author: DONNELLY, Judge.

text:
    XEROX CORPORATION et al., Respondents, v. STATE TAX COMMISSION of Missouri et al., Appellants.
    No. 58850.
    Supreme Court of Missouri, En Banc.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.
    See also, Mo., 529 S.W.2d 418.

      James J. Wilson and Jack L. Koehr, St. Louis, John C. Danforth, Atty. Gen., Walter Nowotny, Asst. Atty. Gen., George W. Lang, II, and Thomas Wehrle, Clayton, for appellants.
    Robert G. Brady, Michael B. McKinnis and Don G. Lents, Bryan, Cave, McPheeters & McRoberts, St. Louis, for respondents.
   DONNELLY, Judge.

This ease involves tax assessments for the year 1972 on personal property belonging to Xerox Corporation and Mohawk Data Sciences Corporation and leased to users in the City of St. Louis and in Buchanan County, Clay County, Jasper County, Pulaski County, St. Charles County and St. Louis County. It was stipulated by the parties in the appeals before the State Tax Commission that the transcript in the Xerox case should be regarded as the formal record for all cases. The Conclusions of Law filed by the Commission in the Xerox case are as follows:

“The sole question in this case is what is the correct valuation to be placed on Xerox’s equipment, which it leases to the general public. Under Section 137.115, it is provided that the basis on which assessment shall be made is the ‘true value in money’ of the property. In applying this standard, we must all recognize that ‘true value in money’ does not mean an absolute true value, but is at best a mere estimate. See Stein v. State Tax Commission, 379 S.W.2d 495. Additionally, it is presumed, in accordance with the law, that the Assessor’s valuation is correct unless shown in some respect to be incorrect. Foster Brothers Manufacturing Co. v. State Tax Commission, 319 S.W.2d 590. The burden of overcoming this presumption lies with Xerox. There is no question but that this Commission has the authority to correct any assessment which is shown to be unlawful, unfair, improper, arbitrary, or capricious. Section 138.430, RSMo 1969.

“The evidence presents two very different ways of arriving at a valuation of the equipment involved. The Assessor and. the Board of Equalization have used a gross multiplier formula of fifty times average monthly rental divided by three. This formula has long been in use in the City of St. Louis, although elsewhere in Missouri the formula customarily used employs a forty multiplier rather than a fifty multiplier. From the point of view of tax administrators, the application of such a formula is undoubtedly convenient, fast, and time saving. Although it is a widely-accepted way of assessing rental property, it admittedly has drawbacks and inequities.

“The Xerox approach to valuation necessarily has to be indirect because there are virtually no sales of Xerox equipment to use as a basis for market value. Consequently, Xerox sought to establish market cost, to which a markup was applied. The markup was itself established through comparison of markups on equipment manufactured by Burroughs, National Cash Register, Addressograph and Multigraph, all of whose machines are sold in the market place. The markup determined was approximately 75% over manufacturer’s cost, where the equipment was in the hands of a company like Xerox. In non-Xerox hands, the markup would be reduced to 65%. In this approach, however, we feel that there is a very serious question presented as to what costs should be regarded as manufacturer’s costs. Admittedly, a number of these costs, such as the cost of management, promotion, advertising, and others, are not assigned by Xerox to cost of manufacture, but are allocated as costs of carrying on the leasing business.

“Xerox also sought to establish true value by an analysis of Xerox stock. By virtue of a complicated analysis of the capital structure of the Company, all of which has heretofore been set out, Xerox sought to show that the required overall return of this equipment would have to be 16.59% in order to be a good investment for the owner of the equipment. By extrapolating these figures, and accounting for Federal and Missouri Income Taxes, depreciation, and return of risk capital, Xerox concludes that equipment producing a net income of $2,944,021 would have a value ranging from $5,700,000 to $7,000,000.00.

“We have considered all the foregoing, and are of the view that a gross multiplier formula, for reasons which we have many times previously expressed, will produce a practical and sensible value of the equipment in question which satisfies us, at least, as an acceptably close approximation of the true value of this equipment. Both the Xerox methods used, and the gross multiplier method, employ many factors which are both intangible and arguable. Consequently, we feel that in the present case the gross multiplier formula is acceptable, with the modification that a multiplier of forty rather than fifty be applied. We therefore conclude that the proper assessment valuation of Xerox’s leased equipment in the City of St. Louis is $6,715,415.00. To this must be added $43,215.00, applicable to Xerox’s equipment other than that which is leased out. The total assessment valuation therefore is $6,758,630.00.”

An appeal was taken by Xerox and Mohawk to the Circuit Court of Cole County, which reversed the Commission and held “that the Commission’s decisions were unlawful, were not supported by competent and substantial evidence upon the record as a whole, and were arbitrary, capricious and discriminatory.” The Commission and other defendants appealed to this Court. We have jurisdiction because the issues involve construction of the revenue laws of this state. Mo.Const. Art. V, § 3.

Appellants’ basic assertion is that the “Circuit Court erred in reversing the decision of the State Tax Commission in that it sought to substitute its discretion for that vested in the Commission, in respect to the adoption of a proper method for the valuation of leased business machine equipment for ad valorem tax purposes.” We agree.

In 1955, Professor Louis L. Jaffe (Jaffe, Judicial Review: Question of Law, 69 Harv. L.Rev. 239, at 260 and 261), expressed the following point of view:

“. . . But I would urge that there is a presumption (subject to rebuttal) that a rule-making or order-making agency with a specialized jurisdiction is meant to have some discretion, some policy-making function.
“It is at this point that we come to the heart of the difficulty. Discretion, as we have said, is not self-defining; it does not arise parthenogenetically from ‘broad’ phrases. Its contour is determined by the courts, which must define its scope and its limit. Put in terms of judicial review: why do courts sometimes pronounce the law and sometimes not? Put in terms of administrative power: why are agencies sometimes permitted to make law and sometimes not? The answer, I submit, should run primarily in terms of clear statutory purpose. I am aware that in many instances attribution of the result to the statute will be formal; that the decision will have been made somehow or other and then the result stated in terms of statutory purpose. But this formulation has the value of directing our attention toward the one most significant criterion. Furthermore, when we say ‘run in terms of’ statutory purpose we have in mind a concept of statutory purpose which takes account of the fact that the legislature in realizing its purposes has chosen to work through an administrative agency, and so (presumptively as we have said) to confer on it some policy-making function. This discretion should be permitted to function short of the point where the court is convinced of the clear purpose of the statute. The court, we have said, should test each exercise of power in terms of statutory purpose. But in a great many cases the court will grant that any one of two or more proposed answers is consistent with the statute. This is true of most statutes but particularly of a vaguely phrased administrative statute. In such a situation agency choice should stand. It is in as good a position, and because of its specialization presumptively in a better, to make the choice. There is, furthermore, a value in this recognition of administrative autonomy; it may invigorate the sense of responsibility, stimulate initiative, and encourage resourcefulness.”

Section 138.235, Subsection 2, RSMo 1969, requires that the State Tax Commission “shall investigate companies which have tangible personal property for lease or companies which lease tangible personal property, to cause said property to be properly taxed within this state.”

Section 138.410, Subsection 1, RSMo 1969, provides that the State Tax Commission “shall exercise general supervision over all the assessing officers of this state, over county boards of equalization and appeal in the performance of their duties under this chapter and all other laws concerning the general property tax and shall institute proper proceedings to enforce the penalties and liabilities provided by law for public officers, officers of corporations and individuals failing to comply with the provisions of this chapter, and of all laws relating to the general property tax.”

We are persuaded that these statutory provisions manifest a “clear statutory purpose” that the State Tax Commission, in the exercise of its administrative discretion, may choose the gross multiplier formula as the method to be used in taxing leased tangible personal property. In performing this particular function, the Commission is acting as “an ‘administrative arm’ of the Legislature,” and its actions are primarily “legislative in character.” Missouri Southern R. Co. v. Public Service Commission, 279 Mo. 484, 214 S.W. 379, 380 (1919). In this particular situation, involving the exercise of administrative discretion, we believe the courts should not interfere unless there is an abuse of such discretion. We find no abuse of discretion here.

Xerox and Mohawk contend the gross multiplier formula fails to account for obsolescence, depreciation, maintenance expenses, leasing expenses and taxes.

In Somers v. Meridan, 119 Conn. 5, 174 A. 184, 186 (1934), the Court stated:

“It is true that, in the final analysis, it is the net income rather than the gross which affects values, but there is no inflexible rule for ascertaining the deductions to be made from the gross for the purpose of obtaining the net. If the percentage used in capitalizing gross income is sufficient to cover the deductions allowable in producing net, the result will satisfy this requirement.”

In this case, the City of St. Louis used a formula of multiplying the monthly rental by fifty and dividing by three. The Commission reduced the multiplier from fifty to forty. If, by this reduction, the Commission used a multiplier “sufficient to cover the deductions allowable in producing net,” the result satisfies the requirement of finding a reasonable approximation of true value.

Witness Joseph C. Sansone testified as follows:

“Q Did you participate in any studies made by the State Tax Commission in connection with the use of a gross multiplier formula?
“A Yes.
“Q When were those studies made, if you recall?
“A About 1966.
“Q And what was the nature of those studies, or how were they conducted?
“A Well, I think it was conducted on a formal basis. The members of industry were requested to come in with various information in regard to their products, and to present them to that body and discuss them.
“Q Were those studies that you participated in with the State Tax Commission also a basis for your opinion as to the use of the gross multiplier?
“A Yes. In fact, at that time, the Commission chose to use 50 times, and at a later date reduced it to another figure.”

In City of St. Louis v. State Tax Commission, 505 S.W.2d 75 (Mo.1974), equipment leased by IBM was involved. The City Assessor adopted a formula of multiplying the monthly rental by fifty and dividing by three. IBM submitted a formula of multiplying the monthly rental by forty and dividing by three. The State Tax Commission adopted the forty multiplier and the City appealed. This Court said (at page 81):

“The Commission undoubtedly adopted that formula in compliance with its statutory mandate to exercise general supervision over assessing officers and to specifically investigate companies which lease tangible personal property in order to cause such to be properly taxed. In that situation it would be presumed that the Commission performed its statutory duties and made an appropriate investigation and based the formula adopted upon facts obtained thereby. As indicated, we have concluded that such formula considered with the fact that it has been widely accepted by assessing officers constitutes substantial evidence to support the findings of the Commission. We do not mean to say, however, that a formula adopted by the Commission is impervious to attack. It would appear that on a hearing before the Board or Commission relevant evidence should be considered which would tend to show that the formula produced an assessment which was either more or less than true value. Appellants presented evidence concerning the basis for adoption of their formula and we consider such to be substantial evidence. The Commission, however, as the fact finder, determined that the formula used by the Assessor resulted in a valuation which was not the true value but was unlawful, unfair, arbitrary or capricious. We cannot say that such a finding was an abuse of discretion or unsupported by competent and substantial evidence. The decision certainly may not be said to be ‘clearly contrary to the overwhelming weight of the evidence’. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (1946).”

In the present situation, we know from Witness Sansone’s testimony that the Commission “made an appropriate investigation.” We can presume that the Commission “based'the formula adopted upon facts obtained thereby.”

In St. Joseph Stock Yards Company v. United States, 298 U.S. 38, 80-82, 56 S.Ct. 720, 738, 80 L.Ed. 1033 (1936), Mr. Justice Brandéis, concurring, addressed the problem of “giving finality to assessments of value made for the purpose of ad valorem taxation,” referred to certain cases previously decided by the Court, and stated:

“These cases show that in deciding when, and to what extent, finality may be given to an administrative finding of fact involving the taking of property, the Court has refused to be governed by a rigid rule. It has weighed the relative values of constitutional rights, the essentials of powers conferred, and the need of protecting both. It has noted the distinction between informal, summary administrative action based on ex parte casual inspection or unverified information, where no record is preserved of the evidence on which the official acted, and formal, deliberate quasi-judicial decisions of administrative tribunals based on findings of fact expressed in writing, and made after hearing evidence and argument under the sanctions and the safeguards attending judicial proceedings. It has considered the nature of the facts in issue, the character of the relevant evidence, the need in the business of government for prompt final decision. It has recognized that there is a limit to the capacity of judges, and that the magnitude of the task imposed upon them, if there be granted judicial review of the correctness of findings of such facts as value and income, may prevent prompt and faithful performance. It has borne in mind that even in judicial proceedings the finding of facts is left, by the Constitution, in large part to laymen. It has enquired into the character of the administrative tribunal provided and the incidents of its procedure. Compare Humphrey’s Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 79 L.Ed. 1611. And where that prescribed for the particular class of takings appeared ‘appropriate to the ease, and just to the parties to be affected,’ and ‘adapted to the end to be attained,’ Hagar v. Reclamation District, 111 U.S. 701, 708, 4 S.Ct. 663, 667, 28 L.Ed. 569, the Court has held it constitutional to make the findings of fact of the administrative tribunal conclusive. Thus, the Court has followed the rule of reason.”

Our decision today should not be considered an abandonment of the traditional role of the courts in reviewing administrative decisions. It should be construed as indicating only that we consider the adoption of the gross multiplier formula an action properly within the administrative discretion of the State Tax Commission, and that we find no abuse of discretion.

The judgment is reversed and cause remanded with directions to reinstate the order of the State Tax Commission.

MORGAN, Acting C. J., HOLMAN, BARDGETT, HENLEY and FINCH, JJ., and SIMEONE, Special Judge, concur.

SEILER, C. J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    XEROX CORPORATION, Appellant, v. John K. TRAVERS, Collector of Revenue, City of St. Louis, Missouri, Respondent.
    No. 58757.
    Supreme Court of Missouri, En Banc.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.

      Robert G. Brady, Michael B. McKinnis and Edward J. Lieberman, Bryan, Cave, McPheeters & McRoberts, St. Louis, for appellant.
    James J. Wilson, Jack L. Koehr, James E. Crowe, St. Louis, for respondent.
   DONNELLY, Judge.

This case involves tax assessments for the year 1972 on personal property belonging to appellant Xerox Corporation and leased to users in the City of St. Louis. The tax assessments are among those involved in Xerox Corporation, et al. v. State Tax Commission of Missouri, et al., 529 S.W.2d 413 (decided concurrently herewith). Respondent Travers is the Collector of Revenue in the City of St. Louis.

The controversy in this case arises from an apparent conflict between Sections 139.-031, 138.430 and 536.110, RSMo 1969.

Section 139.031, RSMo 1969, reads as follows:

“1. Any taxpayer may protest all or any part of any taxes assessed against him, except taxes collected by the director of revenue of Missouri. Any such taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which his protest is based, and shall further cite any law, statute, or facts on which he relies in protesting the whole or any part of such taxes.
“2. The collector shall disburse to the proper official all portions of taxes not so protested, and he shall impound in a separate fund all portions of such taxes which are so protested. Every taxpayer protesting the payment of taxes, within ninety days after filing his protest, shall commence an action against the collector by filing a petition for the recovery of the amount protested in the circuit court of the county in which the collector maintains his office. If any taxpayer so protesting his taxes shall fail to commence an action in the circuit court for the recovery of the taxes protested within the time herein prescribed, such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded, as hereinabove provided.
“3. Trial of the action in the circuit court shall be in the manner prescribed for nonjury civil proceedings, and, after determination of the issues, the court shall make such orders as may be just and equitable to refund to the taxpayer all or any part of the taxes paid under protest or to authorize the collector to release and disburse all or any part of the impounded taxes. Either party to the proceedings may appeal the determination of the circuit court.
“4. All the county collectors of taxes, and the collector of taxes in any city not within a county, shall, upon written application of a taxpayer, refund any real or tangible personal property tax mistakenly or erroneously paid in whole or in part to the collector. Such application shall be filed within one year after the tax is mistakenly or erroneously paid. The county court, or other appropriate body or official, shall make available to the collector funds necessary to make refunds under this subsection by issuing warrants upon the fund to which the mistaken or erroneous payment has been credited, or otherwise.
“5. No taxpayer shall receive any interest on any money paid in by him either erroneously or under protest.”

Section 138.430, Subsection 2, RSMo 1969, reads as follows:

“Every owner of real property or tangible personal property and every merchant and manufacturer shall have the right of appeal from the local boards of equalization under rules prescribed by the state tax commission. Said commission shall investigate all such appeals and shall correct any assessment which is shown to be unlawful, unfair, improper, arbitrary or capricious.”

Section 536.110, RSMo 1969, reads as follows:

“1. Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision.
“2. Such petition may be filed without first seeking a rehearing, but in cases where agencies have authority to entertain motions for rehearing and such a motion is duly filed, the thirty-day period aforesaid shall run from the date of the delivery or mailing of notice of the agency’s decision on such motion. No summons shall issue in such case, but copies of the petition shall be delivered to the agency and to each party of record in the proceedings before the agency or to his attorney of record, or shall be mailed to the agency and to such party or his said attorney by registered mail, and proof of such delivery or mailing shall be filed in the case.
“3. The venue of such cases shall, at the option of the plaintiff, be in the circuit court of Cole county or in the county of the plaintiff or of one of the plaintiff’s residence or if any plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. The court in its discretion may permit other interested persons to intervene.”

The Board of Equalization in the City of St. Louis assessed equipment owned by Xerox Corporation and leased in the City of St. Louis. Xerox appealed from the Board of Equalization to the State Tax Commission.

On November 30, 1972, the State Tax Commission rendered its decision assessing appellant’s tangible personal property situated in the City of St. Louis on January 1, 1972, at a value of $6,758,630.00. Appellant’s leased equipment was valued at $6,715,415.00 and its office furniture and equipment at $43,215.00. The assessed value of appellant’s leased equipment was calculated by multiplying its average gross monthly rental by forty and dividing the result by three. In December, 1972, appellant paid tangible personal property taxes in the amount of $379,497.07 to respondent Travers, as Collector of Revenue of the City of St. Louis, for the year 1972. Those taxes were based upon the State Tax Commission assessment of appellant’s tangible personal property situated in the City of St. Louis. Appellant included with its payment a letter to respondent protesting such payment, stating the grounds upon which such protest was based and citing the laws upon which appellant relied in filing its protest. Pursuant to § 139.031, supra, respondent placed appellant’s protested payment in a separate account to be held pending the final judicial determination of the issues upon which appellant’s protest was based.

Appellant, within three months after the payment of its taxes under protest, filed, in the Circuit Court of Cole County, a suit seeking judicial review of the State Tax Commission assessment upon which appellant’s tangible personal property taxes in the City of St. Louis were calculated. The Cole County Circuit Court entered a judgment reversing the decision of the Tax Commission. An appeal was then taken to this Court. That appeal is No. 58850 (decided concurrently herewith). In that appeal, we reversed the Cole County Circuit Court and upheld the State Tax Commission assessment.

Appellant paid its taxes under protest in order to avoid interest and penalties during the pendency of the Cole County proceedings, as well as to allow the City of St. Louis the use of the undisputed portion of the taxes so paid without forfeiting appellant’s right to recover the disputed portion of such taxes, should appellant prevail in the Cole County action. No action was brought against respondent Travers in the Circuit Court of the City of St. Louis seeking to recover these taxes. Respondent Travers was not named as a party in the suit which was brought in Cole County nor was he given official notice of said suit within ninety days after its filing. Appellant paid the entire $379,497.07 under protest but has authorized respondent to release $107,402.75, which is not in dispute in the Cole County case, to the various districts and agencies within the City of St. Louis. Respondent has disbursed these funds.

Xerox brought this action in the Circuit Court of the City of St. Louis seeking a declaration that its protest (under § 139.-031, supra) had been properly perfected by its filing its petition for review in the Circuit Court of Cole County (under § 536.110, supra), and seeking an injunction prohibiting Travers from distributing the taxes paid under protest. The trial court denied Xerox’s prayer for declaratory judgment and injunction. Xerox appealed. We have jurisdiction because the issues involve construction of the revenue laws of this state. Mo.Const. Art. V, § 3.

Appellant Xerox feels that the action filed by it in Cole County meets the requirements of § 139.031, supra. Respondent Tra-vers does not agree. He contends that the “right to pay taxes under protest is a statutory right * * * [given by § 139.031]; that if one seeks to avail himself of a statutory right he must comply'with conditions and requirements which the legislature has imposed upon that right * * *; and that [under § 139.031] it was mandatory upon * * * [Xerox] to bring an action within ninety days against him in the Circuit Court of the City of St. Louis or else lose its right to pay under protest.”

In Foremost Dairies, Inc. v. Thomason, Mo.Sup., 384 S.W.2d 651, 659 (Mo. banc 1964) this Court stated: “ * * * Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written. However, when the meaning is doubtful it becomes the duty of the courts to construe it. It is elementary that the primary rule to be applied in the construction of a statute is to ascertain and give effect to the legislative intent. * *.”

In our opinion, § 139.031 is clear and unambiguous on its face. It requires the protestor to file its “petition for the recovery of the amount protested in the circuit court of the county in which the collector maintains his office.” Therefore, appellant is not entitled to the relief sought and the trial court’s judgment must be affirmed. However, if given undiluted effect, § 139.-031 conflicts directly with §§ 138.430 and 536.110, supra, which give a right of appeal from local boards of equalization to the State Tax Commission, and a right to petition for review of the decision of the Commission “in the circuit court of Cole County

We believe §§ 139.031,138.430 and 536.110, in the posture of this case, deal with the same subject (the matter of contesting a tax assessment), are in “pari materia,” and that we should apply a rule of statutory construction which “proceeds upon the supposition * * * [that these statutes] were governed by one spirit and policy and were intended to be consistent and harmonious in their several parts and provisions * * State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 1143, 181 S.W.2d 496, 499 (Mo. banc 1944). “The law favors constructions [of statutes] which harmonize with reason, and which tend to avoid unjust, absurd, unreasonable or confiscatory results, or oppression.” Laclede Gas Company v. City of St. Louis, 363 Mo. 842, 848, 253 S.W.2d 832, 835 (Mo. banc 1953).

We hold that these statutes may be reconciled and harmonized as follows:

(1) Any taxpayer desiring to pay taxes under protest (under 139.031), and to avail himself of the benefits thereunder, shall file his statement with the collector at the time of paying such taxes.

(2) Within ninety days after filing his protest, he shall commence an action against the collector in the circuit court of the county in which the collector maintains his office. If he does not, the collector should disburse the impounded funds.

(3) If he appeals to the State Tax Commission, he may notify the collector of such appeal and may file in the circuit court of the county in which the collector maintains his office a notification of such appeal. If he makes and files such notifications, the proceedings pending in the circuit court of the county in which the collector maintains his office shall be stayed until the proceedings before the State Tax Commission and judicial review, if any, are finalized.

(4) The collector should not disburse the impounded funds until all proceedings in the circuit court of the county in which he maintains his office are finalized.

We believe the above procedure will give effect to the legislative intent, as reflected in §§ 139.031, 138.430, and 536.110, supra, and will achieve a just result.

The judgment is affirmed.

MORGAN, Acting C. J., HOLMAN, BARDGETT, HENLEY and FINCH, JJ., and SIMEONE, Special Judge, concur.

SEILER, C. J., not sitting.


author: WEIER, Presiding Judge.

text:
    E. C. S., f/k/a E. C. L., Plaintiff-Appellant, v. J. D. L., Defendant-Respondent.
    No. 35994.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 5, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Newmark & Baris, Irl Baris, Kenneth H. Graeber, St. Louis, for plaintiff-appellant.
    Bryan, Cave, McPheeters & McRoberts, Dennis C. Donnelly, St. Louis, for defendant-respondent.
   WEIER, Presiding Judge.

This appeal arises from an order of the Circuit Court of the County of St. Louis modifying a decree of divorce.

On July 18, 1969 a decree of divorce was granted to the plaintiff-wife. She was also awarded the care, custody, and control of the three minor children born of the marriage. The defendant-husband was given visitation rights and temporary custody of the children and ordered to pay $200.00 monthly child support. A stipulation by the parties was also made part of the divorce decree in which the defendant had agreed to pay up to $1,000.00 medical and dental expense and $7,000.00 educational expense per year with provisions that the amounts might be increased.

In October of 1969, three months after the decree of divorce, the plaintiff was adjudicated incompetent by the Probate Court of St. Louis County, and a guardian for her person and estate was appointed. The actual physical custody of the three children remained with the defendant although their legal custody had been given to plaintiff. But on July 6, 1972 the decree of divorce was modified giving the defendant legal custody of the children “until July 1st next following a final judgment of restoration of the divorced wife * * * at which time * * * ghe * * * ¡¡hall have the general care, custody and control of said minor children.” The plaintiff’s guardian was ordered to pay defendant $333.33 monthly in support of each child.

In April, 1973 defendant filed a motion to modify the 1972 decree, requesting that he be given custody of the children and to delete the provision to return their custody to plaintiff in July. Hearings on defendant’s motion did not begin until August, 1973. But prior to this, on July 1, 1973, for the first time the children left their father to reside with their mother who had been restored in August of 1972.

On December 28, 1973 the order was entered which sustained the defendant’s motion in part and denied it in part. Defendant was awarded custody of the oldest son, then fifteen years of age, and plaintiff was awarded custody of the two younger children, a girl, twelve, and a boy, nine. The order further provided that with an exception with respect to medical insurance, “neither party shall be obligated to pay the other any sum for the maintenance, support, care or custody of the minor children or for their medical, dental, orthodontic, psychiatric, educational, transportation, entertainment or other expenses of any kind.” Additionally, the order granted each party temporary custody of all three children for various times during the year.

Plaintiff is before us contending the 1973 modification, which divided the children’s general custody between the parents and ended all support payments and monetary obligations between each party, is error. The first point plaintiff relies on is that it was error to grant the defendant custody of the older boy because there was no proof of any change of circumstances to justify a modification of the 1972 order, or that plaintiff was an unfit mother, or that it was in the children’s best interest to be separated.

Initially we must admit that the determination of the proper custody of children is not an easy or pleasant task. There are no fixed and clear rules to be followed; rather each case must be decided according to its own particular facts, always remembering the primary objective is to reach a result which is in the best interest and welfare of the children. Wood v. Wood, 400 S.W.2d 431, 436[1] (Mo.App.1966). Furthermore, we recognize that the determination of all factual issues in a proceeding on motion for modification of custody provisions of divorce decree on grounds of material changes in circumstances is initially vested in the discretion of the trial court, and its findings should be deferred to unless in conflict with the clear preponderance of the evidence and disclose a manifest abuse of discretion. Pelts v. Pelts, 425 S.W.2d 269, 270[4] (Mo.App.1968).

Defendant filed a bill of particulars in which he explicitly alleged changed circumstances had occurred since the 1972 order. The primary dispute revolved around the plaintiff’s problem of alcoholism and whether in fact she still has one since her restoration. Most of the evidence on this point was from the three minor children, and their testimony was at best ambiguous and inconsistent. We see no useful purpose in making a permanent record of the details of this controversy. See Pelts v. Pelts, supra at 270[4]. In fact, in this case we largely discount the reciprocal charges of unfitness and misconduct which the parties have made. Obviously, each tends to magnify the other’s faults. The law does not demand that parents be perfect, and the comparative merits are not substantial factors in this case since the trial court in fact found both to be fit parents when it awarded each one custody of a child. The real question is whether the trial court’s award of custody best serves the interests of the children themselves. J. v. E., 417 S.W.2d 199, 203[1, 2] (Mo.App.1967).

Plaintiff correctly asserts that the party seeking modification of a custody provision has the burden to show a change in circumstances. See Gori v. Gori, 490 S.W.2d 282, 283[1] (Mo.App.1973); Wood v. Wood, supra, 400 S.W.2d 431, 436[2]; C. S. v. R. J. S., 488 S.W.2d 663, 665[2] (Mo.App.1972). But this burden must be viewed in the light of the best interest and welfare of the children. C. S. v. R. J. S., supra at 665[3]. The court is entitled to inquire very broadly to determine whether the previous decree serves the children’s best interest in the light of actual experience and subsequent developments. J. v. E., supra, 417 S.W.2d at 203[4]. After the first modification, plaintiff was restored. Defendant alleged in his subsequent motion a problem of alcoholism that continued after recovery of competency. Some evidence adduced supported this allegation. Such a problem has a vital effect on the best interest of the children. Such circumstances give rise here to a change of condition.

As to the separation of the children, we recognize that it has frequently been held that absent exceptional circumstances the children of divorced parents should not be separated. But it is clearly within the discretionary power of the trial court to make such a division if it is for the best interest of the children to do so. J. v. E., supra at 203[7-8].

The oldest boy is now sixteen years old, an age at which courts have generally noted the guidance and discipline of his father is most important. See J. v. E., supra at 204[10-12]; Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112, 1123 (1915). Additionally, the record demonstrates that the boy was not happy in the custody of his mother and voiced a preference to living with his father. Missouri law now specifically recognizes that the child’s wishes are to be a relevant factor in the custody decision. § 452.375, RSMo Supp. 1973. Although this statute was not yet in effect at the time of the decree in question (see § 452.415, RSMo Supp.1973), Missouri courts have long acknowledged the right of the trial court to consider and give controlling weight to the wishes of a minor child provided the child is sufficiently mature to formulate and express a rational opinion and desire as to its custody. Fenton, “The Minor’s Rights in a Divorce Proceeding”, 29 Mo.Bar J. 450 (1973). See Engler v. Engler, 455 S.W.2d 36, 41[5] (Mo.App.1970); J. v. E., supra, 417 S.W.2d at 203[5-6]. The boy was almost fifteen years old when he testified and the record demonstrates an extensive questioning by the trial judge so that the judge had ample opportunity to determine the boy’s maturity and soundness of judgment as to his custody. Further, there was substantial testimony from the boy as well as other witnesses with respect to the friction that existed between the boy and his mother. The record also discloses that the older boy’s school, friends, and interests differed from that of his sister and younger brother. The trial court’s decision did not sever all family ties since, pursuant to the order, all thi*ee children are to have the benefit of being with each other at certain times of the year and liberal visitation rights are provided.

Plaintiff’s second contention is that the trial court erred in refusing to award her any child support, contending defendant is legally responsible for their support and is able to provide for them.

Although § 452.340, RSMo Supp. 1973, which requires both parents’ financial resources to be considered, was not yet in effect at the time of the decree in question (see § 452.415, supra), in a situation where the financial assets and income of both parents is well balanced, ordering one parent to pay child support to another may be unreasonable and hence an abuse of discretion under former § 452.070, RSMo 1969. Williams v. Williams, 510 S.W.2d 452, 455[3] (Mo. banc 1974).

Furthermore, it is well established that in determining the amount of child support the trial court’s determination will not be set aside unless there appears a clear abuse of discretion. Fugate v. Fugate, 510 S.W.2d 705, 706[5, 6] (Mo.App.1974). Here, a substantial portion of the record dealt with the financial status of each parent. The trial judge questioned both parties with respect to their income, assets, and expenses. Plaintiff admitted to a total net worth of about $2,000,000.00 and an annual income of $75,000.00, and the defendant estimated his total assets were valued at approximately $125,000.00 with a $48,000.00 annual income. Defendant’s expenses have also increased since a remarriage in which he contributes to the support of two stepchildren. We find no abuse of discretion by the trial judge for not awarding child support to the plaintiff in this case.

The final point raised on appeal is that the court erred in terminating contractual obligations of the defendant with reference to medical and educational expenses of the children because defendant had not asked for such relief and such obligations were not subject to court modification. The original decree of divorce in 1969 provided for the incorporation in the decree of the contract made between the parties. Thus, the contract, which in part concerned these expenses, became merged in the decree and thereafter the contracted provisions were to be enforced as an order of the court, and could be reformed or amended only by modification of the decree. Toth v. Toth, 483 S.W.2d 417, 422[6-7] (Mo.App.1972). More specifically, we have held that “where the object of the contract, and hence of the decree in which it is merged, is to provide for the welfare of a child of the divorced parties * * * no contract of the parties will be binding and no decree of the court immutable, but the one may be disregarded and the other modified from time to time as the welfare of the child may require.” Jenks v. Jenks, 385 S.W.2d 370, 377[10] (Mo.App.1964).

Plaintiff cites several cases suggesting the proposition that a husband and wife have the right to contract between themselves and to settle and adjust all of their property rights, and courts have no right to disregard them. See e. g., Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973); Gunnerson v. Gunnerson, 379 S.W.2d 861 (Mo.App.1964); Jenkins v. Jenkins, 257 S.W.2d 250 (Mo.App.1953). These cases, however, are relevant only to alimony and support and maintenance of the wife. Defendant correctly points out that once the issue of the welfare of the child has been submitted to the court’s jurisdiction, the court shall make all orders requisite to that welfare, including provisions for the monetary support of the child, giving due consideration to the circumstances of the parties. Allen v. Allen, 433 S.W.2d 580 (Mo.App.1968). The record indicates that the trial judge could have found that if the defendant were to continue to be obligated for the educational and medical expenses for the two younger children not in his custody, he might be forced to divert funds from the use of his older son in his custody.

The trial judge was involved with this case from 1972 until 1974, and the transcript is voluminous. There has been no abuse of discretion and we cannot say that the interests of the three minor children would be best served by a different disposition of their custody and a change in the support order.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Wayne TAYLOR, Appellant.
    No. 36521.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 26, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Edward J. Wynne, St. Louis, for appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

In this action for post-conviction relief, appellant seeks to vacate his February 1, 1972, plea of guilty to a two-count indictment charging him with murder in the first degree (Count I) and assault with intent to kill with malice (Count II). Appellant was sentenced by Judge Tillman of the Circuit Court of the City of St. Louis to serve two consecutive life sentences. Thereafter a new attorney was then appointed for the appellant. Appellant’s motion for post-conviction relief under Rule 27.26, V.A.M.R., was overruled by Judge Nangle of the Circuit Court on May 14, 1974. This appeal was then taken.

On appeal, three major claims are presented. First, appellant claims that the guilty plea was not entered voluntarily but rather was the product of coercion deriving from several incidents of harassment and beating. As an additional ground for relief, the defendant contends that the court in accepting the guilty plea failed to comply with the requirements of Rule 25.04, V.A. M.R., in that the court failed to inform the defendant of the nature of the charges in Count II or the range of punishment or that the life sentences would be imposed consecutively rather than concurrently. As a final basis of relief, appellant contends that he received ineffective assistance from the attorney representing him at the plea proceedings. The facts and allegations surrounding each of the three claims will be further examined in the course of the opinion.

In assessing the contentions of the appellant, it is important to keep in mind the limited role defined for an appellate court in an action for post-conviction relief. Withdrawal of a guilty plea and setting aside a conviction after sentencing is allowed only to correct “manifest injustice,” Rule 27.25. The appellant has the burden of establishing any grounds for relief by a preponderance of the evidence, Rule 27-26(f). Appellate review of a prior disposition of the defendant’s 27.26 motion is bounded by the standard of being clearly erroneous, Rule 27.26(j). Within this limited framework, the appellate court reviews the appellant’s claims.

One basis for appellant’s claim that his guilty plea was not voluntary was the occurrence of several incidents of harassment and beating by inmates of the city jail while the defendant was incarcerated there prior to his plea. Appellant was adamant in his claim that he pleaded guilty to get out of the city jail. Conditions existing at the jail at the time of defendant’s incarceration were such as to lead one court to characterize the situation as cruel and unusual punishment, Johnson v. Lark, 365 F.Supp. 289 (E.D.Mo.1973). The opinion of the Missouri District Court does not, however, reach to the correlation, if any, between the conditions of the jail and direct coercive effects on pleas by inmates.

Appellant’s claim of dissatisfaction with jail conditions yielding an involuntary plea is not a novel one. It appears that such complaints have been uniformly dismissed by the courts. Finding the guilty plea to be voluntary, the issue of conditions in the jails is usually dismissed with some variant of the broad statement that:

“Dissatisfaction with a penal condition, •brought about by one’s own conduct, and a hope that by a guilty plea a different kind of incarceration might be achieved are scarcely factors of involuntariness in a plea. They smack instead only of a desire to achieve as soon as possible a new condition of servitude.”

Verdon v. United States, 296 F.2d 549, 552 (8th Cir. 1961); Collins v. State, 450 S.W.2d 186, 190 (Mo.1970); Hontz v. State, 491 S.W.2d 289 (Mo.1973); Dickson v. State, 449 S.W.2d 576 (Mo.1970) and Coleman v. State, 473 S.W.2d 692, 694 (Mo.1971), among others. This broad statement may be understandable where there is a determination by the court that the conditions of the jail were simply a motivating factor in the timing of the plea rather than in the actual decision to enter a plea, Langdeau v. State of South Dakota, 446 F.2d 507, 508 (8th Cir. 1971) and Swain v. State, 492 S.W.2d 778, 780 (Mo.1973). If, however, the oppressive character of the incarceration reaches to the level of cruel and unusual punishment, Johnson v. Lark, supra, and the defendant could sustain the heavy burden of proof to effectively establish that the coercive nature of the penal conditions was directly related to the root decision of whether to enter a plea, it may be undesirable to write off the defendant’s contention under the broad statement of Verdón and cases following. Divisions between the voluntariness of the plea and allegations of a coerced decision to enter that plea seem tenuous.

Perhaps such a division need not be drawn here. It might be assumed, ar-guendo, that dissatisfaction with inhumane jail conditions could be a factor in assessing the voluntariness of a guilty plea and the particular defendant might still be entitled to no relief because the trier of fact has concluded that this dissatisfaction was not a significant factor in the present case. To understand this alternative resolution certain additional factual occurrences must be examined. On the morning of the plea proceedings, the appellant and his partner attempted an escape. They were apprehended almost immediately. Appellant claims that following his apprehension, he was taken into a cell behind the court room and beaten and threatened by police officers. He claims that this incident was an additional element coercing him to enter his guilty plea. The State produced two witnesses at the evidentiary hearing to counter the defendant’s testimony on this point. One witness directly denied the occurrence of any such beatings. This created a contested issue of fact which was uniquely within the province of the trial judge to determine, Shoemake v. State, 462 S.W.2d 772 (Mo.Banc 1971) and Watson v. State, 475 S.W.2d 8 (Mo.1972). Apparently the trial judge did not believe the defendant’s claim of beatings on the morning of the plea. More relevant to the present discussion of the coercive effect of the city jail beating on the entry of the plea is part of the testimony of the appellant’s attorney. The defense attorney testified that he had conferred with appellant the evening before the plea proceedings and appellant still did not wish to plead guilty. The appellant’s refusal was in spite of the fact that the beatings which allegedly coerced his plea had been particularly intolerable for the three previous months. The court may well have found that the appellant’s overnight decision to enter a guilty plea was not a coerced product of inhumane penal conditions but rather a decision motivated by defense counsel’s confrontation of appellant on the morning of the plea with the fact that his attempted escape could and would be used as evidence against him in any subsequent trial. The trial judge’s finding that the entry of the guilty plea was voluntary apparently discredited appellant’s claim of coercion. Such a finding is permissible even if there was no evidence offered by the State to the contrary, Shoemake v. State, supra, at 775; Griffin v. State, 513 S.W.2d 706, 710 (Mo.App.1974); Hamel v. State, 508 S.W.2d 288, 294 (Mo.App.1974). The preceding scenario reveals a factual determination upon which a finding of vol-untariness would not be clearly erroneous and, therefore, not subject to reversal by the appellant court, Rule 27.26(j). The appellant’s claim of an involuntary guilty plea due to coercion is thus rejected.

Upon close examination, the other two contentions of the appellant prove equally unavailing. Appellant’s second contention is that he was not fully aware of the consequences of his plea because the court at the plea proceeding failed to inform him of the nature of the charges in Count II or the range of punishment or that the life sentences would be imposed consecutively rather than concurrently. The transcript of the proceedings belies two of these allegations. The appellant was informed of the nature of the charges by the recounting by the prosecutor of the events underlying the charge. The appellant admitted that the facts were substantially true. Such an acknowledgment by the appellant of the essential facts of the charge has been held sufficient to satisfy the requirements of understanding embodied in Rule 25.04; Jones v. State, 471 S.W.2d 223, 228 (Mo.1971) and Fisk v. State, 515 S.W.2d 865, 868 (Mo.App.1974). The transcript also reveals that the appellant was informed that the life sentences imposed were to run consecutively rather than concurrently. Appellant’s claim that he was not informed of the range of punishment on Count II of the indictment may not be answered as easily. Nowhere in the transcript is there any clear indication that appellant was informed by the court of the express range of punishment for assault with intent to kill. The State attempts to de-emphasize this omission by reference to Verdon v. United States, supra, at 553, where the court suggests:

“. . . Awareness of the possible range of sentence, when mentioned, is . only one of several factors involved. It is not a factor which, alone and bare, demands in its absence a vacation of a sentence. The circumstances of each case are important.”

Various circumstances have been accepted by courts as overcoming the failure of the sentencing court to inform the defendant of the range of punishment. In Verdón, the additional pertinent circumstance was the fact that Verdón was a past offender with extensive prior knowledge of the criminal justice system. The existence of defendant’s prior criminal record was also found significant in State v. Pedicord, 437 S.W.2d 87 (Mo.1969) and State v. Garrett, 510 S.W.2d 203 (Mo.App.1974). Apparently, this circumstance was deemed to give the defendant a reasonable notion of what the likely consequences of his plea were. Admissions by the defendant that he independently knew of the range of punishment have also been held to obviate the need for the sentencing court to state the range of punishment in the record, Carter v. State, 472 S.W.2d 370, 372 (Mo.1971); Jones v. State, 471 S.W.2d 223, 228 (Mo.1971); State v. Conner, 500 S.W.2d 300, 304 (Mo.App.1973). Defendant’s discussion with defense counsel prior to entry of the plea may also be sufficient, Quinn v. State, 515 S.W.2d 603 (Mo.App.1974); State v. Garrett, supra; State v. Pedicord, supra. In the present case, the additional circumstances legitimizing the trial court’s finding that the guilty plea was voluntarily and intelligently made were discussions between appellant and his attorney at which time appellant was made aware of the State’s recommendation of consecutive life sentences and the fact that appellant was clearly informed of the range of punishment on Count I. In light of these factors, appellant could be held to know at least the most serious likely consequences of his plea. Appellant has failed to demonstrate the manifest injustice, Rule 27.25, which resulted from the failure to inform him of the minimum possible punishment for a charge of assault with intent to kill.

The court’s reading of the cases cited by the appellant in support of this general argument of non-compliance with Rule 25-04 reveals that they are inapposite. State v. Arnold, 419 S.W.2d 59, 62 (Mo.1967); State v. Blaylock, 394 S.W.2d 364, 366 (Mo.1965) and State v. Smith, 421 S.W.2d 501, 504 (Mo.1967), the cases relied upon by the appellant, all involve egregiously inadequate plea records unlike the extensive interview conducted by the trial court in the present case. Thus we reject appellant’s second contention.

The final contention of the appellant involves alleged ineffective assistance of counsel. Two specific instances of inadequacy are suggested. Appellant claims that his attorney advised him that he would receive concurrent rather than consecutive life sentences. The testimony of the attorney at the evidentiary hearing, however, disputes this claim. The conflicting testimony created a question of fact which the trial court apparently resolved against the defendant. At oral argument, the appellant suggested as an additional instance of inadequacy the failure of the defense attorney to request a continuance of the plea proceedings when the attorney became aware of the condition of appellant on the morning of the plea. The suggestion is that appellant was in such a state of anxiety following the aborted escape and alleged beating by the sheriffs that to delay the proceedings would have been desirable. The contention cannot be sustained. As previously discussed in connection with the appellant’s first contention, the occurrence of the beatings was questioned. The claimed state of anxiety resulting from the attempted escape may also be minimized in light of the testimony in the transcript that the attorney found the defendant to be wholly rational in a discussion immediately preceding the entry of the guilty plea. Judged against the current standard of whether the action or inaction of counsel was “of such a character as to result in a substantial deprivation of defendant’s constitutional right to a fair trial . . Thomas v. State, 516 S.W.2d 761, 765 (Mo.App.1974); Cook v. State, 511 S.W.2d 877, 882 (Mo.App.1974), the conduct of the defense attorney in the present case is certainly not damnable. As with other claims in an action for post-conviction relief, appellant has the burden of proof, Crow v. State, 514 S.W.2d 13, 14 (Mo.App.1974) and Cook v. State, supra. The trial court found that appellant had failed to sustain such burden and specifically that the defendant had been properly and ably represented by his defense attorney. Our examination reveals that this finding was not clearly erroneous.

After a thorough review of the appellant’s claims, the transcript of the proceedings and the pertinent law, all of the claims of the appellant are rejected. We, therefore, affirm the judgment of the circuit court.

SIMEONE, P. J., and GUNN, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Stephen R. SCHULTEN, Appellant.
    No. 36402.
    Missouri Court of Appeals, St.Louis District, Division One.
    Aug. 26, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      William B. Spaun, Hannibal, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   PER CURIAM.

Appellant, convicted of second degree murder, was sentenced under the Second Offender Act, § 556.280, RSMo., to 30 years imprisonment. His appeal, filed in the Missouri Supreme Court, was transferred here under the provisions of Missouri Constitution, Art. 5, § 3, as amended 1970.

We are confronted at the outset by appellant’s failure to comply with the rules of appellate procedure as to content and form of the brief. Rule 84.04(c), V.A. M.R., made applicable in criminal cases by Rule 28.18, requires “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Appellant’s statement of facts contains no such fair and impartial statement; instead it consists of an enumeration of the pleadings followed by 14 pages of random verbatim excerpts from the testimony of various witnesses. Though the rule permits a résumé of each witnesses’ testimony, “[S]uch statements may properly follow a general statements of the facts, if desired, but they should not be used to replace the ‘fair and concise statement’ of all the relevant facts required by the rule.” State v. Burns, 322 S.W.2d 736, 739[2] (Mo.1959); Handshy v. Hasty, 444 S.W.2d 48, 49[1] (Mo.App.1969). The random excerpts from testimony do not even constitute such résumés. “To provide a statement of facts which requires an examination of the transcript in order to determine the facts of the case is a travesty upon the rules.” Spradley v. St. Mary’s Hospital, 469 S.W.2d 855, 858 (Mo.App.1971). “The failure of an appellant to comply with the requirements for a sufficient statement of facts, alone, constitutes ground for dismissal of an appeal.” Devoy v. Devoy, 502 S.W.2d 428, 430[2] (Mo.App.1973); Markowitz v. University City, 335 S.W.2d 455 (Mo.App.1960). While we do not dismiss the appeal, it is noteworthy that the statement of facts consists of 15 pages; the “points and authorities” and “argument” sections are but two pages each. Six points of error are purportedly raised and argued in these four pages. No authority is cited under Points II, IV, V and VI in violation of Rule 84.04(d), requiring the inclusion of citations of authorities for points advanced. For failure to provide citations these points are deemed abandoned. Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882, 886[7] (Mo.App.1974); Earney v. Clay, 516 S.W.2d 59, 63[2] (Mo.App.1974). Appellant’s contention in Point II, relating to Instruction No. 11, is objectionable for the further reason it fails to set out the allegedly erroneous instruction as required by Rule 84.04(e). As to the arguments supportive of Points II, IV and V, they are merely restatements of the points in a single sentence each; for Point VI, we find no argument at all. It has been held that points not developed in the argument section fail to meet the requirements and the rule and will not be reviewed. Bopp v. Spainhower, 519 S.W.2d 281, 286[7] (Mo. banc 1975). The sole authority suggested for Point I is the 5th and 14th Amendments and appellant does not develop his theory in the argument section nor cite specific authority for the suggested proposition. Appellant’s argument regarding these points contains “only cursory, unsupported, disjointed legal conclusions, devoid of any logical suasion. The Argument is totally unproductive of any assistance to this court and is completely unacceptable under either the letter or intent of the appellate rules.” Cady v. Kansas City Southern Ry. Co., supra at 886[9]. “Thus the court is left alone to develop the facts, render a decision and write an opinion without the benefit of counsel’s thoughts and complete analysis of the points and issues. We no longer can afford the luxury of doing the work of an advocate on appeal.” Cole v. Cole, 516 S.W.2d 518, 521 (Mo.App.1974) (Simeone, P. J., concurring). Under these circumstances, appellant’s Points I, II, IV, V and VI, preserving nothing for review, are denied.

Appellant’s Point III complains of the trial court’s decision not to submit a manslaughter instruction; yet appellant’s motion for new trial failed to allege facts warranting such an instruction. Supreme Court Rule 27.20(a) provides that a motion for a new trial “must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” The Missouri Supreme Court, construing this rule in State v. Cheek, 413 S.W.2d 231, 238[17] (Mo.1967), stated: “Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction. ... In that situation we rule that this assignment wholly fails to comply with S.Ct. Rule 27.20(a) and hence does not preserve anything for review. ” See also State v. Luttrell, 366 S.W.2d 453, 459[4] (Mo.1963). Therefore as similarly ruled relative to Points I, II, IV, V and VI, we find nothing presented or preserved for review in appellant’s Point III. This court has no duty to seine the transcript for facts and research the law in order to develop appellant’s arguments. Griffith v. State, 504 S.W.2d 324, 327[3] (Mo.App.1974); Anderson v. State, 493 S.W.2d 681, 685[7] (Mo.App.1973).

We have reviewed the transcript for plain error under Rule 27.20(c), V.A.M.R., and find none. The only issue requiring further comment is whether, as plain error, the appellant was entitled to an instruction on the lesser offense of manslaughter raised by appellant’s Point III.

In the instruction conference the court considered and concluded a manslaughter instruction was not warranted under the evidence. Further, appellant and appellant’s counsel stated they did not believe the evidence justified and explicitly rejected the giving of a manslaughter instruction. Shortly before this cause was tried, the Missouri Supreme Court in State v. Sturdivan, 497 S.W.2d 139, 142[8, 10] (Mo.1973) affirming a first degree murder conviction and approving the trial court’s refusal to instruct on manslaughter, stated:

“Manslaughter is the intentional killing of a human being in heat of passion, on reasonable provocation, without malice and premeditation.” § 559.070, RSMo 1969, V.A.M.S.

and concluding that the record did not warrant a manslaughter instruction held:

“Where there is no evidence of provocation, assault or encounter which excites passion beyond control or of culpable negligence, there is no duty to instruct on manslaughter.”

This conformed with M.A.I.-C.R., 6.08 notes on use, effective at the time of trial, which provided: “Where higher grades of homicide are submitted, a manslaughter instruction should not be given unless there is evidence to support the giving of it. It should not be given automatically.”

In light of the trial court’s express finding that a manslaughter instruction was not warranted, the state of the law at the time of trial, the appellant’s express rejection of the instruction, and appellant’s failure to properly preserve the Point in his motion for new trial, we cannot say that the failure to instruct the jury on manslaughter has resulted in a “manifest injustice or miscarriage of justice” under Rule 27.20(c), V.A.M.R.

Judgment affirmed.

All the Judges concur.

      . Rule 84.04(e) V.A.M.R.: . . . “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief

      . The Missouri Supreme Court has recently held that second degree murder and manslaughter instructions must be given in all conventional murder cases. State v. Staple-ton, 518 S.W.2d 292, 299-300[3, 5] (Mo.banc 1975); see also the notes on use for M.A.I.C.R. 6.02, 6.06, 6.08 (effective March 8, 1975).


author: ROBERT R. WELBORN, Special Judge.

text:
    Avis V. McBEE and Willis R. McBee, Appellants, v. Robert James SCHLUPBACH, Respondent.
    No. KCD 26891.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Oswald & Cottey, Thomas R. Oswald, Kirksville, for appellants.
    Collins & Grimm, David Collins, Macon, for respondent.
    Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries received in automobile collision. Avis V. McBee sought $30,000 damages for her bodily injuries. A jury returned a verdict in her favor for $1,500. Her husband sought $13,000 for his wife’s medical expenses and loss of her services. The jury verdict in his favor was for $2,500. Plaintiffs’ motion for new trial was overruled and they appealed.

Appellants’ brief states their claim on this appeal as follows:

“This appeal is concerned with alleged error in the giving of Instruction No. 9 prepared and tendered by Respondent and which relates to the issue of damages. Appellants contend that this instruction was error, the giving of which established a presumption of prejudicial error which may have tended to influence the amount of the verdict, and therefore Appellants are entitled to a new trial on the issue of damages even though the verdict might not have been, as a matter of law, inadequate.”

Their sole assignment of error is that the giving of Instruction No. 9 was prejudicial error.

As a preliminary matter, respondent urges that appellants’ allegation of error should not be considered because appellants have not briefed the alleged inadequacy of the verdict. Respondent’s principal reliance is upon Thomas v. Jones, 409 S.W.2d 131 (Mo.1966). In that case the question presented was whether or not a plaintiff who did rely unsuccessfully upon inadequacy of the verdict as a matter of law might nevertheless have judgment on a verdict in his favor set aside because of errors relating to the trial of the issue of damages as distinguished from liability. The court concluded that such error could be the basis of a new trial at plaintiffs request and granted a new trial on the issue of damages only. That case does not hold that such relief may be granted only in a case where plaintiff contends that the verdict is the result of bias or prejudice or that it is shockingly inadequate. To impose such a condition upon a plaintiff’s right to complain of trial error having a demonstrable connection with the amount of the verdict in his favor would be without reason and would require a plaintiff-appellant in a case such as this to brief an issue not necessary to be determined in affording plaintiff relief. Senter v. Ferguson, 486 S.W.2d 644 (Mo.App.1972). The respondent’s contention is without merit.

This cause of action arose out of a collision which occurred in Downing, Missouri, on September 3, 1949, shortly after 9:00 P.M. Plaintiff Avis McBee was driving a 1964 Chevrolet station wagon, with her six children as passengers, west on Route 136. She stopped because of oncoming traffic, preliminary to making a left turn into Route V. An auto behind her, driven by Steven Kirkpatrick, stopped about a vehicle’s length behind the McBee auto. When Kirkpatrick stopped, he looked into his rear view mirror and saw an auto driven by Robert James Schlupbach turning into Route 136 about a block away. Kirkpatrick looked to see whether the McBee car had made its turn. When he did so he heard brakes “squealing” and he saw the Schlup-bach car sliding toward his auto. Schlup-bach’s car struck the Kirkpatrick auto and knocked it into the McBee vehicle.

The impact threw Mrs. McBee forward and her chest hit the horn and her right knee the dashboard. She remained at the scene of the collision for about two hours and then drove her auto to her home, 1½ miles west of Downing. The McBee auto received slight damage to the rear bumper and a trailer hitch.

When Mrs. McBee got home, her neck, low back, chest, left shoulder and right knee were causing her pain. She attempted to contact her regular physician, Dr. Eleanor Roberts, D.O., the next day, but was unsuccessful and saw Doctor Roberts at her office the following day. Doctor Roberts sent her to the Kirksville Osteopathic Hospital for X-rays, which showed no fracture or dislocation of the right knee or of the bony elements in the neck or low lumbar area. The X-ray report included a finding of limited motion in the cervical area. According to Doctor Roberts, Mrs. McBee complained that she “hurt all over.”

Then followed a series of visits by Mrs. McBee to Doctor Roberts until February, 1970, when she sent Mrs. McBee to see Dr. Wayne R. English, D.O., specializing in rehabilitation medicine at Kirksville Osteopathic Hospital. Doctor Roberts testified that during the visits to her she observed “quite a bit of muscle tension within the cervical area, the neck, the upper thoracic area.” She gave osteopathic treatment and analgesic drugs which Mrs. McBee could not tolerate. Muscle spasms developed in the cervical area, with left arm involvement, including weakness in the left hand and restricted motion in the shoulder joint. She also had low back trouble and trouble with her right knee.

When Doctor English first saw Mrs. McBee in February, 1970, she was complaining of pain in the cervical-dorsal area, mainly the left side, pain in the left anteri- or thorax, pain in the right knee and pain in the lower back referred to the right hip. He examined the previously taken X-rays and made a diagnosis of “acute cervical-dorsal strain with left shoulder girdle myofas-citis.” Doctor English saw plaintiff about six times and she received physical therapy in the rehabilitation department of the hospital throughout the month of February.

Mrs. McBee then returned to Doctor Roberts for three times a week treatment for several weeks. She continued to see Doctor Roberts until March, 1971. At that time, she still had weakness in her left hand and restricted motion in her left shoulder. The right knee would not lie flat. Doctor Roberts was of the opinion that she had permanent restriction of the cervical area, resulting in impaired use of the left shoulder and arm. She also thought she had a permanent injury to her right knee and the upper thoracic area.

In March, 1971, Doctor Roberts returned Mrs. McBee to Doctor English’s care. At Doctor English’s recommendation Mrs. McBee was hospitalized at Kirksville Osteopathic Hospital from March 22, 1971 to April 3, 1971. Following her discharge from the hospital Mrs. McBee received a series of 48 to 50 treatments, under Doctor English’s supervision, as an out-patient, continuing until the time of the trial in June, 1973.

At the trial Mrs. McBee testified that she continued to have pain in the back of her neck, down her left shoulder, in her lower back and down her right hip into her knee. She testified that she had no grip in her left hand and couldn’t raise her left arm higher than her shoulder.

Doctor English testified that Mrs. McBee would require treatment the rest of her life for her condition. He attributed her complaints to nerve involvement following spinal muscle and ligament damage sustained in the collision.

At the time of trial Mrs. McBee’s medical expenses amounted to more than $2,400.

Defendant had Mrs. McBee examined May 10, 1973 by Dr. Lucius C. Hollister,' M.D., a graduate of Northwestern University Medical School and a board certified orthopedic surgeon who had practiced that specialty for 17 years at Quincy, Illinois. Respondent summarizes Doctor Hollister’s testimony of his observations and conclusions, based upon such examination, as follows:

“Dr. Hollister’s examination of Mrs. McBee included measuring the circumference of both of her arms. He found no evidence of atrophy and that part of the examination did not indicate there has been any limitation of motion. He examined her left shoulder. To him it seemed that her restriction was voluntary. In his examination he could not find any cause, reason or explanation for this restriction in her left shoulder. He could not find any explanation or cause for why she could not lift her left elbow up to the same level as the right. In examining her left elbow he could find no explanation as to why she was unable to straighten it out. His examination of the forearms and wrists did not show anything significant. He tested the strength of her grasp by a device called a dynamometer. In her right hand she measured 140 and in the left she only moved the dial to 10. He found no explanation for this in view of the fact that she had no atrophy of her left forearm.
“He measured her leg at six different levels. Her right leg was very slightly larger than her left at the ankle, calf and knee but her right thigh was smaller than 'her left. The doctor did not have an explanation for this. Dr. Hollister also testified that the x-rays he had taken on May 10, 1973 showed no evidence of soft tissue calcification and that if she had sustained serious damages to a ligament or muscle this would have been present.”

The case was submitted to the jury on a charge of negligence in failing to keep a careful lookout on both counts. The court gave a converse instruction in the form of MAI No. 33.02(5), as follows:

“INSTRUCTION NO. 5
“Your verdict must be for the defendant and against both Avis V. McBee and Willis R. McBee if you do not believe that Defendant was negligent as submitted in Instructions Nos. 3 & 4, and that plaintiff Avis V. McBee sustained damage as a direct result thereof.”

Damage instructions, conforming to MAI No. 4.01, were given on the claim of each of the plaintiffs.

Then followed Instruction No. 9, offered by the defendant and reading as follows:

“You are instructed by the Court that Defendant is not liable to either of the Plaintiffs for injuries or expenses which you do not believe were the direct result of Defendant’s negligence.”

The jury returned a verdict for Avis McBee of $1,500 on Count I. On Count II its verdict was for $2,500 for Willis McBee. Plaintiffs’ motion for new trial was overruled and they appealed.

On this appeal, appellants contend that the trial court erred in giving Instruction No. 9 because it erroneously sought to modify, enlarge, change and explain appellants’ damage instructions and respondent’s converse instruction; because it amounted to a second converse, in violation of MAI No. 33.01; because it violates Rule 70.01(b) requiring the use of an appropriate applicable MAI instruction to the exclusion of any other on the subject; because it “argued the Respondent’s defense on damages by forcefully hammering home and overemphasizing his contention that Appellants were making a claim for injuries and expenses not the result of Defendant’s negligence”; and because it argumentatively substituted the evidentiary facts “injuries and expenses” for the MAI approved language “damages.”

Respondent’s position is that Instruction No. 9 was a “cautionary” instruction, authorized by the “Notes on Use” under MAI No. 2.01, and given as an exercise of discretion by the trial court, “which discretion was obviously not abused and hence should not be interfered with on appeal,” and that appellants’ complaints against it are without merit.

In Houston v. Northup, 460 S.W.2d 572, 575-576 (Mo. banc 1970), the court stated:

“Implicit in a scheme of approved pattern instructions such as MAI is the central idea that such instructions do not require further clarification or amplification. They submit ultimate issues and do so adequately. Consequently, we have held in cases such as Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, and Murphy v. Land, Mo., 420 S.W.2d 505, that change in the prescribed language other than the authorized modifications is not permissible and constitutes error. Necessarily, it also follows that it is not permissible to modify or enlarge or change or explain MAI instructions by separate instructions not provided for or authorized in MAI. To permit modification, clarification or improvement by separate instructions would be just as objectionable as doing so within the body of the prescribed instructions.”

There was a single predominant issue in this case, i. e., the extent to which plaintiff Avis MeBee’s injuries and complaints were related to the automobile collision in which she was involved. There was, of course, the preliminary question of liability, but that was not the hotly contested issue in the case. The jury was instructed in accordance with MAI as to what damages the plaintiffs were entitled to, once the question of liability was resolved. Instruction No. 7 informed the jury that plaintiff Avis McBee was entitled to damages they believed she sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in evidence. Instruction No. 8 informed the jury that Willis McBee was entitled to such damage as he sustained as a direct result of the injury to Avis V. McBee. These instructions adequately submitted the issue and there was no necessity for any further explanation of the damages to which plaintiffs were entitled. Instruction No. 9 was an attempt, not authorized by MAI, to provide further explanation of the authorized damage instructions. As such, it is contrary to the scheme of MAI and presumptively prejudicial. Brown v. St. Louis Pulic Service Company, 421 S.W.2d 255, 259 (Mo. banc 1967); Senter v. Ferguson, 486 S.W.2d 644, 646-647[1] (Mo.App.1972).

Respondent’s attempt to justify the instruction as a “cautionary” instruction, within the Notes on Use under MAI No. 2.01, must be rejected. No such instruction was needed to direct the jury’s attention to the vital issue in the case or to prevent their being diverted from that issue. The issue was clearly drawn and fully and adequately instructed upon. The cloak of “cautionary instruction” may not be relied upon to justify an obvious violation of the now well-established rules for the use of MAI. See Brown v. Public Service Company, Houston v. Northup, Senter v. Ferguson, supra.

As respondent points out, the discretionary power of the trial court to give cautionary instructions was not suggested to the appellate court in either Houston or Senter. However, there is no suggestion in either of those cases that the mere adoption of a label would have avoided the error found in those cases.

Respondent has cited Temple v. Atchison, Topeka and Santa Fe R. Co., Mo., 417 S.W.2d 97, 99, in which, he says, a cautionary instruction was approved under MAI practice. The opinion in that case does refer to the instruction as a “cautionary instruction.” 417 S.W.2d 99. However, the instruction in that case was obviously a withdrawal instruction, as the writer of the opinion subsequently tacitly acknowledged. State ex rel. State Highway Commission v. Flick, 427 S.W.2d 469, 471[3] (Mo.1968). In this case, respondent tendered an instruction withdrawing from the jury’s consideration evidence of disability of Avis McBee’s left shoulder, left arm and left hand. The instruction was refused. Respondent does not argue here that he was entitled to that instruction.

The applicable MAI instruction adequately presented to the jury the issues of liability and damages and the giving of Instruction No. 9 was error. There being no contention that the error was not prejudicial, the judgment must be reversed and the cause remanded for new trial on the issue of damages only. Rule 84.14.

Reversed and remanded for new trial on issue of damages only.

All concur.


text:
    Dennis MEINKING, Respondent, v. Starlyn M. MEINKING et al., Appellants.
    No. KCD 27319.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      James R. Wyrsch, Kansas City, Duncan & Russell, William E. Shull, Gladstone for appellants.
    DeWitt, Zeldin & Laurent, Stanford A. Zeldin, A. Robert Parelman, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment modifying divorce decree by transferring custody of two minor children from their maternal grandparents to their father.

On April 13,1973, a decree of divorce was entered in favor of Dennis C. Meinking, plaintiff, against Starlyn Meinking, defendant. Custody of the couple’s two minor children, Denise and Christina, was awarded James D. Noland and Loretta Noland, parents of Starlyn Meinking. Their father was granted visitation rights every other Saturday from 9:00 A.M. to 6:00 P.M. and ordered to pay $20 per week per child for the support of the children.

On October 24, 1973, Dennis Meinking moved to modify the divorce decree insofar as it awarded custody of the children to the Nolands. The motion alleged material change in the circumstances of the parties in that plaintiff had remarried and his wife has met and loves the children and that plaintiff has “roomy living accommodations and is able to make and provide said minor children with a warm and loving home and family unit so that said minor children may grow up in a normal environment more conducive to the individual development of each child.” The plaintiff prayed for amendment of the decree to give custody of the children to plaintiff. The defendant and her parents filed a general denial to the motion.

The motion was heard March 11, 1974. At that time Denise was four years of age, Christina two. Dennis Meinking, then 25 or 26 years of age, testified that he had been employed for five years as a welder and that he received around $175 per week, net pay. He had remarried September 1, 1973. He and his wife lived in a two-bedroom apartment. One bedroom would be available for the children. He stated that he had no complaint about the Nolands’ treatment of the children, but brought the action “because I love my two girls and I want them with me and my wife and I feel that I can provide more love and my wife can provide more love than they could.”

“I feel that we could raise them better because we are growing up with them and I’m the natural father and they don’t have to take second place in my family. In the Nolands’ home, they are older couple and they raise some of the kids fine and they try to raise the girls right but yet they have their own two kids they have to think of them and they have responsibility to babysitting even if they are the grandparents they love the two girls but I think I’m in a better position to raise them financially.”

He stated that since the divorce he had paid all his bills and was financially better able to “afford the kids.”

Plaintiff admitted that at the age of 17 he had been convicted on a plea of guilty to either “strong arm robbery” or “petty theft,” arising from his seizing a purse from a woman. He served 11 months in the Clay County jail on the conviction.

Kay Meinking, 22 years of age, wife of plaintiff, testified that she was familiar with the children. They seem to like her and she loves them very much. At the. time of the hearing she was employed by Southwestern Bell Telephone Company, but planned to stop work if her husband’s motion was granted. She testified that she and her husband had made inquiries about buying a house, but she was vague as to whom she had talked on the subject.

In opposition to the motion, Mr. Noland, 46 years of age, testified that he and his wife had lived in Independence 19 years. He was employed by Allis-Chalmers and earned approximately $225 per week. He and his wife and their 14 and 20-year old sons lived in a three-bedroom house. The girls occupied one of the bedrooms. They received the same care as his own children. He had no trouble with Dennis Meinking over his visitation rights. He and his wife take the girls to church three times a week. The children’s mother did not live with her parents, but she saw them regularly.

Mrs. Noland testified that, in addition to her children and the two girls, she cared for a third child in his home as a “baby sitter.” She had also kept a second child on that ' basis for a short time. She stated that she desired to keep the Meinking children “until a fit and proper home is made” for them.

The defendants also offered testimony to the good reputation of the Nolands. Defendant Starlyn Meinking did not testify.

On the evidence, the trial court sustained plaintiff’s motion and awarded him custody of the children, with visitation rights to the Nolands on every Sunday from 8:00 A.M. to 7:00 P.M. After defendants’ motion to amend the judgment and for a new trial or to modify the judgment was overruled, defendants appealed. The trial court stayed the effect of the change in custody, pending the appeal.

A preliminary question raised by appellants is whether or not the modification request in this case was governed by § 452.-410, RSMo 1973 Supp., a part of the new marriage dissolution law. Appellants contend that it is, citing § 452.415, subd. 2., RSMo 1973 Supp., as follows:

“2. Sections 452.300 to 452.415 apply to all pending actions and proceedings commenced prior to January 1, 1974, with respect to issues on which a judgment has not been entered. Pending actions for divorce or separation are deemed to have been commenced on the basis of irretrievable breakdown. Evidence adduced after January 1, 1974, shall be in compliance with sections 452.300 to 452.415.”

However, subparagraph 3 of § 452.415 provides:

“3. Sections 452.300 to 452.415 apply to all proceedings commenced after January 1, 1974, for the modification of a judgment or order entered prior to January 1, 1974.”

Inasmuch as this provision deals directly with modification proceedings, it applies here, rather than subparagraph 2, dealing generally with proceedings commenced prior to January 1, 1974, in which judgment had not been entered.

Appellants contend that the respondent failed to sustain his burden of proof to adduce substantial evidence of new facts and changed conditions to authorize the modification of the decree, failed to show that the requested modification would be in the best interest of the children, and failed to show that he was a fit person to have custody of the children.

Appellants cite the recent decision of this court in Flickinger v. Flickinger, 494 S.W.2d 388 (Mo.App.1973). That case states the applicable law as follows (494 S.W.2d 391-392):

“* * * In Drew v. Drew, 186 S.W.2d 858 (Mo.App.1945), this court said, 1. c. 865:

‘ * * * When one seeks to exercise a trust of such importance (custody) * * ⅜ the character and fitness of the applicant should be subjected not only to a broad but to a thorough investigation, and very clear and convincing proof of such fitness should be offered, particularly with a view of determining the effect of any proposed change of custody upon the welfare of the child.’ (Emphasis added.)

“A corollary of this rule equally logical and firmly established, is that where a court of competent jurisdiction has awarded the custody of children in a divorce proceeding, there must be substantial evidence of new facts and changed conditions to authorize any modification of the original decree and the burden of proof in this regard rests upon the moving party. Davis v. Davis, 192 S.W.2d 41, 43 (Mo.App.1945); Yount v. Yount, 366 S.W.2d 744, 748 (Mo.App.1963).

The facts that respondent had remarried and could provide the children with an adequate home with the care of a father and mother were sufficient evidence of a change of conditions, required under this rule. Warman v. Warman, 496 S.W.2d 286, 287[1] (Mo.App.1973); Swan v. Swan, 262 S.W.2d 312, 315[3] (Mo.App.1953).

Appellants’ argument that the change in conditions was required to be a change in the condition of either the custodian or the children is based primarily upon § 452.410, which provides:

“The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

In view of the conclusion previously reached that § 452.410 is not applicable, there is no necessity to consider whether that provision is a “codification” of the existing law (see McFadden v. McFadden, 509 S.W.2d 795, 798 fn. 1 (Mo.App.1974)) or whether it limits the factors which may provide the basis for modification of a custody order.

Under the law of this state as set out in the above cited cases, the facts of this case showed sufficient evidence of changed conditions to warrant the transfer of custody of the children from their grandparents to their father. The cases of Birrittieri v. Swanston, 311 S.W.2d 364 (Mo.App.1958), and Bohling v. Bohling, 464 S.W.2d 767 (Mo.App.1970), relied upon by appellants for-the proposition that remarriage alone is insufficient to warrant a change of custody, involved disputes between the parents, with the parent who remarried seeking a change in custody from the other to whom custody had been granted. That is not the situation here. There is no necessity to consider the numerous cases from other jurisdictions relied upon by appellants on this proposition.

As argued by appellants, the mere changed conditions, standing alone, do not justify a change in custody unless it further is shown that such change is in the interest of the welfare of the children.

The trial court was justified in concluding, as it did, that a transfer of custody to the father from the grandparents would be beneficial to the children’s welfare. Mrs. Noland recognized that their custody of the children was more or less temporary, “until a fit and proper home is made” for them. The court could well conclude that an early change would be less traumatic than one after the children had become older and possibly less adaptable to change. Furthermore, Mrs. Noland recognized that she was giving “grandmotherly” care, not motherly care, which the court might find would be provided in the changed situation. The trial court’s conclusion on this largely discretionary finding will not be disregarded.

Appellants also contend that respondent failed to show that he was a fit person to have custody of the children. This charge is premised largely on respondent’s conviction at the age of 17 and his testimony that he had provided no religious training for the children except by helping Denise to sing church songs once in a while, and that he went to church himself “maybe once a month.” The conviction was remote and there was no evidence of other unlawful activity on the part of the respondent. The respondent’s visitation right had been limited to Saturday and appellants testified that they took the children to church twice on Sunday which would explain respondent’s role in this regard.

The trial court had an opportunity to observe respondent and his wife. The evidence showed that respondent was regularly employed and was managing his affairs responsibly. He had exercised his visitation rights regularly, evidencing a concern for his children who voiced no “negative” reports to the Nolands concerning respondent. Appellants’ contention that he had failed to show that he was a fit person to have custody of the children is without merit.

In the cross-examination of respondent, appellants’ counsel asked:

“[Djuring the marriage, didn’t you strike Starlyn * * * ?”
Respondent replied: “In self defense.”

Respondent’s counsel then objected that the inquiry was irrelevant. Appellants’ counsel stated that he intended to show respondent “has a propensity for violence and that would show whether or not he would be able to care for the children.”

The court sustained the objection, remarking: “I don’t think we should go back to the grounds for divorce.”

Appellants’ counsel then inquired of the witness whether or not he had told the children that “a man would take care of Grandpa” and whether he had threaten to kill himself and the children. Negative replies were made to both questions and the matter was not pursued further.

There is nothing in the trial court’s action which calls for reversal of its order. Appellants’ counsel received an answer to the question objected to. The answer was not stricken. Further questions designed to support his attempt to show a violent disposition on the part of respondent were propounded without objection and produced negative responses. There was no offer of proof to show that but for the trial court’s ruling, further matters would be explored. Therefore, the trial court is not to be held to have erred.

Judgment affirmed.

All concur.