . : Motion for new trial overruled. . Allocution was granted and Defendant was sentenced and punishment was fixed in accordance with jury verdict [and] same is fixed at (5) five years in the department of corrections. . . . Allocution, Judgment and Sentence. . .

Rule 27.11, V.A.M.R., requires that “Whenever a judgment upon a conviction shall be rendered . . . , the clerk . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

It is obvious that the aforesaid “entry” was merely that and not a judgment as required by the rule, for it nowhere gives a clue to “the offense for which such conviction shall have been had,” and the “entry” cannot be transmogrified into a judgment by merely being given that name in the notice of appeal or in the index of the transcript. Williams v. Williams, 480 S.W.2d 525, 527 (Mo.App.1972).

Failure to enter the judgment required by Rule 27.11 is not appellant’s fault and his appeal will not be dismissed. Nonetheless, as it is essential for the purpose of appellate review that the judgment entry upon conviction be preserved and shown by the transcript, we must hold the appeal in abeyance, remand the cause to the trial court from whence it came for entry of the required judgment, and reinstate the appeal upon receipt of a supplemental transcript containing said judgment. State v. Skaggs, 248 S.W.2d 635, 638[9-14] (Mo.1952); State v. Vinson, 337 Mo. 1023, 1027-1028, 87 S.W.2d 637, 640[8] (1935); State v. Pogue, 552 S.W.2d 75 (Mo.App.1977).

It is so ordered.

All concur.