text:
    In re the Marriage of Ruth B. GALLOWAY, Appellant, and John K. Galloway, Respondent.
    No. 9928.
    Missouri Court of Appeals, Springfield District.
    Feb. 7, 1977.

      Frieze, Crandall & Crawford, Carthage, for appellant.
    James E. Brown, Joplin, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This is a dissolution of marriage proceeding. The trial court has dissolved the marriage, set apart the parties’ separate property, divided the marital property and granted the appellant (Ruth) a temporary maintenance order. Ruth now appeals upon the grounds that the division of marital property is so unequal and the award of maintenance so inadequate as to amount to an abuse of discretion. Upon the singular facts of the case, we reverse and remand.

Ruth was 66 years of age when she and John were married on February 24, 1973. She was then employed as a secretary in a St. Louis insurance office; she had been so employed- with one or another insurance firm for about 29 years. Her annual income was approximately $7,000. Ruth retired when she married John, relying on John’s assurance that the two would move to Elsberry “and travel and be married and have a home.”

The parties did move to Elsberry, and John purchased a home. Ruth contributed the furnishings and about $1,000 — “four social security checks” — to the establishment of this home. At first, Ruth and John seem to have been compatible. As Ruth described their relationship, she and John were never “lovey-dovey”, but got along very well. John was “supposed to be retired” but he continued to work. Ruth kept house, cooked meals when John asked, and in counsel’s words, “perforated] household chores”. John had a “heart attack” in July 1973 and while he was in the hospital Ruth wrote letters, made telephone calls and “did everything [John] asked me to do”.

After his heart attack in July, John decided to give Ruth an interest in some of his assets. In a pretrial deposition, parts of which were offered on trial, John testified that his purpose was to provide Ruth “with a definite means of living”, and that he intended to provide her with assets when he made the gift. John denied that all the property Ruth claimed as marital property was properly classified as such, but the record supports the trial court’s finding that the marital property includes 1) a house and lot worth $25,000 to $28,000, and 2) seven promissory notes in the total amount of $48,508, all made payable to John and Ruth, all secured by deeds of trust.

We do not know, of course, when John and Ruth’s marital troubles began, but their marriage deteriorated and the two literally began to fight. On one occasion they started arguing about a chair after they had retired for the evening. John called Ruth “every name under the sun” and Ruth slapped him. Ruth’s testimony suggests that John abused her physically on several occasions. On April 2, 1974, Ruth testified, John knocked her down, beat her and “stomped” on her. She was severely injured and was obliged to have her injuries treated by a physician. In May 1974 John suffered another heart attack near an “eating and drinking” place. Ruth was called, went to the eating and drinking place and found John sitting in a car with a group of people. John was intoxicated and attempted to kick Ruth when she offered assistance. We may say, without detailing the proof, that Ruth’s evidence tended to show that John’s assault upon her had seriously, possibly permanently disabled her.

In connection with her prayer for a maintenance order, Ruth testified that her assets consisted of the household furnishings she brought into the marriage and a savings account in the amount of $3,200, which she was keeping as a “burial account”. Her monthly income consists of social security benefits in the amount of $282.50; her estimated living expenses, including continuing medical care, come to $600 per month. Her testimony was that she could not find employment because of her advanced age — 68 —and because she was in poor health. Ruth’s evidence bearing upon John’s means was rather indefinite because she had paid little attention to his business, but she indicated that John had, in addition to his interest in the marital property, 1) an interest in a 300-360-acre farm in or near Elsberry; 2) $24,000 in bonds (one of which may have been cashed) and 3) an annual income in excess of $30,000. Ruth makes no claim to any interest in any of these assets.

After Ruth had offered evidence, the court announced to the parties and counsel that “based upon the evidence which the Court has heard so far”, it was inclined to award all the marital property, including the real estate and promissory notes and part of the household furnishings (fixtures bought after the marriage) to John. Ruth would receive the household furnishings she had brought into the marriage. Ruth »would be granted a maintenance order in the amount of $100 per week until March 1, 1975 (about 3½ months) and thereafter in the sum of $150 per month, to terminate on September 1, 1975. Being so advised, John declined to present any evidence. The court thereupon volunteered this statement (our emphasis):

“Let me say this, gentlemen, if this lady’s got a claim for personal' injury based upon an assault, this Court is not in a position at this time of adjudicating that matter and if she’s got some claim for personal injury as a result of assault, why she’s got recourse through the Courts for that. The only thing I am here to do is to grant her what maintenance I feel she is entitled to based upon being married to this man for a little over a year . . .”

We reiterate the views of this court recently expressed in In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1976); in marriage dissolution cases, the trial court is vested with broad discretion in dividing marital property and granting maintenance orders, and an appellate court should not interfere unless an abuse of judicial discretion appears. And, of course, our review is limited in this bench-tried case. Rule 73.-01(3), V.A.M.R.; Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

Nevertheless, as held in Murphy v. Carron, supra, 536 S.W.2d at 32, the decree or order in a court-tried case merits no deference when it appears the trial court has erroneously declared or applied the law. If it appeared here that the trial court’s judgment was based on its opportunity to see and observe live witnesses, and its opportunity to assess their credibility in light of their demeanor and its observation, the judgment would require deference on our part, but it does not appear on this record that the court chose to disbelieve Ruth’s evidence. To the contrary, it appears that the court regarded John’s assault upon Ruth not as “conduct” to be weighed and considered in rendering this judgment, but as the basis of an independent action. With deference, we believe the trial court erroneously declared and applied the law. Since its decision in Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382 (1915), our Supreme Court has consistently adhered to the doctrine of interspousal immunity in cases involving personal torts. Klein v. Abramson, 513 S.W.2d 714, 717[3] (Mo.App.1974). That immunity survives divorce. Ebel v. Ferguson, 478 S.W.2d 334 (Mo. banc 1972). In our opinion John’s assault upon his wife shortly before she left him was “conduct” to be considered in dividing marital property and in deciding whether to award maintenance.

We are in no position to render judgment here on the fragmentary record presented. It appears that there was considerable marital property, and that John had means to pay maintenance. On the other hand, John’s health is poor, and we do not know the extent of his debts. It does clearly appear that the trial court erroneously declared and applied the law. Solely for that reason, we reverse the judgment and remand the cause for further hearing.

All concur.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    CARPENTER-UNION HILLS CEMETERY ASSOCIATION, a Not-For-Profit Corporation, and Mary Lindsey, Plaintiffs-Respondents, v. CAMP ZOE, INCORPORATED, Defendant-Appellant.
    No. 10090.
    Missouri Court of Appeals, Springfield District.
    Feb. 8, 1977.

      Richard D. Moore, Moore & Brill, West Plains, for defendant-appellant.
    Jerry L. Wilkerson, Ball & Wilkerson, Salem, for plaintiffs-respondents.
   FLANIGAN, Judge.

In this action plaintiffs sought, and the trial court granted, an injunction permanently restraining defendant “from obstructing, barricading, or in any other way interfering with” plaintiffs’ use of a certain road, referred to in the record as the Green Road. Defendant appeals.

Appellate review of this non-jury action is governed by Rule 73.01 V.A.M.R. as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The Green Road affords access from Highway 19, in Shannon County, Missouri, to a cemetery “known variously as the Carpenter-Union Hills Cemetery or the Union Hills Cemetery.” Plaintiff Carpenter-Union Hills Cemetery Association is a Missouri not-for-profit corporation organized to maintain the cemetery. Plaintiff Mary Lindsey has relatives buried in the cemetery, as do several officers and members of the corporate plaintiff.

The petition alleged that the defendant owned the “Northwest Quarter of Section 8, Township 30 North, Range 40 West” in Shannon County, Missouri, except a three-acre tract on which the cemetery is located. The answer admitted that the defendant owned the northwest quarter of Section 8. The evidence showed that the cemetery is located in the west half of the northeast quarter of Section 8, thus lying some distance east of defendant’s land. Section 5 is located north of and adjacent to Section 8. Highway 19 runs generally north and south through Section 7 which is located west of and adjacent to Section 8.

The Green Road, for the purpose of describing it, may be considered as consisting of five segments. Segment I commences in Section 7, at a point where the Green Road intersects Highway 19, and proceeds easterly approximately 200 feet to the west line of Section 8, which line is also the western boundary of defendant’s land. Segment II commences at that point and proceeds northeasterly across defendant’s land and ends at the north line of Section 8, which line is defendant’s northern border. Segment III commences at that point and continues northeasterly into Section 5, then easterly, then southeasterly to a point on the north line of Section 8 where it reaches the northern boundary of defendant’s land. From that point Segment IV runs southerly or southeasterly across defendant’s land to defendant’s eastern border. Segment V commences at that point and runs easterly to the cemetery.

It will be observed that only two of the segments (II and IV) run across the land of defendant. The owner of the land across which Segment I runs was not identified, although one witness thought “it belongs to the federal government.” Segment III runs across land owned by Leo Dry. The ownership of the land across which Segment V runs is not made clear by the record.

In 1970 or 1971 defendant erected a gate across the Green Road at the west end of Segment II. In 1974, defendant locked the gate, thereby precipitating this action.

The petition advanced several theories on which plaintiffs predicated their claim to a right to use the Green Road for access to the cemetery from Highway 19 and to in-junctive relief against defendant’s interference therewith. One theory was that plaintiffs had acquired an easement by prescription. Other theories included “adverse possession,” “dedication,” and the establishment of the Green Road as “a legally established road” by reason of the expenditure of public money or labor pursuant to § 228.190 RSMo 1969, V.A.M.S.

The trial court found, among other things, that no roadway other than the Green Road “reaches the cemetery from Highway 19.” However, the trial court did not state specifically which theory or theories it adopted in granting plaintiffs the injunction. If plaintiffs were entitled to relief on the theory that they had an easement by prescription, the validity or invalidity of other possible theories need not be explored. Guerin v. Yocum, 506 S.W.2d 46, 47[2] (Mo.App.1974).

To sustain a claim to an easement by prescription the plaintiffs must prove four essential facts. They are: (1) the user was for the prescribed period; (2) the user was adverse; (3) the user was under a claim of right; and (4) the owner had notice of the user, and of its character and of the claim of right. Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28[2] (1951).

Defendant’s first appellate contention,. the invalidity of which is dispositive of this appeal and requires affirmance, is that the evidence is insufficient to show acquisition of an easement by prescription because: (a) “the user was not presumptively adverse and plaintiffs did not introduce any evidence to show that the user was adverse”; (b) even if the user was presumptively adverse, defendant offered evidence [to be detailed later in this opinion] which rebutted the presumption; (c) even if plaintiffs did introduce evidence of adverse user, it was not “clear and convincing evidence” because an alternative access road existed at the time of the initial use of the Green Road and because defendant had and has “no objection to the use of the Green Road for access to the cemetery.”

Plaintiffs’ evidence was presented by ten witnesses and included an aerial photograph of the general area, showing the cemetery, the Green Road, and Highway 19. Other photographs showed the various segments of the Green Road. The Green Road, plainly visible, appears from the photographs to be well traveled. Portions of it seem to be graveled. It goes through some land which is fenced and passes by some buildings. Some portions of it seem to pass through wooded areas but other portions pass through areas which have been cleared. The cemetery is a large one. Many prominent headstones are there, some of recent vintage, and at least one bears an inscription indicating it was placed there in 1902. Photographs demonstrate that the cemetery has been well kept.

Photographs introduced by the defendant also show many of the features enumerated in the preceding paragraph. Defendant’s land, since 1928, has been used as “a private summer camp for boys and girls” and is operated under the name of “Camp Zoe.”

Plaintiffs’ witnesses, most of them elderly, gave testimony to the effect that the Green Road had been used extensively and continuously by “lots of people” for many years. One witness said it had been in use since she was eight years old and she was 78. Wagons, teams of horses, cars, and pickup trucks used it over the years. The Green Road was used for access to the cemetery before Highway 19 was built in the middle 1920’s. None of plaintiffs’ witnesses had ever asked permission from anyone to use the road — “I did not feel I needed to, no one ever tried to stop me.” The witnesses had relatives or in-laws buried in the cemetery and they visited the cemetery with frequency by using the Green Road from Highway 19.

One of the witnesses for plaintiffs was Joe Thompson, age 80, who, from 1944 to 1949, owned some of the land on Segment IV now owned by the defendant. The Thompson place was “next to the cemetery.” No one ever asked him for permission to use the Green Road and it had been in use, to his knowledge, since 1904. Over the years he has used it “every two or three weeks.”

Another witness for plaintiff had lived on the Thompson farm from 1939 to 1943. She testified that the Green Road to her knowledge had been used since 1933, that no one had ever asked permission to use it, and that all types of vehicles used it “lots and lots of times a year.” Another witness had lived at a house along the Green Road in 1937 and gave similar testimony concerning extent of use. Prior to the erection of the gate and the later locking of it by defendant, there had been no interference with the use of the road.

From Miller v. Berry, 270 S.W.2d 666 (Mo.App.1954) may be extracted basic principles, supported by numerous authorities there cited, applicable to the acquisition of easements by prescription. They include the statements contained in the following paragraph.

The burden is upon the plaintiffs to show the various elements, “the four essential facts,” by clear and convincing proof. However, in the absence of some showing that the use was permissive in its origin, it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the statutory period, the burden is cast upon the land owner to show that the use was permissive, rather than adverse, if the land owner claims that it was permissive. Mere use of a passage over another’s land for a long time with his knowledge is not necessarily an adverse use and if it is permissive in its inception, such permissive character, being stamped on the use at the outset, will continue of the same nature and no adverse user will arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature. Mere permissive use of land cannot ripen into an easement.

“ ‘[B]ut the use of the land is adverse, as against the owner, if it is not made in subordination to him, is open and notorious and is not wrongful as to him. * * * “Adverse,” under the definition, means that the one making the use “shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance. It is the non-recognition of such authority at the time a use is made which determines whether it is adverse.” ’ Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, 897, 899. See also 25 Am.Jur.2d Easements and Licenses § 51, p. 460; Restatement of the Law of Property, §§ 457, 458.” Benson v. Fekete, 424 S.W.2d 729, 738[2] (Mo. banc 1968). (Emphasis supplied)

Defendant’s evidence, most of which was in direct conflict with plaintiffs’ evidence, was to the effect that the Green Road did not appear on maps printed by the U. S. Geological Service in 1945 and in 1967. At times the Green Road fell into conditions of disrepair. A portion of it (apparently on Segment III) was bulldozed by the defendant in 1968. One of defendant’s witness said that in 1967 the Green Road was impassable by any kind of vehicle. One witness, who had owned defendant’s land from 1928 to 1967, said that he was not aware of the existence of the Green Road, at least Segment III of it. Access to the cemetery had been gained, he said, by use of the Blue Road which intersected the Green Road in Segment II and ran across the northern portion of defendant’s property to the vicinity of the cemetery. This witness said, “I don’t know anything about the green road, nothing at all.” One of defendant’s exhibits described Segment III as having been “built by Camp Zoe in 1968.”

Testimony was elicited from other witnesses for the defendant to the effect that Segment III and Segment IV of the Green Road were non-existent or were little used. However, some of defendant’s witnesses admitted that defendant had bulldozed and graded a portion of Segment III; that Segment III and Segment IV did exist; that the Green Road never became impassable and that it “was always there and from time to time people used it.” One of defendant’s witnesses admitted that he had used the Green Road in 1925 and in the late 1930’s and in the 1940’s. Another defense witness had taught at a school located near Segment III and said that the Green Road was used for access to the school. Another school house was located near Segment V and the Green Road was used to get to it.

The manifest conflicts in the testimony were resolved by the trial court in favor of the plaintiffs and its findings are amply supported by witnesses whom the trial court, unlike this court, was in a position to observe. The trial court found that Segment II and Segment IV constituted “only a small portion of the Green Road” and, as indicated, they were the only segments lying on defendant's land. Although the evidence may have fallen short of showing the Green Road to be “a legally established road” under § 228.190 V.A.M.S., there was testimony that the county had on occasion provided a road grader for use on the Green Road and had installed a “tin horn” on Segment V.

The three prongs of defendant’s contention must now be considered. Although defendant tacitly concedes that plaintiffs’ evidence showed an open, continuous, visible and uninterrupted use of the Green Road for the prescribed period, defendant says “the general rule does not apply to unenclosed rough woods, brush, prairie, or waste land.” Defendant relies on certain cases, including Cook v. Bolin, 296 S.W.2d 181 (Mo.App.1956) and Burnett v. Sladek, 251 S.W.2d 397, 398 (Mo.App.1952). Those cases, and others cited by defendant, are factually distinguishable. The land involved in Cook was described as “wild, unfenced, open woods.” The land in Burnett was described as “wild, rough land . [not used] for [either] cultivation or pasture.”

One authority refers to “an exception to the presumption of prescription where the land in question is rural, wild and uninc-losed. There the theory of mere neighborly accommodation refutes the presumption of adverse use.” Thompson on Real Property (1961 Rep.) Vol. 2, § 350, p. 305. The same authority concedes, on p. 307, that “a prescriptive right-of-way may, however, be acquired over uninclosed and uncultivated land.”

In Moravek v. Ocsody, 456 S.W.2d 619 (Mo.App.1970) it was held that the trial court properly granted plaintiffs a mandatory injunction requiring defendants to remove a gate from across a roadway over defendants’ land and a permanent injunction against obstruction of the roadway by defendants. Defendants asserted that their land in 1937 was “marginal land,” “nine-tenths timber with the rest overgrown with brush and sprouts.” Defendants further asserted that in 1958 only one-seventh of their land was in cultivation. Accordingly, argued defendants, there was a presumption that the travel over their land was initially permissive. At p. 624 the court said:

“There is authority for the proposition that an easement by prescription cannot be acquired over unfenced and unoccupied lands which are parts of vast areas of undeveloped territory. In these instances such use is rarely, if ever, brought to the actual notice of the owner of the land, and because of the nature of the land no presumption of notice of user should arise therefrom. Likewise, if there be actual notice of user and no objection thereto by the owner it would seem the more logical and just to indulge in a presumption that such use was permissive. See Schroer v. Brooks, 204 Mo.App. 567, 224 S.W. 53, 1. c. 56.” However, the court said the principle was not applicable there because defendants’ land was located “in a well settled county, and not part of an extensive, unimproved, uninhabited area.”

In Cramer v. Jenkins, 899 S.W.2d 15 (Mo.1966) the court upheld plaintiff’s claim to an easement of right of way over land owned by the defendant. Defendant argued that plaintiff’s use was permissive because when that use began in 1919, defendant’s land was “in prairie grass, unenclosed, not farmed by the owner and that anyone could cross it at any point.” The court, in rejecting defendant’s argument, said at p. 18:

“Plaintiff also cites such cases as Burnett v. Sladek, Mo.App., 251 S.W.2d 397, discussing ways used through unenclosed lands, especially woodland, only occasionally used and not always by the same route; and George v. Crosno, Mo.App., 254 S.W.2d 30, where the owner kept gates across the way which were opened and shut by users. Even though some of this land was swampy, nevertheless the ground along the drainage ditch appears to have always been a good place for a road and that was its location throughout the entire period. There were visible markings of the roadway and plaintiff worked it ‘with the blade on the back of a Ford tractor.’ Moreover, plaintiff used this way for the statutory period after the land owned by defendant was being cultivated. Furthermore, defendant’s land was not unsettled territory being only about one mile from the town of Dawn and on its west line was the county road between Dawn and Utica.”

Here there can be no doubt that defendant and its predecessors in title, who have been in active possession of Camp Zoe since 1928, had actual notice of the user of the Green Road and had never voiced objection thereto. Permission to use the Green Road had never been solicited, granted, or denied prior to the conduct sought to be enjoined. For over 70 years the Green Road has existed and its location has not changed. Maintenance work has been done on it with county equipment, and even the defendant, although denying through some of its witnesses the existence of Segment III, has worked on that segment.

This court finds that the “wild land” exception, upon which defendant relies, is not factually applicable. Most, if not all, of the testimony with regard to wild lands was elicited from plaintiffs’ witness on cross examination. These witnesses, however, made it clear that their use of the term “wild land,” which was undefined by the questioner, referred to the land on Segment III which, of course, was not on defendant’s land. Segment III was on land owned by Leo Dry who was not a party in this action. Apparently Dry had not interfered with plaintiffs’ use of the Green Road and whether that use, with regard to Segment III, was by express grant, by prescriptive right, or otherwise, does not appear in the record and is not material to the issues in this action.

The record supports the finding that if the land here properly may be described as “wild land” within the meaning of the exception under discussion, it was the land of Leo Dry and not the land of defendant. Moreover, the adjacency to the Green Road of farm homes and buildings, two school houses, a hay field, the cemetery itself, fenced areas, and at least one large cultivated field, coupled with defendant’s own continuous operation of Camp Zoe since 1928 and the extensive use of the Green Road, justify the finding that the general area was sufficiently developed that the “wild land” exception does not come into play.

Finally, it is important to keep in mind the motives of plaintiffs and others similarly situated in using the Green Road. Their purposes included the burying of their dead and the tender and meticulous care of their places of eternal repose. Can it be reasonably argued that such purposes, faithfully executed for so many years without let or hindrance from anyone, were being attained in subordination to an authority on the part of defendants to prevent or to permit their continuance? Anyone embracing such a concept utterly underestimates the devotion of bereft Missourians to the memory of their loved ones and their resolution to insure the proper maintenance of their graves.

Prong (a) has no merit.

In prong (b) defendant argues that “there is some evidence that the user was, initially, permissive.” Then defendant says “there is admittedly little evidence bearing on this point.” A more accurate statement, based on this court’s examination of the transcript, is that there is no evidence that the user was initially permissive.

Next defendant argues “there was an alternative county road leading to and beyond the cemetery at the time the Green Road was first used, and for several years thereafter.” Contrary to defendant’s factual assertion, there was no evidence that the “alternative county road” (referred to in the transcript as the Red Road) existed at the time user of the Green Road commenced. The Red Road was abandoned in the late 1940’s. It approached the cemetery from the south and use of it entailed fording a creek. Moreover, there is authority for the proposition that where a proper user is shown, questions of the necessity of the passway are immaterial, and it is of no consequence that the parties claiming the easement had access to another way, even though it was equally convenient.

Prong (b) has no merit.

What has been said with respect to (a) and (b) undermines some of prong (c). But defendant argues that it “never objected to [plaintiffs] using the Green Road to reach the cemetery.” In support of that assertion defendant refers to the testimony of one of its witnesses concerning a key being left at the store operated by the witness. Indeed the witness, when asked if the key had been left at his store, responded, “I wouldn’t want to swear to that.” There was no evidence that plaintiffs were informed of the key or of its availability.

Self-serving protestations that defendant has no objection to plaintiffs using the Green Road are inconsistent with defendant’s conduct in erecting the gate and locking it. Plaintiffs had acquired an easement by prescription to the unobstructed use of the road and defendant had no right to erect the gaté or to lock it. Huter v. Birk, 510 S.W.2d 177, 183[8] (Mo.1974). There the court quoted with approval this language: “[Ujnder modern conditions the better rule is that which prohibits the ser-vient owner from erecting gates or bars across the road where the owner of the dominant estate has used said road uninterruptedly under an adverse claim of right for [the period of prescription], or more, without gates or bars.” Thus falls prong (c).

Defendant has not questioned the appropriateness of injunctive relief or the language of this specific decree.

The judgment is affirmed.

All concur.

HOGAN, J., disqualified.

      . Defendant’s appellate brief states that plaintiff Mary Lindsey’s “interest in the cemetery is similar to that of the members of’ the corporate plaintiff.

      . The prescribed period is 10 years. Guerin v. Yocum, 506 S.W.2d 46, 47[3] (Mo.App.1974); Speer v. Carr, 429 S.W.2d 266, 268[2] (Mo. 1968).
      Section 516.010 V.A.M.S. is the ten-year statute “for the recovery of any lands, tenements of hereditaments, or for the recovery of the possession thereof.” In Boyce v. Mo. Pac. R. Co., 168 Mo. 583, 68 S.W. 920, 922 (1902) it is said: “[W]hile statutes of limitations do not directly apply to actions in which easements or other incorporeal hereditaments are involved, still by judicial construction an adverse user of an easement for the period specified in the statute, barring action for the recovery of lands, is now by analogy held to be a conclusive judicial presumption of a prescriptive right by a lost grant.”

      . sic

      . See 46 A.L.R.2d 1140, Acquisition by user or prescription of right of way over unenclosed land. See also 170 A.L.R. 776, 820, § VI(b).

      . One of defendant’s witnesses testified: “Mr. Dry’s land was forest land under management, I don’t like the word ’wild.’ ”

      . 28 C.J.S. Easements § 109, p. 802; County of Bonner v. Dyer, 92 Idaho 699, 448 P.2d 986, 989[4] (1968); Marshall v. Winter, 250 S.C. 308, 157 S.E.2d 595, 597[6] (1967); McNeil v. Kennedy, 88 W.Va. 524, 107 S.E. 203, 204[1] (1921); Schroeder v. Moeley, 182 Wis. 484, 196 N.W. 843, 847[5] (1924); Anno. 28 A.L.R.2d § 3, pp. 409, 414.
      In McNeil, 107 S.E. at p. 204, it is said: “ . . . [T]he bill makes no allegations against the absent parties; nothing is alleged against them, if present, upon which to base any relief; they are not alleged to be obstructing the right of way; according to the bill the defendant is doing that, and he for his acts, and not for others, is liable to the injunctive process for invading plaintiffs rights. The fact that said right of way runs through their lands as well as that of defendant, does not make them necessary parties. Plaintiff is seeking not to have a right of way established through anybody’s lands; the bill refers to and alleges a right of way established and existing for more than ten years, appurtenant to plaintiffs land, by prescription and user, which defendant is alleged to be obstructing and in which he is sought to be enjoined.”

      . In view of this court’s holding that the evidence justifies a finding that instant plaintiffs established an easement by prescription, it is unnecessary to decide whether there existed a right to ingress to and egress from the cemetery, a right not dependent upon acquisition by prescription. The curious may consult Jackson, The Law of Cadavers and of Burial and Burial Places, 2d Edition (1950), p. 374, note 78; 14 Am.Jur.2d Cemeteries § 37, p. 744; Scruggs v. Beason, 246 Ala. 405, 20 So.2d 774 (1945); Nelson v. Randolph, 222 Ill. 531, 78 N.E. 914 (1906); Van Buskirk v. Standard Oil Co., 94 N.J.Eq. 686, 121 A. 450, 453[7] (1923); Hines v. State, 126 Term. 1, 149 S.W. 1058, 1059[1] (1911).

      . 28 C.J.S. Easements § 18a, p. 663. See also Jenkins v. German, 298 S.W.2d 486, 491 [7] (Mo.App.1957), where it is said:. “[W]e find no basis for obliterating the prescriptive right already vested merely because plaintiffs have another way available to them. We are not dealing with the right to use an easement of necessity.” “[T]he element of necessity has no role in prescription.” Thompson on Real Property, Vol. 2, § 335, p. 157 (1961).

      . See 52 A.L.R.3d 9 (Fence or Gate Across Right of Way).


author: STONE, Judge.

text:
    Larry Wayne CRAIGMYLE and Judy Carolyn Craigmyle, Plaintiffs-Appellants, v. BORBEIN YOUNG & COMPANY and Richard T. Maxwell, Defendants-Respondents.
    No. 10084.
    Missouri Court of Appeals, Springfield District.
    Feb. 8, 1977.
    Charles C. Shafer, Jr., Kansas City, for plaintiffs-appellants.
    Glenn A. Burkart, Kenneth T. Walter, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendants-respondents.
   STONE, Judge.

This is an appeal by plaintiffs Larry Wayne Craigmyle and Judy Carolyn Craig-myle from the judgment in a jury-tried action to recover for alleged personal injuries and property damage. As shown (a) by the filing stamp of the Circuit Clerk of Greene County on the copy of the notice of appeal mailed to the clerk of this court [Rule 81.07(d) V.A.M.R.] and (b) likewise by the filing stamp on the notice of appeal in the transcript subsequently filed here, the notice of appeal was filed in the office of said circuit clerk on July 11, 1975.

The notice of appeal includes the statement that “[a] motion for new trial was filed March 28,1975, and has not been ruled upon within 90 days and was accordingly denied pursuant to Civil Rule 78.06.” (Emphasis ours) However, the aftertrial motion in the transcript includes a facsimile of the circuit clerk’s filing stamp clearly showing that said motion was filed on March 31, 1975.

Judgment in a civil case challenged by timely aftertrial motion becomes final 90 days after the date of filing of such motion, if it has not been ruled in the meantime. Rule 81.05(a) V.A.M.R. According to instant plaintiffs the benefit of the later filing date of March 31, 1975, as shown in the transcript, the ninetieth calendar day after said filing date was Sunday, June 29,1975. Hence, the permitted period for such filing was extended until the end of the following day, to wit, Monday, June 30, 1975. Rule 44.01(a) V.A.M.R. Since a notice of appeal must be filed “not later then ten days after the judgment or order appealed from becomes final [Rule 81.04 V.A.M.R.]”, the last day for the filing of a notice of appeal in this case was Thursday, July 10, 1975. Accordingly, plaintiffs’ notice of appeal filed on July 11, 1975, was beyond the permitted period and did not invest this court with jurisdiction.

Appellate jurisdiction must be demonstrated by the record on appeal in every case. Our sua sponte examination of the record compels the conclusion that this appeal must be dismissed for want of jurisdiction. Kuhn v. Bunch, 529 S.W.2d 200, 201 (Mo.App.1975). It is so ordered.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Charles BRATTON, Appellant.
    Nos. 37542 and 37543.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Feb. 8, 1977.
    William J. Shaw, Public Defender, David M. Adams, Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul R. Otto, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Charles Bratton has appealed from the judgment of the Circuit Court of St. Louis County denying all relief sought in two consolidated motions filed pursuant to Rule 27.26.

Appellant was charged pursuant to the Second Offender Act, § 556.280 RSMo 1969, with at least two counts of robbery in the first degree by means of a dangerous and deadly weapon. He was found guilty by a jury of both charges and was sentenced by the court on each count to the custody of the Department of Corrections for a term of twenty years, the sentences to be served concurrently. He also entered a plea of guilty to at least two charges of robbery in the first degree with a dangerous and deadly weapon, and was sentenced as to each charge to the custody of the Department of Corrections for a term of twenty years, these sentences to be served concurrently with the previously imposed sentences. We note here that appellant alleged that he received four sentences of twenty years each, in its findings of fact the trial court stated he received five sentences of twenty years each, and in the State’s brief it is asserted that he received three sentences of twenty years each. The record if any, made at the time of the pleas of guilty were made is not before this court. There is what appears to be a transcript of the proceedings in the jury trial, but it does not contain a copy of the indictment or information, the instructions, the verdict, or the judgment. In view of the action we take on this appeal, the record can be and should be made to conform to the facts in the event of another appeal.

In the consolidated motions pursuant to Rule 27.26, appellant purports to challenge the validity of all the sentences, and he alleged numerous grounds for relief, two of which are that (a) he hired one lawyer but another without his consent represented him at the trial, and (b) both lawyers “promised [him] that a motion for a new trial would be filed and an appeal taken,” but that without his consent or knowledge no motion was filed and no appeal was taken. These contentions refer only to the case tried before the jury, and they are the only contentions presented in appellant’s brief to this court. It therefore appears that he has abandoned his challenges to the pleas of guilty.

Appellant testified at the hearing on the two motions that he discussed with the two lawyers whether an appeal should be taken; that one of the lawyers told him that he “was filing a motion for new trial * * * and * * * if it was denied he was filing an appeal;” that he told his lawyer that he wanted to appeal; that the lawyer later told him that the motion for new trial had been filed and was under consideration; and that at a later time the lawyer told him the motion had been denied and that he would file an appeal. He also testified that he never told his lawyers that he did not want to take an appeal. It is admitted that no motion for new trial or notice of appeal was ever filed. Neither lawyer was called as a witness and the State presented no evidence.

In State v. Frey, 441 S.W.2d 11, 15 (Mo.1969), it was recognized that if a defendant desires to appeal his conviction, and his lawyer, without explanation, fails to perfect the appeal “such extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel [is] cognizable on motion to vacate.”

The trial court entered findings of fact and conclusions of law, but it made no findings of fact or conclusions of law pertaining to the contention that contrary to his instructions and without his knowledge no appeal was perfected. It did find that “various allegations as to improper representation of counsel are refuted by [appellant’s] own statement at the time of sentencing that he had no complaint” as to his representation by counsel. But it was subsequent to sentencing that the alleged failure to perfect an appeal occurred, and therefore, this finding did not pertain to the allegations that counsel failed to perfect an appeal.

This case must be remanded to the trial court for findings of fact and conclusions of law on all issues as contemplated by Rule 27.26(i) on the record made, or upon the record as supplemented after proper notice to all parties.

We see no occasion to review this appeal on a piecemeal basis. We defer any ruling on the contention presented in appellant’s brief pertaining to the change of trial counsel until all issues are before us for review.

In the event the trial court finds appellant’s right to appeal to have been improperly infringed, it should be guided in the action to be taken by Jones v. State, 445 S.W.2d 311 (Mo.1969); Green v. State, 451 S.W.2d 82 (Mo.1970), and State v. Frey, supra.

The judgment is reversed and the cause remanded.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: GUNN, Judge.

text:
    Frank G. JAEGER, Petitioner-Respondent, v. Thelma C. JAEGER, Respondent-Appellant.
    No. 37170.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 8, 1977.

      Hanks, Taylor & Suddarth, W. Morris Taylor, Clayton, for respondent-appellant.
    Charles M. M. Shepherd, Clayton, Law Offices of Frank L. Pellegrini, W. T. Wei-dle, Jr., St. Louis, for petitioner-respondent.
   GUNN, Judge.

Petitioner-respondent Frank Jaeger filed a petition for dissolution of his seven year marriage to respondent-appellant Thelma Jaeger. The parties were married in 1968. The marriage was dissolved by court decree, and a division of marital property ordered but with no maintenance to be paid by either party. Thelma Jaeger has taken an appeal from the trial court’s order, contending: 1) that the trial court erred in excluding certain property from the marital estate; 2) alternatively, that if the trial court was correct in determining what constituted marital property, the distribution order was inconsistent with the trial court’s findings of fact and conclusions of law; 3) that the trial court erred in finding that she was not entitled to maintenance. We find that the trial court erroneously treated certain property as Frank Jaeger’s separate property and reverse and remand.

We initially indite the standard of review governing this appeal: we must sustain the trial court’s decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976).

The trial court, after ordering the dissolution of marriage, found as a matter of law that there was approximately $60,000 in marital property to be distributed. The $60,000 was itemized as follows:

1. $38,000 in the equity value of the real property, “i. e. after deducting the $8,500 real property interest contributed by the husband” [from the sale of his previous house] and “the $3,100 real property interest contributed by the wife” [from the sale of her previous house] to the purchase of 5109 Towne Center [the current house] for the present value of said property.
2. “$16,000 in silver bars, gold coins and silver coins.
3. “Approximately $6,000 other monies considered marital property acquired in various forms of household furnishings, securities, etc.”

The court, through a prolix maze of financial data and testimony that would confound an oracle, concluded that neither party’s conduct warranted disproportionate distribution and divided the marital property as follows:

To Mrs. Jaeger — $15,000 to be paid to her by Mr. Jaeger from his own funds; $16,-000 gold and silver in her possession; household furnishings valued at $3,000. To Mr. Jaeger — The parties’ house subject to deed of trust, equity value according to the evidence — $29,415.15.

Mr. Jaeger was also ordered to pay $4,400 in Mrs. Jaeger’s attorney’s fees.

Not included in the trial court’s determination of what constituted marital assets were certain stocks and bonds held by Frank Jaeger at the end of the marriage and his interest in his company’s pension plan. As stated by the trial court: “[t]he court concludes as a matter of law that the stock initially held by petitioner, Frank Jae-ger, that was sold and converted to stock registered in joint names did not constitute marital property because even though acquired during the course of the marriage, it was an exchange.” Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), decided after the trial court’s action, makes the trial court’s conclusion erroneous as applied to the facts of this case. Thelma Jaeger contends that the trial court erred in excluding such stock, bonds and pension plan interest as part of the marital estate. As there are different issues involved in determining whether the stocks and pension plan interest are marital property we treat them separately.

Prior to the marriage, Mr. Jaeger owned various stocks and bonds valued at approximately $104,000. During the course of the seven year marriage, Mr. Jaeger was involved in numerous stock transactions involving both the stocks he possessed prior to the marriage and stocks acquired during the marriage. When the parties separated, Mr. Jaeger had in his possession approximately $87,000 in stocks and bonds. Mrs. Jaeger contends that these assets should have been considered marital property. Mr. Jaeger, on the other hand, claims that those stocks purchased during the marriage were acquired “in exchange” for property he possessed prior to the marriage and therefore are his separate property. The trial court agreed with Mr. Jaeger.

To determine what constitutes marital property and what constitutes the separate property of the parties to the marriage, we turn to the Dissolution of Marriage Act for guidance. Section 452.330.1 instructs the trial court to set apart to each spouse his property and then divide the marital property in such proportions as the court deems just. “Marital property” is defined in § 452.330.2 as “all property acquired by either spouse subsequent to the marriage.” Listed, then, are exceptions to the definition. The exception we are eon-cerned with in this case removes property acquired subsequent to the marriage from the marital estate that was “acquired in exchange for property acquired prior to the marriage.” § 452.330.2(2). Furthermore, § 452.330.3 creates a presumption that property acquired subsequent to the marriage is marital property regardless of the status of the title to this property. The party attacking this presumption has the burden of showing that the property in question falls within the exceptions enumerated in § 452.-330.2. Conrad v. Bowers, supra. Having set out these statutory guidelines, we now endeavor to apply them to the facts of this case.

For purposes of analysis, we place the stocks and bonds in Mr. Jaeger’s possession at the time of separation into three categories: 1) stocks and bonds owned by Mr. Jaeger prior to the marriage and which had been retained solely in his name throughout the marriage; 2) stocks and bonds acquired during the marriage with funds not shown to be derived from Mr. Jaeger’s separate property; 3) and stocks and bonds acquired during the marriage from funds derived from the commingled sale of separate and marital property.

The stocks and bonds in the first grouping do not constitute marital property. They were owned by Mr. Jaeger prior to the marriage (and therefore not acquired subsequent to the marriage), and they retained their identity as Mr. Jaeger’s own property throughout the marriage; these stocks and bonds were properly considered his separate property by the trial court. Conrad v. Bowers, supra. See also Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976), where the court stated: “[A]ll property acquired by a sppuse prior to the marriage and which remains titled in that spouse after marriage is, in the absence of clear intention to contribute that property to the community or to the other spouse, the separate property of that spouse and will not be regarded as marital property.” Id., at 782.

The stocks and bonds falling within the second category, those that were acquired during the marriage with funds not shown to be derived from Mr. Jaeger’s pre-marriage property, must be treated as marital property. As was noted above, property acquired during the marriage is presumed to be marital property. Conrad v. Bowers, supra; In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). The person attempting to overcome this presumption has the burden of showing that the property comes within the exceptions listed in § 452.330.2. There was no evidence in the record that these stocks and bonds were obtained in exchange for stock owned by Mr. Jaeger prior to the marriage. He thus has failed to overcome the statutory presumption that such stocks are marital property. Therefore, the trial court erred in treating these stocks as Mr. Jaeger’s separate property.

The third category of stocks and bonds poses a more difficult problem. We are confronted with the following question: If, during the marriage, a party sells property he owned prior to the marriage and, in addition, sells marital property, and then commingles the proceeds from these sales to purchase new property, is the newly acquired asset marital property or separate property or a mixture of both? We believe that the proper result under the statute is that the newly acquired property so purchased constitutes marital property, irrespective of the state of title of the newly acquired asset. We reach this result relying on the presumption created by the statute that property acquired subsequent to the marriage is marital property. We do not believe that the “exchange” exception found in § 452.330.2(2) is applicable when a person uses both his pre-marriage property and marital property to purchase new property during the marriage. In commingling his own assets with marital assets, the spouse has failed to sufficiently segregate his own property. Such a commingling is indicative of an intent on the part of the owner of the pre-marriage property to contribute it to the marital estate. Thus, the new assets procured from these commingled proceeds must be regarded as marital property. To further clarify our position, we set forth two examples illustrating how stocks now in Mr. Jaeger’s possession were acquired from the sale of both stocks he owned prior to the marriage and stocks that constitute marital property. 1. U.S. Bond: The bond was purchased in 1971 and is still in Mr. Jaeger’s possession. The purchase price was $4,645. In addition to this purchase, several other stocks and bonds were purchased in 1971 at a cost of approximately $17,000. Mr. Jaeger testified that funds used to make these purchases came from the sale of six different stocks. Of these six stocks, three had been owned by Mr. Jaeger prior to the marriage, and the other three were acquired during the marriage. Two of the stocks acquired during the marriage were not shown to have been obtained in exchange for property held by Mr. Jae-ger prior to the marriage and therefore must be considered marital property under the presumption set out in § 452.330.3. (See our discussion of the second category of stock, supra). Therefore, the stocks and bonds purchased in 1971, including the U.S. bond, were obtained through the use of proceeds derived from the sale of pre-mar-riage stock and marital stock and must be regarded as marital assets. 2. Stifel Nicholaus Partnership: This asset was purchased in 1973 along with five other stocks and bonds, all of which are still in Mr. Jaeger’s possession. The money used to make these purchases apparently came from the sale of 15 different stocks and bonds in 1973. While several of the stocks sold had been owned by Mr. Jaeger prior to the marriage, the bulk of the stocks and bonds sold in 1973 had been acquired in 1971. As noted in our first example concerning the U.S. bond, the stocks and bonds purchased in 1971 were marital property. Therefore, the stocks purchased in 1973 were derived from the sale of both Mr. Jaeger’s separate property and marital property and thus must be considered marital property.

We conclude that of the stocks in Mr. Jaeger’s possession at the time of the separation of the parties, only those that he possessed prior to the marriage and which retained their identity throughout the marriage should have been set aside as his separate property. The remaining stock (those falling within the second and third categories listed above) should be included in the marital estate and divided by the trial court pursuant to § 452.330.1.

The Pension Plan

Mrs. Jaeger contends that the increased value of Mr. Jaeger’s interest in his company’s pension that accrued during the years they were married should have been treated as marital property by the trial court. Mr. Jaeger argues that his interest in the plan does not constitute “property” as the term is used in § 452.330. The trial court made no findings of fact or conclusions of law as to the nature of this pension plan. (It is clear from the record, however, that the trial court did not regard Mr. Jae-ger’s interest in the plan as marital property.) The only evidence concerning the characteristics of the pension plan came from Mr. Jaeger’s witness, Weldon Canfield, the personnel director of the company employing Mr. Jaeger. As Mr. Canfield’s testimony concerning the provisions of the plan, particularly Mr. Jaeger’s rights to receive funds prior to the time he reaches the age of retirement, is skimpy and unrevealing, we believe that on remand the parties should be given an opportunity to produce more evidence concerning the nature of the plan and Mr. Jaeger’s rights thereunder. Household Finance Co., Inc. v. Watson, 522 S.W.2d 111 (Mo.App.1975). Rule 84.14. In so doing, the parties should follow the criteria set out in In re Marriage of Powers, supra (in which a husband’s interest in a pension fund was considered marital property) and Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971), (in which the husband’s right to his employer’s contribution to the pension plan was found to be too contingent to be considered by the trial court in making an award of maintenance).

In view of our conclusion regarding the trial court’s treatment of the marital property, we need not delve into Mrs. Jaeger’s second contention which suggests that the trial court’s order of distribution was inconsistent with the findings of fact and conclusions of law.

The issue of maintenance also requires attention. Mrs. Jaeger contends that an arthritic condition prevents her from working and that she is consequently entitled to maintenance; that the trial court’s finding that she was employable was not supported by substantial evidence. Section 452.335.1 permits the award of maintenance to either spouse if the court finds that the spouse seeking maintenance lacks sufficient property to provide reasonable needs and is unable to support himself through appropriate employment. See also In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976). The trial court found, however, that Mrs. Jaeger was employable and her arthritic condition was no deterring factor for her employment. The trial court so found despite Mrs. Jaeger’s protestations that she could not work because of her arthritis. In our review of this point we are well aware of the strictures placed on our review — whether the trial court has abused its considerable discretion in the granting of maintenance awards. Naeger v. Naeger, 542 S.W.2d 344 (Mo.App.1976); Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976).

The record shows that at the time the parties were married Mrs. Jaeger, who had a high school education, was generally in good health and employed as an office manager. Shortly after the marriage, she terminated her employment at the behest of Mr. Jaeger and because she was going to be busy with other matters. She did not work until after the parties separated six years later, and then she was employed in an insurance claims office. Her testimony was that she was forced to leave work after a month, as a rheumatoid arthritic condition caused so much pain that she could not work. She also testified that she was under a physician’s care, had been bedridden and that her general physical condition was a barrier to employment. Mrs. Jaeger’s 20 year old daughter corroborated the mother’s testimony that she had been bedridden with arthritis. There was no substantial evidence to refute Mrs. Jae-ger’s testimony. But we are mindful of the admonition that due regard must be given to the trier of facts to judge the credibility of the witnesses, In re Marriage of Heddy, 535 S.W.2d 276 (Mo.App.1976), even if un-contradicted. Labor Discount Ct. v. State B. & T. Co., 526 S.W.2d 407 (Mo.App.1975). The granting of maintenance is within the sound discretion of the trial court. Naeger v. Naeger, supra. We cannot therefore say that the trial court erred in concluding that Mrs. Jaeger was able to support herself through appropriate employment.

However, with the changed treatment of marital property and in light of the reevaluation of Mrs. Jaeger’s employability status with possible supplemental evidence regarding her ability to work, it is conceivable that the matter of maintenance will be affected. Consequently, we believe that reconsideration of the maintenance issue would be proper, giving effect to § 452.335.-1, and if maintenance awarded, giving effect to § 452.335.2 and the guidelines of In re Marriage of Dodd, supra.

Mrs. Jaeger has cited several cases to support her claim that she should be entitled to maintenance. These cases are not in point, because they involved an affirmance of the trial court’s exercise of discretion in ordering maintenance payments. See In re Marriage of Dodd, supra, and Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975). Mrs. Jaeger's reliance on In re Marriage of Powers, supra, is not persuasive, as that case was not concerned with whether maintenance should be awarded but, rather, what the amount of such award should be.

The cause is reversed and remanded for further proceedings.

KELLY, P. J., and SIMEONE, J., concur.

      . Our review of the record has not disclosed the basis for the $38,000 equity in the real property. The present market value of the real property was placed at $50,000; the purchase price was $35,000. A $10,000 down payment was made and a $25,000 note signed to finance the purchase. At the time of trial, there had been a $4,250.85 total debt reduction, leaving a debt of $20,574.15 owing on the note. Using the $50,000 market value, there would be $29,-425.85 equity in the house. We also observe that Frank Jaeger’s testimony was not that he had contributed $8,500 from the sale of his previous home but that he paid approximately $7,000 from the sale of stocks and $3,000 from the sale of a previous home he had owned with Mrs. Jaeger. There is no indication that Mrs. Jaeger contributed anything on the downpayment, although she did make deed of trust payments of $1,299.75 during the marriage.

      . The trial court found that at the time of trial, Mrs. Jaeger had $9,000 of the original $16,000 in gold and silver in her possession; that it was impossible from the testimony to trace precious metal transactions. The trial court found that at the time of the parties’ separation Mrs. Jaeger took all of the $6,000 in gold and silver and sold much of it. She had invested some of the proceeds in silver, deposited some of the proceeds in various bank accounts and retained some in cash. The court found that the proceeds not reinvested (between $6,000 and $7,000) in addition to other monies she had were sufficient funds to cover Mrs. Jaeger’s living expenses during the separation period to date of trial.

      .Giving effect to what appears to be the evidence of a $29,425.15 equity interest in the house, rather than a $38,000 equity as found by the court, the division of property as apportioned by the court would not be equal, contrary to the court’s expressed intention of distribution.

      . Statutory references are to RSMo Supp.1975 unless otherwise noted.

      . Section 452.330.3 reads as follows:
      “All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.”

      . These stocks are: Airborne Freight; Anheu-ser-Busch; Jefferson Products; Pet, Inc. (preferred); Keystone S-4; and Spence Frank. These stocks amount to approximately $50,000 of the $87,000 in stocks and bonds held by Mr. Jaeger at the time of separation.

      . There are 3 stocks that fall within this category. 1) Dreyfus Fund; this was purchased in 1969, and Mr. Jaeger was unable to state with any certainty where the money came from to make this purchase. 2) Penzoil Offshore Gas; this was purchased, along with several other stocks, in 1970. None of Mr. Jaeger’s pre-mar-riage stocks was sold in 1970, and no attempt was made by Mr. Jaeger to show where the money came from to make these purchases. 3) Trinity Corporation; this was purchased in 1972 and Mr. Jaeger admitted that he could not tell where the money to make this purchase came from. His testimony as to this stock was:
      “Q. But you can’t tell me where the money to buy Trinity came from, can you?
      A. No, I can’t. All I did was retrace all the buys and sells I made, and I did that.”

      .These stocks and bonds are: Eckard (Ward); U.S. bond; Stifel-Nicholaus Partnership; Canadian American Partnership; MSI Data; Scott Paper; Aloha Airlines; Urban Fund; International Investors. (It should be noted that the record is somewhat confusing concerning the “Eckard (Ward)” stock. In his exhibit 3, Mr. Jaeger notes the purchase of this stock and lists it as: “Eckard (Ward).” In his exhibit 2, which lists stocks he possessed at the time of the separation, Mr. Jaeger lists the Eckard stock as: “Eckard, Jack.” This discrepancy is never explained. However, since there is nothing in the record to show that “Eckard (Ward)” has been sold, we conclude that it must still be in Mr. Jaeger’s possession, and we will view “Eckard, Jack” as the same stock.

      . For a list of these stocks and the facts surrounding their acquisition see footnote 7, supra.

      . Mr. Jaeger’s exhibit 3 shows the sale of a U.S. bond in 1974 for $1,662. However, his exhibit 2 which lists stocks and bonds in his possession at the time of separation indicates that he still possesses a U.S. bond valued at $5,000. Since no other U.S. bonds are mentioned in the record, we assume that the bond in his possession at the time of the separation was the bond purchased in 1971.

      . In its conclusions of law, the trial court expressly found that Mrs. Jaeger could support herself through appropriate employment:
      “The Court concludes as a matter of law that the respondent, Thelma Jaeger, is employable, that her arthritic condition would not prevent her from obtaining employment, and that her presently held education, training and experience is sufficient to enable her to find appropriate employment.”

      . See § 452.335 and In re Marriage of Dodd, 532 S.W.2d 885 (Mo.App.1976), for a listing of relevant factors to be considered for maintenance awards.


author: CLEMENS, Presiding Judge.

text:
    Anita L. LEDBETTER, Respondent, v. Clarence O. LEDBETTER, Appellant.
    No. 37591.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 8, 1977.
    Hale W. Brown, and W. Brown, Jr., Kirkwood for appellant.
    Love, Lacks & McMahon, Chester Love and Thomas K. Edelmann, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Dissolution of marriage. On appeal the husband challenges only the trial court’s division of marital property.

The argument section of the husband’s brief is wide-ranging and fails to comply with Rule 84.04(e) by substantially following the order of the points relied on in his brief. We review only matters specifically stated in the points relied on. Pruellage v. De Seaton Corp., 380 S.W.2d 403[3-4] (Mo.1964); Nutz v. Shephard, 490 S.W.2d 366[11—14] (Mo.App.1973).

The trial ,court found the parties’ 22-year marriage to be irretrievably broken, decreed it dissolved and divided the marital property, concededly in almost equal shares:

To the wife:
1. Roosevelt Fed’l Dep. $23,442.24
2. U. S. Savings Bond 500.00
To the husband:
1. St. Louis Fed’l Savings & Loan Dep. $40,478.50
2. Mo. Savings Dep. Bal. 10,148.60
3. Prudential Policy 600.00
4. Real Est. & Impr’ment 45,000.00
5. Cash, Missouri Savings 3,500.00
6. One-half interest, wife’s profit sharing fund 26,893.95
Total $99,936.16
3. Money Market Management Account 13,771.60
4. Life Ins. policies 5,160.00
5. Camping trailer 3,200.00
6. One-half interest, wife’s
profit S.P. 26,893.95
Total $99,652.65

The husband’s two-pronged point relied on: Error in failing to give him credit for $15,000 he received from sale of a residence he had acquired before the marriage and applied toward the purchase of the family residence, and error in equally dividing the wife’s pension fund payable upon her retirement. These sub-points in turn.

At the time of marriage the husband owned a residence which he sold for $15,000 and applied that sum to the purchase of the parties’ home, taking title in both parties as tenants by the entirety. He contends the home, to the extent of his $15,000 contribution, is not marital property. His only pertinent citation is Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), which refutes his contention. It holds at l.c. 624, “all property acquired by either spouse subsequent to the marriage and prior to a decree of separation and placed in the joint names of husband and wife is presumed to be marital property unless the presumption is overcome by showing (a) that the property was acquired in exchange for property acquired prior to the marriage and (b) it is shown by clear and convincing evidence that it was not intended as a provision for, or a settlement in favor of, or a gift to the other spouse.” There was no evidence negating the presumption of a gift, so we conclude the trial court properly considered the parties’ home as marital property despite the husband’s partial contribution to its purchase price.

The husband’s other challenge is to the equal division of the wife’s profit sharing plan. It was worth $53,878 and was payable to her upon either voluntary or compulsory retirement eleven years hence. The husband, citing In re Marriage of Powers, 527 S.W.2d 949[16] (Mo.App.1975), concedes that this fund, not being subject to divestment, is marital property. He argues, however, that the division decreed compels him to wait, perhaps eleven years, for his wife to retire. To avoid this delay he suggests the entire pension fund should have been awarded to the wife and equivalent assets, say the savings and loan accounts, be deducted from her share of marital property and awarded to him.

The decree gave the wife the family home and a substantial amount of liquid assets. The effect of the division suggested by the husband would be to award him substantially all the parties’ liquid assets and award the wife substantially all the non-liquid assets. Section 452.330 1., VAMS, provides that the division of property be just, considering “the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home . . . .” We hold the decree justly divided the parties’ liquid assets, and that the delay in liquidating the wife’s pension fund is as burdensome on her as it is on her husband. We find the decreed division of marital property did not violate the cited statute.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Albert Melvin SMITH, Defendant-Appellant.
    No. 38010.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 8, 1977.
    Robert C. Babione, Blair K. Drazic, Walter H. Sheata, Mary Louise Moran, St. Louis, for defendant-appellant.
    John Ashcroft, Preston Dean, W. Mitchell Elliott, Jefferson City, George A. Peach, St. Louis, for plaintiff-respondent.
   DOWD, Judge.

A jury convicted defendant of robbery in the first degree, Section 560.120 RSMo 1969. The court sentenced him to ten years imprisonment. Defendant appeals.

The defendant does not challenge the sufficiency of the evidence, and the facts may be briefly stated. Two men robbed a service station after one asked an employee of the station, Searcy Marshall, how much Marshall would charge to let them rob him. The man who spoke wore overalls, a green sweatshirt with short sleeves, and gold-framed eyeglasses and had a tape wrapped around his left wrist. He appeared to carry a sawed-off shotgun under his sweatshirt. The men took $40 in bills, a coin changer, and a radio from the gas station and fled. The police pursued the man in overalls into a vacant house where they found a discarded green sweatshirt and a loaded shotgun. The defendant was later apprehended wearing overalls and a white undershirt. His left wrist was wrapped in a white band. Mr. Marshall identified defendant as one of the robbers.

The sole point of appeal is that “the repetition by the assistant circuit attorney, in his closing argument, of the fact that defense counsel had asked witness Searcy about only selective portions of his preliminary hearing testimony was plain error because the comment was made after a sustained objection and instruction to disregard a prior similar comment.” Appellant’s reply brief clarifies his position. There he states that his primary contention is that the prosecutor committed the “plain error,” but he argues in the alternative that the trial court erred in failing to grant a mistrial sua sponte after the prosecutor’s comment.

Plain error relief under Rule 27.20(c) will not be granted unless the alleged error is “determined to have had a decisive effect on the jury or to have resulted in a manifest injustice or miscarriage of justice.” State v. Collins, 520 S.W.2d 155, 157[4] (Mo.App.1975).

Because the trial court sustained defendant’s objections to the prosecutor’s comments and ordered the jury to disregard all such statements by the prosecutor, we believe that the prosecutor’s comments did not have a decisively prejudicial effect upon the jury. The trial court views the allegedly improper incident and is in a better position to judge any prejudicial effect on the jury. State v. Haynes, 455 S.W.2d 504, 505 (Mo.1970). In the case at bar, the trial court determined that any prejudicial effect could be cured by sustaining defense counsel’s objections and instructing the jury to disregard the prosecutor’s comments. The trial court was within its discretion in finding that this immediate curative action dispelled any prejudice. State v. Masoner, 525 S.W.2d 441, 442 (Mo.App.1975).

In addition, overwhelming evidence of defendant’s guilt was adduced at trial, including a positive, in-court identification of defendant by witness Marshall. In the face of such overwhelming evidence of guilt, the plain error rule will not be invoked. State v. Hurtt, 509 S.W.2d 14, 15[3] (Mo.1974); State v. Hill, 539 S.W.2d 521, 530[23] (Mo.App.1976). The prosecutor’s comments did not constitute plain error.

Finally, we do not believe the trial court erred in not declaring a mistrial sua sponte.

Whether closing argument by counsel necessitates declaration of a mistrial is within the trial court’s discretion. State v. Hunter, 499 S.W.2d 787, 788[3] (Mo.1973). A mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where prejudice can be removed in no other way. If prejudice is removed in another way, a mistrial need not be granted. State v. Neal, 526 S.W.2d 898, 903[10-13] (Mo.App.1975). Here any prejudice was cured when the court sustained the defense counsel’s objection and ordered the jury to disregard the prosecutor’s statements. We find there was no abuse of discretion in failing to sua sponte grant a mistrial. “[T]he proper exercise of discretion can never result in plain error within the meaning of Rule 27.20(c).” State v. Brauch, 529 S.W.2d 926, 931[9] (Mo. App.1975).

The judgment below is affirmed.

CLEMENS, P. J., and WEIER, J., concur.


text:
    STATE of Missouri, Respondent, v. Charles H. BROWN, Appellant.
    No. 37983.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 8, 1977.

      Daniel V. O’Brien, Michael J. Puricelli, St. Louis, for defendant-appellant.
    John Ashcroft, Preston Dean, William F. Arnet, Jefferson City, George A. Peach, Thomas M. Daly, St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Appellant was charged with two counts of leaving the scene of an accident, § 564.-450 RSMo 1969. Count I charged appellant with leaving the scene of an accident with Mark Johnson. Count II charged appellant with leaving the scene of an accident with Dale Wishard. A jury found appellant guilty upon both counts. Appellant was sentenced to concurrent 6 month terms. On appeal, appellant argues that the trial court erred in not compelling a state witness to testify and that the trial court erred in permitting appellant’s conviction upon two counts.

On the evening of January 18, 1975, four newspaper boys were walking north in single-file along South Vandeventer in the City of St. Louis. They were returning unsold newspapers to the paper branch and were walking near the left curb in the street, pushing newspaper carts. As the boys approached the Vandeventer-Tower Grove Avenue intersection, a south-bound automobile struck the last two boys in the line, Mark Johnson and Dale Wishard. The boys sustained minor injuries. The driver of the red Mustang which hit the boys did not stop but continued south along Vande-venter.

Michele Manzio was driving the car behind the red Mustang and observed the accident. She followed the Mustang until it stopped in a parking lot and then spoke to the driver. She informed the tall, blond, muscular man who was driving the Mustang that she would give his license number to the police if the driver did not return to the scene of the accident. The driver said he would return, but he did not go back.

Ms. Manzio reported the Mustang’s license number to the police. The license was issued to Mike Mitchell. Mitchell appeared in a line-up before Ms. Manzio but was not identified by her.

The police later located and seized the red Mustang from a service station parking lot. The next day, an employee of the service station called the police and told them that a man fitting the description given by the police was at a coffee shop across the street from the service station. The police went to the coffee shop, encountered the appellant, and arrested him.

Ms. Manzio identified appellant as the driver of the red Mustang. Appellant testified that he and Mitchell worked together at the service station and that they had bought and repaired the red Mustang. He denied that he had been involved in an accident on January 18, 1975.

Appellant’s first point on appeal is that the trial court violated his Sixth Amendment right to confront witnesses in permitting a witness, Charles Michael Mitchell, to refuse to testify on the ground that his testimony might tend to incriminate him. Witness Mitchell appeared at trial but refused, on Fifth Amendment grounds, to give any testimony other than his name and address. Appellant argues that his Sixth Amendment right of confrontation was superior to Mitchell’s Fifth Amendment rights in this case and that Mitchell should have been compelled to give testimony. We do not agree that appellant’s Sixth Amendment rights were violated.

Mitchell gave no testimony at trial other than his name and address. Thus, Mitchell gave no evidence against the appellant at trial. A criminal defendant has no right to confront a “witness” who gives no evidence at trial. United States v. Heck, 499 F.2d 778, 789 n.9 (9th Cir. 1974); United States ex rel. Meadows v. State of New York, 426 F.2d 1176, 1184[15] (2d Cir. 1970); Shuler v. Wainwright, 491 F.2d 1213, 1224[13] (5th Cir. 1974). The test of whether a defendant’s Sixth Amendment right has been violated is whether the defendant has been deprived of his right to test the truth of the witness’ direct testimony. United States v. Rogers, 475 F.2d 821, 827[10] (7th Cir. 1973).

The Sixth Amendment right of confrontation ensures that the trustworthiness of evidence actually disclosed at trial will be tested by effective cross-examination and by personal observation of the witness providing the evidence. United States ex rel. Meadows v. State of New York, supra at 1184[14]. In the case at bar, witness Mitchell gave no direct testimony that required an assurance of trustworthiness. No right of confrontation was lost in permitting the witness to refuse to testify.

Appellant’s second point on appeal is that his conviction upon Count II placed him twice in jeopardy for the same offense alleged in Count I. We disagree.

The state cannot split a single crime and prosecute it in parts. State v. Richardson, 460 S.W.2d 537, 539[1] (Mo. banc 1970); State v. Collett, 526 S.W.2d 920, 933[15] (Mo.App. 1975). However, several distinct offenses may be committed in the course of the same general transaction. State v. Turner, Jr., 543 S.W.2d 270, 273[6] (Mo.App. 1976). The fact that two crimes occur at substantially the same time or that substantially the same evidence must be shown to prove both crimes does not require the state to present only one charge. The important question is whether two crimes occurred. State v. Cabell, 539 S.W.2d 584, 586-7 (Mo.App. 1976).

We believe that appellant was properly charged upon two counts of leaving the scene of an accident because appellant was involved in two separate accidents and, in neither instance, did appellant stop and provide the information required by Section 564.450 RSMo 1969. One accident occurred when appellant’s automobile struck Mark Johnson’s newscart, driving the cart into Mark Johnson and thereby injuring him. A second accident occurred when appellant’s vehicle struck and injured Dale Wishard. Each impact constituted an accident.

The case at bar does not present the situation found in State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467 (1949), upon which appellant has relied. In State v. Dougherty, the defendant left the scene of an accident after he struck a taxicab causing property damage and personal injuries to the driver of the taxicab and the passenger. The court noted that a single offense had been committed even though more than one person was injured. State v. Dougherty, supra at 471[3, 4]. We believe that one impact is one accident, regardless of the number of people injured. However, multiple impacts give rise to multiple accidents.

The trial court committed no error, and the judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.