author: SNYDER, Presiding Judge.

text:
    Georgene W. LoPICCOLO, Petitioner-Appellant, v. Vincent James LoPICCOLO, Respondent-Respondent.
    Nos. 39483, 39576.
    Missouri Court of Appeals, Eastern District, Division 1.
    April 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Gentry, Bryant & Hereford, Stephen M. Hereford, Clayton, for petitioner-appellant.
    Vincent J. LoPiccolo, pro se.
   SNYDER, Presiding Judge.

Both parties appeal from an order modifying a dissolution decree. For clarity, the parties will be referred to in their original roles as Petitioner (wife) and Respondent (husband).

Both parties contend the trial court erred in its judgments respecting maintenance, attorneys’ fees and a Prudential life insurance policy. Respondent also claims error in the trial court’s refusal to reduce child support payments. The judgment is affirmed.

The marriage of the parties was dissolved in March 1975 after approximately 16 years of marriage and the birth of five children. The opinion in the appeal following the decree is reported as LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977). Petitioner, who was 38 at the time of the dissolution hearing and who had not worked during the marriage, was awarded $4,000 per year maintenance, a total of $940 per month child support and about one-half the marital property. Respondent, a physician, was awarded a corresponding share of the marital property.

Respondent became dissatisfied with his obligation under the decree and filed his Motion to Modify on March 11, 1977, seeking a reduction in child support and elimination of maintenance. Petitioner responded with her own Motion to Modify, requesting increases in both payments.

At the modification hearing, evidence was adduced to the effect that Respondent’s net income had decreased since the original hearing by about $15,000 per year, due to health problems. At the same time, Petitioner’s income had increased from nothing to a minimum of $7,200 per year gross, plus commissions.

Although Petitioner testified that her current total expenses were about double the amount she had estimated at the original dissolution hearing, evidence was presented supporting a finding that her then current income approximated the difference between her total reasonable needs and the amounts she received from Respondent in the form of child support. Nothing was preserved in the record as to Respondent’s current level of expenses or reasonable needs.

Thereafter, the trial court entered its order finding that the Petitioner was “meeting her reasonable needs through employment,” terminating maintenance as to the future but ordering Respondent to pay the full $4,000 annual installment for the period March 14,1976 to March 13,1977, awarding Petitioner $1,500 in attorneys’ fees against her total claim of $5,370, awarding a $5,000 insurance policy on Respondent’s life to Petitioner, and denying Respondent’s request for a child support reduction. Respondent’s motion to consolidate the respective appeals was granted.

In her first point, Petitioner contends that the trial court erred in terminating maintenance in accordance with Respondent’s motion to modify, rather than granting the increase she requested in her counter-motion. This actually presents two questions for review, but resolution of the former, being adverse to her, is necessarily dispositive of the latter.

Petitioner argues that the trial court improperly applied the standards set out in § 452.335.1 in arriving at its determination, rather than those of § 452.370, and that application of § 452.370 to the facts would require a different result. Section 452.370 governing support and maintenance modifications, requires a finding that there has been a substantial and continuing change in conditions rendering the terms of the dissolution decree unreasonable prior to any modifications. Petitioner’s objection is based on the fact that, although the trial court specifically found that “Petitioner is meeting her reasonable needs through employment” (one of the criteria set out in § 452.335.1 authorizing a denial of maintenance in original dissolution proceedings), it made no findings couched in the terms set out in § 452.370.

Petitioner is correct in pointing out that the criteria of § 452.335.1 are not properly applied in modification proceedings for the purpose of determining whether a modification is warranted. Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976). This is because original determinations in disso-lutions are res judicata until a modification movant has carried the burden of showing changed circumstances as required by § 452.370. Seelig, supra, 147. However, the case at bar is distinguishable from Seel-ig in that the evidence here supports a finding of substantial and continuing change in the circumstances of both parties.

Specifically, there was evidence that Respondent’s net annual income decreased by about $15,000 between 1974 and 1976, while Petitioner’s net earnings rose to a level at which they approximated the difference between her total expenses and the child support she receives. The changes are continuing in nature because Respondent’s decline in income was due largely to health problems, and he has found it necessary to bring in another physician to assist him in his practice. Petitioner’s earnings have increased substantially since the decree of dissolution and she will continue to work. The foregoing meets the requirements of § 452.370, as interpreted by Seelig, supra, requiring that something more than a mere decrease in the obligor spouse’s income be shown. Consequently, the trial court’s application of the language contained in § 452.335 did not prejudice the Petitioner.

Petitioner then advances several additional arguments against the termination of maintenance. She says the trial court ignored the effects of inflation, speculated on her future income and failed to consider her reasonable needs. After a thorough review of the record and giving due consideration to the applicable standard of review, this court finds that the trial court did not err in terminating the maintenance award. The decision to terminate was supported by substantial evidence, was not against the weight of the evidence and did not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

Respondent, however, wants more. He claims the trial court erred in ordering him to pay the annual $4,000 installment which was due March 13, 1977 for the preceding year under the terms of the original decree. His contention is without merit.

Respondent’s motion to modify was filed on March 11,1977, two days before the payment for the prior year was due. Three hundred and sixty-three days of the period had already passed. Moreover, the evidence supports a finding that Petitioner continued to have a substantial variance between her total resources (exclusive of maintenance) and her expenses during the period from March 14, 1976 to March 13, 1977, whereas Respondent enjoyed a disposable income of $23,000 after taxes, child support, insurance and tuition payments. Applying the customary standards in Murphy, supra, there was no error in the trial court’s refusal to modify the 1976-1977 maintenance installment.

Both parties attack the award of $1,500 in attorneys’ fees to Petitioner. Petitioner asserts that her entire $5,370 claim should have been awarded, whereas Respondent contends that there should be no award.

The trial court specifically found that Petitioner was entitled to be compensated for defending the motion brought by her former spouse; but because her counter-motion to modify was without merit, the court allocated no fees for its prosecution. Petitioner objects on the basis that her motion was not without merit, and alternatively that there was no evidence to support the court’s breakdown and allocation of $1,500 to the defense of Respondent’s motion.

Section 452.355 directs the court to “consider all relevant factors including financial resources of the parties” in awarding attorneys’ fees. This has been held to grant wide discretion to the trial court, and appellate courts should not interfere with such awards absent a clear showing of abuse. In re Marriage of Frankel, 550 S.W.2d 896 (Mo.App.1977).

As for Petitioner’s first ground of objection, the record supports the trial court’s finding that her motion was without merit. The only significant changes in circumstances that had occurred at the time she brought her motion were uniformly in her former spouse’s favor, and it is hardly conceivable that she had any realistic expectation of carrying the burden set by § 452.370. The trial court was within its discretion in considering the lack of merit of her motion as one factor bearing on the award of fees under § 452.355. Hawkins v. Hawkins, 250 S.W.2d 817 (Mo.App.1952).

Petitioner also argues that the allocation of $1,500 for defense is unsupported by any evidence. In Missouri, courts are not bound by counsel’s testimony as to the value of services rendered. Knauss v. Knauss, 425 S.W.2d 713 (Mo.App.1968). Courts, being themselves experts on the issue of attorneys’ fees, need have no evidence adduced on the subject to enable them to fix a fee award. Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

Respondent, on the other hand, contends that the award of any fees whatever was error because Petitioner could better afford the expense, citing evidence that his liquid assets were exhausted. Respondent’s authority for this proposition, In re Marriage of Frankel, supra, however, deals with the exhaustion of all assets. Respondent’s own evidence indicates he owns stocks, furniture, retirement and pension plans, automobiles and receivables totaling approximately $55,600 in value. Evidence touching Petitioner’s assets indicates a total value considerably less than those of Respondent. Neither party has demonstrated an abuse of discretion under § 452.355. There was no error in the trial court’s award of attorneys’ fees.

Petitioner’s final point concerns the $5,000 face value insurance policy on Respondent’s life which was awarded her in the original decree of dissolution. She asks that it be transferred to her unencumbered by a loan obtained by Respondent. The policy, with a cash value of $1,300 was never turned over to her. Respondent admitted borrowing $700 on the policy, thereby effectively reducing its cash value by that sum. The loan was obtained after the modification hearing started on June 2, 1977 and before the hearing resumed on June 23, 1977.

Respondent may not unilaterally accomplish a property distribution modification by encumbering the cash value of an insurance policy awarded to his former wife before turning it over to her. This court in its decision on the appeal in the dissolution proceeding affirmed the award to Petitioner of the life policy with a cash value of $1,300. LoPiccolo, supra. Petitioner is entitled to the policy and the full $1,300 cash value 'unencumbered by loans, pledges or assignments. § 452.330.4.

In its modification order, the trial court again found that the policy was the property of the Petitioner but said nothing about the loan or the reduction in cash value. However, the trial court’s modification order pertaining to the insurance policy was superfluous. The original award made in the dissolution decree as affirmed on appeal remained in effect. Respondent must comply with it by restoring the policy to its full value and transferring the policy to Petitioner. Should Respondent fall short of compliance, Petitioner is entitled to the aid of execution or other appropriate legal processes to enforce the judgment.

Respondent also objects to the modification order as it affects the insurance policy. He argues that the policy was not marital property subject to distribution in the first instance. In answer, it is sufficient to note that the issue is res judicata, having been determined against him in the dissolution proceeding, and may not be raised at this time.

Similarly, Respondent’s argument that the original decree suffered from confusion in the language awarding the policy, is also to no avail. The original decree as affirmed on appeal specifically awarded the policy with a $1,300 cash value to the Petitioner. It is too late to attack that judgment in this proceeding.

Respondent further complains that the trial court erred in failing to reduce child support, arguing that Petitioner could afford to make up a $200 per month deficit if his payments were reduced by that sum. Respondent evidently contemplates continued payments by himself at the existing rate, but desires to have the sum of $200 set aside each month in an educational trust.

Although his purpose is admirable, Respondent advances no legally cognizable reason for finding the trial court’s action erroneous. A movant seeking child support modification must show the usual changes in circumstances under § 452.370. Here, although Respondent’s income had declined, there was no corresponding showing of a change in the children’s needs, of an increased ability of the Petitioner to contribute to their support, or of hardship on the Respondent sufficient to render the order below reversible under the standards of Murphy, supra.

Respondent’s final point is that “the Appeals Court was forced to make their decision based on incomplete and inaccurate testimony from Appellant.” This statement does not comply with Rule 84.-04(d) in that it identifies no action or ruling by the trial court that is allegedly erroneous. Thummel v. King, 570 S.W.2d 679 (Mo.banc 1978). The point will not be discussed except to note that the issue it apparently seeks to raise pertains to matters which were before this court in the parties’ first appeals and which, therefore, cannot be considered in this appeal of the modification order.

The judgment of the trial court is affirmed.

WEIER, C. J., and SMITH, J., concur.

      . All statutory references are to RSMo Cum. Supp.1975.

      . This is not to imply that the criteria of § 452.335 may not be resorted to for guidance in redetermining eligibility for maintenance once the modifícation movant has satisfied the requirements of § 452.370.

      . Respondent argues that his expenses approximately equaled his income at the time, and refers us to his “Exhibit # 7,” apparently an income and expense statement. The record as certified to us contains no such exhibit, and we therefore presume that the contents thereof support the trial court’s determination. Bryan v. Bryan, 452 S.W.2d 293, 295 (Mo.App.1970).


source: Caselaw Access Project

license: Public Domain

text:
    In re the MARRIAGE OF Rosenel STRELOW, as known as Rosenel H. Bequette, Petitioner, Respondent-Appellant, and Kenneth R. Strelow, Respondent, Appellant-Respondent.
    Nos. 39557, 39569.
    Missouri Court of Appeals, Eastern District, Division One.
    April 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Nicholas E. Gasaway, Florissant, for Ro-senel Strelow, petitioner, respondent-appellant.
    Margaret M. Nolan, Ann Q. Niederlander and Lloyd E. Eaker by Lloyd E. Eaker, Clayton, for Kenneth Strelow, respondent, appellant-respondent.
   SNYDER, Presiding Judge.

Cross appeals were filed on the division of marital property in this dissolution of marriage action. The specific issue is whether the trial court erred in awarding the husband-respondent $6,500 in cash to equalize the property division. Predictably, the husband (Kenneth) claims the award of $6,500 is insufficient, while the wife (Rosenel) asserts it is excessive.

The trial court’s judgment is modified and as modified, affirmed.

The parties were married in October of 1973 and separated in December of 1976. Apart from personal items and home furnishings, each brought certain assets to the marriage. Kenneth owned Jan Barry Cleaners (a dry cleaning establishment) and possessed two leased automobiles. The trial court found the value of the assets he contributed to be about $2,000.

Rosenel owned three parcels of property: (1) a house and lot at 9429 Tudor, net value $6,000; (2) a house and lot at 2907 Hilleman Avenue, net value $7,000; and (3) a house and lot at 3324 Calvert Avenue, net value $15,000. The Tudor and Calvert properties were rented before and during the marriage. At the time of trial, the Tudor property rent was $140 per month. In the years 1973-1976, it generated $5,600 in rental income. The Calvert property rented for $315 per month at the time of trial and produced $11,600 in rental income in the years 1973-1976.

Rosenel also owned a 1965 Comet automobile, valued at $300 and had $386 in her savings account. The trial court found she contributed to the marriage assets worth $28,700. As can readily be seen, there was substantial difference in the value of the parties’ contributions at the outset of the marriage.

On the day following their marriage, Ro-senel and Kenneth purchased a house at 4202 McKibbon Road, in Breckenridge Hills, for $34,500. Kenneth put down $500 earnest money. A note for $5,000 of the $6,784 down payment was signed by the parties and secured by the property at 2907 Hille-man. The remainder of the down payment came from Rosenel’s savings and from the parties’ joint checking account. Mortgage payments were made during the course of the marriage. Rooms of this house were also rented for $240 per month. At the time of trial, the rent received from the Tudor, Calvert and McKibbon properties totaled $695 per month. (The Hilleman property was sold in August 1974.)

Rosenel was steadily employed throughout the marriage. Kenneth held several different jobs and was sometimes unemployed. Their individual total incomes from wages during the course of the marriage (including Kenneth’s unemployment compensation) were approximately equal: $19,-661 for Rosenel and $19,960 for Kenneth.

Losses from the dry cleaning business and bad investments, however, off-set the rental income and wages. In the years 1973 through 1976, their investments and business enterprises lost nearly $43,000 which the trial court, in its findings of fact, attributed to Kenneth.

After making detailed findings of fact and conclusions of law, the trial court divided the parties’ marital property in the following manner:

1. Real property located at:
a. 9429 Tudor $ 6,300 ($10,000 less $3,700 lien)
b. 3324 and 3324-A Calvert 15,000
c. 4202 McKibbon 10,500 ($36,500 less $26,000 mortgage)
2. 1975 Cadillac 2,000 ($6,200 less $4,200 lien)
Total net value $33,800
To Kenneth Value Found bv Court
1. Morgan’s Arnold Palmer’s Cleaners $ 6,500
2. Bear Enterprises, a business unvalued
3. 1977 Ford Van 1,000
4. $6,500 cash from Rosenel 6.500
Total net value $14,000

The $6,500 cash award amounted to a transfer of funds instead of an additional sum. It should not be added twice in computing the total value of the marital property. Thus, the total net value of the parties’ marital property is $41,300 and not $47,800. Rosenel really received $27,300 and Kenneth received $14,000.

Kenneth has filed a motion to dismiss Rosenel’s appeal because, in his view, her brief fails to comply with Rules 84.04(c) and (d). Rosenel’s statement of facts, although not a model of fairness, conciseness and relevancy, is more than adequate to aid the court in consideration of the issues raised and presented on appeal. There was no attempt on counsel’s part to distort or misrepresent the facts of the case. See French v. Tri-Continental Leasing Co., 545 S.W.2d 345 (Mo.App.1976).

Two of Rosenel’s Points Relied On do violate Rule 84.04(d), in that they merely state abstract principles of law without any indication of what ruling of the trial court is to be reviewed or wherein and why the trial court erred. These points will not be considered on appeal. Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Rosenel’s claim of error in the division of the marital property is adequately stated and will be discussed along with Kenneth’s complaint that he received too little in the trial court’s award.

Court-tried cases are reviewed upon both the law and the evidence under Rule 73.01, with due regard given to the trial court’s opportunity to judge the credibility of the witnesses. In re Marriage of Carmack, 550 S.W.2d 815, 817 (Mo.App.1977); LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo. App.1977). Under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the trial court’s judgment is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Carmack, supra; Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976).

Two other basic rules govern an appellate court’s review of an order distributing marital property. The first of these is that § 452.330 (RSMo Cum. Supp.1975) does not require an equal division of the marital property. The statute’s emphasis, instead, is on a division which is just, fair and equitable under the particular circumstances of the parties. The standard for dividing marital property is flexible; there is no pat mathematical formula or method of division which assures a just distribution.

The second rule, a necessary corollary to the first, is that the trial court is vested with considerable discretion in dividing the marital property; “appellate courts will neither scour and nit-pick the record for accounting error nor second-guess the trial court’s balance of the equities . . . .” In re Marriage of Schulte, 546 S.W.2d 41, 47 (Mo.App.1977). Before an appellate court will disturb the trial court’s division under § 452.330, “it should appear from the record that the trial court erred or abused its discretion in decreeing the division [Citing cases] . . . .” Hilger v. Hilger, 570 S.W.2d 736, 740 (Mo.App.1978).

The parties do not challenge the trial court’s finding that the Tudor, Calvert and McKibbon properties are marital property. Nor could they, because in June of 1974 Rosenel executed a quit-claim deed by which, for consideration of $1.00, she conveyed the Tudor, Calvert and Hilleman properties, from her name alone, into a joint tenancy with Kenneth. The McKibbon property was acquired subsequent to the marriage and was entitled in both parties’ names. § 452.330.3.

Nor do the parties dispute the trial court’s authority to order a cash award to one party to achieve a just division when the other spouse receives property not divisible in kind. See, Snider v. Snider, 570 S.W.2d 770 (Mo.App.1978); Gross v. Gross, 557 S.W.2d 448 (Mo.App.1977); Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975). Instead, the issue they both raise is whether $6,500 was the proper amount needed to achieve a just distribution. Consideration of the four factors set out in § 452.330 indicates the trial court abused its discretion in setting the cash award at $6,500.

Section 452.330.1 lists four nonexclusive factors to be considered by the trial court in its just division of the marital property: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker; (2) the value of the property set off to each spouse; (3) the economic circumstances of the parties at the time the division is to become effective; and (4) the conduct of the parties during the marriage.

One of the most important factors in this case, lending support to an unequal distribution, is the contribution of each spouse to the acquisition of the marital property. As noted before, Rosenel contributed assets worth $28,700 to the marriage. Kenneth brought only about $2,000. Rosenel had owned the Tudor property since 1947; she had purchased the Calvert property in 1966 and the Hilleman property in 1969. She thus had made substantial payments on the mortgages before the marriage. The parties made disproportionate initial contributions to the marriage and those unequal contributions must be reflected in an unequal division of the marital property.

The parties’ contributions during the marriage were more equal. Both parties worked and earned approximately equal amounts. Although Rosenel’s wages frequently went to make all or part of the mortgage payments on the Tudor and Calvert properties, that merely freed Kenneth’s for daily and household expenses. The source of the McKibbon mortgage payments is not clear, but apparently they were made from joint funds. The trial court made no finding as to the parties’ individual contributions in paying off this loan. Kenneth did suffer losses in his business ventures, but Rosenel also lost $5,000 on a bad investment. Both parties worked to repair the rental properties and to improve their home. Kenneth frequently collected the rents. Repairs valued at $1,650 were made to the Calvert property. The trial court found Kenneth and Rosenel had jointly made those repairs. The trial court also found repairs and improvements had been made to the McKibbon property, increasing its value by $1,500. Kenneth and Rosenel undertook the repairs together, while Kenneth did most of the work on the improvements. For his part in these repairs and improvements Kenneth should be awarded $1,825 ($825 for Calvert and $1,000 for his greater contribution to the improvements at McKibbon).

As to the second factor, no separate property of substantial value was awarded to either party. The award lists no bank accounts, stocks, bonds or insurance. Rose-nel’s property was income-producing, generating nearly $700 per month. Kenneth received a going business, the profitability of which is not established.

The parties’ economic circumstances were also unequal. Kenneth is eight years younger than Rosenel. Although their wages were approximately equal during the marriage, Kenneth was able to earn that amount while being unemployed at different times, thus raising a reasonable inference that he had greater potential earning power. The fact that Kenneth was unemployed at the time of the trial was entitled to little weight since he had been unemployed before and was healthy, able to work and employable.

The final factor listed under § 452.330.1 is the conduct of the parties during the marriage. This consideration strongly favors Rosenel. The trial court found Kenneth was guilty of marital misconduct with another woman. Kenneth challenges this finding, but it was supported by evidence which this court declines to recount.

Kenneth’s misconduct in the parties’ financial dealings should have been of much greater importance to the property division. Kenneth purchased or leased thirteen different automobiles during the three year marriage, including a 1975 and a 1977 Cadillac. The 1977 Cadillac was repossessed at a loss of $3,000. He also purchased three boats, the last of which cost $6,808 and was repossessed at a loss of $2,000. Kenneth’s activities in this regard must be categorized as a profligate dissipation of the marital assets. Kenneth also endorsed or signed Rosenel’s name to checks and documents without her knowledge or approval. There was other evidence which indicated Kenneth misappropriated to his own accounts funds which ought to have been joint property.

There was no evidence of any misconduct on Rosenel’s part. She worked steadily and was responsible for most of the household chores. She took in laundry and did alterations and sewing for Kenneth’s cleaning business. While the parties claimed sexual difficulties, it would not be appropriate to lay the blame for that incompatibility on either party.

Kenneth’s financial misconduct during the marriage cannot be ignored by this court in reviewing the fairness of the property division. His opprobrious actions in improperly appropriating joint funds, forging Rosenel’s name and wasting marital assets more than off-set any contribution he may have made toward the purchase of the McKibbon home. He should not be entitled to any share of the increase in the equity in that property.

Considering all factors in Rosenel’s favor — unequal initial contribution, their economic circumstances and Kenneth’s mis-dealings and misconduct — the amount of the cash award to Kenneth is reduced to $1,825, his actual contribution in repairs and improvements of the properties.

Rosenel has cited the case of Singleton v. Singleton, 525 S.W.2d 642 (Mo.App.1975) in support of her argument that Kenneth was not entitled to any award. Although there are many factual similarities, Singleton is distinguishable since the court there found as a matter of fact that the husband had a fixed design and scheme by which he sought to transfer his wife’s substantial assets into his possession. No such finding of fact was made here.

This court fully recognizes, “[t]he trial judge is faced with a difficult job of dividing the marital assets between husband and wife. Rarely does his resolution satisfy both parties. We should not second guess the trial judge unless there has been an abuse of discretion.” Halbrook v. Halbrook, 557 S.W.2d 45, 46 (Mo.App.1977). Considering the record and the applicable law, however, this court is convinced the trial court’s division of marital property and its award of $6,500 is against the weight of the evidence. Murphy, supra. There is a firm conviction that the amount of the award was wrong and an abuse of discretion. The trial court properly recognized Kenneth should receive an amount of cash to reflect his contribution to maintenance and improvement of the marital properties. The amount awarded, however, greatly exceeded the value of his contributions and did not give sufficient weight to the parties’ disproportionate initial contributions and Kenneth’s misconduct. Failure to properly weigh these factors resulted in an unjust and inequitable division.

Rosenel contributed 93.5 percent, and Kenneth only 6.5 percent, of the assets brought to the marriage. Under the trial court’s judgment Rosenel would have received only $27,300 of the assets (66.1%), an amount less than the $28,700 she had originally contributed. Even under the judgment as modified Kenneth has gained $7,325 during the marriage ($9,325 less $2,000), substantially more than Rosenel’s gain of only $3,275 ($31,975 less $28,700).

Finally, Kenneth argues that two of the trial court’s “Conclusions of Law” are inconsistent, an abuse of discretion and placed “an unsubstantiated burden” on him. Briefly, the inconsistency claimed was that although the business properties possessed by the parties were found to be marital property, the business and investment losses were attributed solely to Kenneth. The findings are not inconsistent and are supported by the evidence showing that Kenneth operated the businesses. The nature of the “burden” and how it prejudiced Kenneth are not revealed in his brief. In any event, the real issue — the amount of the cash award to Kenneth — has been resolved with little reliance on his business losses. No prejudice is apparent even if the conclusions were in error.

The judgment is modified by reducing the cash award to Kenneth from $6,500 to $1,825. As modified, the judgment is affirmed.

WEIER, C. J., and SMITH, J., concur.

      . In 1976 Kenneth sold Jan Barry Cleaners and purchased Morgan’s Arnold Palmer’s Cleaners.

      . Hilger v. Hilger, 570 S.W.2d 736 (Mo.App.1978); Smith v. Smith, 561 S.W.2d 714 (Mo.App.1978); Daniels v. Daniels, 557 S.W.2d 702 (Mo.App.1977); Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977); In re Marriage of Schulte,
        546 S.W.2d 41 (Mo.App.1977); In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975).

      . Smith v. Smith, supra; Halbrook v. Halbrook, 557 S.W.2d 45 (Mo.App. 1977); Seiner v. Seiner, 552 S.W.2d 54 (Mo.App.1977); In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977).

      . Hilger v. Hilger, supra; In re Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App.1978); Daniels v. Daniels, supra; Halbrook v. Halbrook, supra; Seiner v. Seiner, supra; Cornell, supra; Corder v. Corder, 546 S.W.2d 798 (Mo. App.1977); Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975).

      . Accord: Hebron v. Hebron, 566 S.W.2d 829 (Mo.App. 1978); Badalamenti, supra; Halbrook v. Halbrook, supra; Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976); Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975).

      . The Hilleman property was sold later in 1974. $5,000 of the $7,000 received was used to pay off the note given at purchase of the McKibbon property. The remaining $2,000 was placed in Kenneth’s personal account.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Donald Eugene BOLINGER, Appellant.
    No. 40124.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Melvin G. Franke, Public Defender, Union, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Richard Thurman, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Judge.

The trial court, with a jury having been waived, found defendant Donald E. Bolinger guilty of rape, two counts of armed robbery and impermissive use of a motor vehicle. Defendant has appealed the judgment imposing terms of life imprisonment for rape, two ten-year terms for the robberies and five years for the motor vehicle offense, all to run concurrently.

On appeal, by his first point relied on defendant challenges the sufficiency of the evidence. We recite the state’s evidence which came from the two victims, hereafter referred to as -K. and D. The two young women and their infant children were driving east when defendant, driving behind, signaled them to stop. They did so, thinking he had noticed something wrong with their car. Defendant approached with gun in hand, forcibly entered their car and either then or later robbed each of their money. Still holding his weapon defendant forced K. into the rear seat. While D. drove on side roads as defendant directed, K. partially disrobed and submitted to sexual intercourse, all under defendant’s armed threats. He then forced the women out of their car and drove off.

On cross examination K. said she had once before seen defendant at D.’s home. On D.’s cross examination she was impeached on insignificant details by her preliminary hearing testimony. She testified she knew defendant through a distant family kin, but denied any other relationship with him.

Defendant offered the testimony of police officers concerning the victims’ inconsistent statements as to when defendant drew his gun and whether they had known him. However, the essential elements of the victims’ testimony concerning the charged offenses were not refuted by the victims’ statements to the officers.

Testifying for himself, defendant denied each charged offense; testified he had had an affair with D. and was talking with her about “breaking off.” He said he had been to three bars just before stopping their car and was intoxicated. He acknowledged that in the car he had fired his pistol accidentally and wounded his foot, that after this D. had given him permission to drive off in her car.

The trial court denied defendant’s motions for acquittal. After holding the case under advisement, the court found the state’s evidence more credible than defendant’s, found him guilty on each count and rendered judgment.

Defendant argues the improbability of the victims’ testimony and the conclusory contention that his foot wound made sexual intercourse unlikely. These are “jury arguments” and fall away in view of the trial court’s findings of guilt.

In a jury-waived case the trial court’s findings of guilt have the same force as a jury verdict. Rule 26.01(b), VAMR. And, in determining submissibility we view the evidence favorably to the state and reject defendant’s evidence to the contrary. State v. Gamache, 519 S.W.2d 34[1] (Mo.App.1975). So considering the evidence, we deny defendant’s contention that the evidence was insufficient to warrant the judgment.

By his other point relied on defendant challenges the imposition of life imprisonment for rape. The statute on rape (§ 559.260, VAMR) sets no maximum punishment and absent such limitation, the imposition of life imprisonment is permissible. Section 546.490, VAMR. There is no “excess punishment” when the sentence, as here, is within the permissible range. State v. Phillips, 480 S.W.2d 836[4] (Mo.1972).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: REINHARD, Presiding Judge.

text:
    Joseph Larkie WALLACE, Appellant, v. STATE of Missouri, Respondent.
    No. 40466.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.
    Timothy F. Devereux, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from the denial without an evidentiary hearing or appointment of counsel of his motion for post-conviction relief under Rule 27.26. We affirm.

On April 13, 1971, a jury found movant guilty of robbery first degree by means of a dangerous and deadly weapon and sentenced him to six and one half years imprisonment. Movant filed a notice of appeal, but subsequently made a motion to dismiss that appeal, which motion the Supreme Court sustained on January 22, 1972.

On March 22, 1978, six years after his appeal was dismissed, movant filed in the circuit court of the City of St. Louis a Motion Requesting Reinstatement of Appeal, alleging several grounds for the granting of that motion. Construing this to be in the nature of a Rule 27.26 motion, the circuit court made findings of fact and conclusions of law, denying the motion without an evidentiary hearing or appointment of counsel.

On this appeal, movant alleges that the trial court erred in its summary denial of his motion, because movant had stated sufficient grounds, “including an unknowing waiver of movant’s right to appeal his conviction and ineffective assistance of counsel,” to warrant an evidentiary hearing and appointment of counsel. We construe this point to be that movant’s allegation in his motion as to ineffective assistance of counsel in the dismissal of his appeal constituted a sufficient basis for the granting of an evidentiary hearing.

In the appeal from the denial of a Rule 27.26 motion, the reviewing court is to consider whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Camillo v. State, 555 S.W.2d 386, 388 (Mo.App.1977). In his motion as presented to the trial court, mov-ant alleged “[t]hat the defendant herein was unknowingly and unintelligently misrepresented by appeal counsel to waive his constitutional right to appeal his conviction” and “[cjounsel was totally ineffective in the advice and preparation of his client.”

A party seeking relief through a motion for post-conviction relief must plead facts and not conclusions. Jackson v. State, 558 S.W.2d 816, 819 (Mo.App.1977). Mov-ant’s allegations as to his counsel’s conduct are mere conclusions and as such entitled movant to neither an evidentiary hearing nor appointment of counsel. Vogel v. State, 541 S.W.2d 87, 88 (Mo.App.1976); Snethern v. State, 537 S.W.2d 250 (Mo.App. 1976). The findings, conclusions and judgment of the trial court were not clearly erroneous.

Affirmed.

GUNN and CRIST, JJ., concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Bert DILLWORTH, Appellant.
    No. 40120.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 10, 1979.
    Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant guilty of felonious stealing. The court sentenced him to four years’ imprisonment under the Second Offender Act. Defendant has appealed, his only point being a challenge to the sufficiency of the evidence on the ground that the state’s case rested on the uncorroborated testimony of two police officers which was contradicted by defendant.

According to the state’s two witnesses, both security guards, defendant and a companion were seen to enter the store, stuff sixteen bras into a shopping bag and leave the store and were arrested on the street. The merchandise was valued at $76.32. Defendant denied the theft, contending he was “framed” because he had disobeyed the officers’ previous warning to stay out of the store.

Defendant, without citing authority, contends the police testimony was insufficient when denied by him and “not corroborated by any civilian witnesses.” He does cite two cases holding circumstantial evidence was insufficient, but neither is in point here because the testimony is direct, not circumstantial. The jury obviously believed the state’s evidence and disbelieved defendant’s.

‘ Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    James Enloe ANDREWS, Appellant, v. STATE of Missouri, Respondent.
    No. 40658.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 10, 1979.

      Gary L. Robbins, Public Defender, Jackson, for appellant.
    Bradshaw Smith, Pros. Atty., Cape Girar-deau, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Majorie Wholey Haines, Asst. Attys. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Movant appeals the dismissal of his Rule 27.26 motion without an evidentiary hearing.

Movant entered pleas of guilty in two separate cases, involving three distinct crimes. In Case No. 750874 movant entered a plea to counts charging him with Jail Escape and Assault with a Deadly Weapon. In Case No. 750746 he entered a plea of guilty to the crime of Auto Theft.

Movant was afforded two guilty plea hearings, both occurring on June 6, 1977. At the first hearing in Case No. 750874, after having conducted an extensive interrogation of movant the trial court determined that movant acted voluntarily and accepted his pleas of guilty. Thereafter, the court sentenced him to a term of ten years on the assault charge and two years for escape; the sentences to run consecutively. Immediately after the court has sentenced movant, the court stated, “I note that I failed to have you sign the Petitions to Enter a Plea of Guilty . . . and I want you to sign them only if everything that is in the petition is true and correct and only if you are doing so freely and voluntarily. . . . ” The defendant and his attorney then signed the petitions.

The problem we now face arises from a clause in the Petition to Enter a Plea of Guilty to the charge of jail escape. The clause in question stated, “The Prosecuting Attorney promised that if I plead GUILTY, he will do the following: two (2) year sentence to run concurrently with Scott County, Missouri charge (Auto Theft) and other Cape County Charge (Assault with deadly weapon).” The second petition stated, “The Prosecuting Attorney promised that if I plead GUILTY, he will do the following: 10 years and dismissal of robbery and aiding excape [sic] charge.”

At the second hearing, on the charge of Auto Theft in Case No. 750746, again, after an extensive interrogation the court accepted movant’s plea of guilty, sentencing him to a term of three years; said sentence to run consecutively to those sentences received in Case No. 750874. The petition in this case stated, “The Prosecuting Attorney promised if I plead GUILTY, he will do the following: Run my sentence of three years consecutively with my sentence of jail escape and assault with a deadly weapon.”

In his Rule 27.26 motion entitled “Motion to Correct Sentence or in the Alternative to Vacate Sentence” movant claims that his plea bargain was breached. He contends that his bargain was for all of the sentences to run concurrently and alludes to the clauses contained in his guilty plea petitions. He requests that his sentences be corrected to run concurrently or, that his sentences be vacated altogether.

The trial court, in considering his motion, found that the record of the plea proceedings specifically refuted his claim and thus denied his motion without an evidentiary hearing. On appeal, movant alleged that, “the trial court abused its discretion in refusing to grant appellant’s motion under Supreme Court Rule 27.26 for an evidentia-ry hearing, as allegations and issues of fact raised in appellant’s motion were sufficient to entitle him to an evidentiary hearing as a matter of law.”

We have carefully examined the plea proceedings of Case No. 750746. It appears that defendant was sentenced to a consecutive term in compliance with the petition for his plea. It does not appear that the consecutive sentence movant received in this case controverted the terms of his “plea bargain” with the prosecuting attorney. Movant’s petition for Case No. 750746 states with great specificity that his three year sentence therefor should run consecutively with his sentences on the other charges. As such, we agree with the trial court that movant’s allegations, as they relate to Case No. 750746, are clearly refuted by the record which includes his signed petition. Wimberly v. State, 549 S.W.2d 101[1, 2] (Mo.App.1977).

However, we do not believe that the record clearly refutes movant’s allegations as they pertain to Case No. 750874. In this ease the Petition to Enter a Plea of Guilty, as reflected in the record, creates a question of fact as to movant’s understanding of the sentencing procedure, i. e., whether he was to receive concurrent or consecutive sentences in the jail escape and the assault case.

In the present instance, the trial court clearly indicated that it believed defendant understood the sentences were to be consecutive, but the signed petition does not comport with such an understanding. Thus, there exists a question of fact, yet to be resolved, relative to defendant’s understanding of the sentences he received. In this connection, see Bolden v. State, 530 S.W.2d 505 (Mo.App.1975) wherein the mov-ant claimed (as here) a mistaken belief that his sentences were to run concurrently. We said in that ease, “The record at the guilty plea refutes movant’s [Rule] 27.26 contention he then had a mistaken belief his two sentences could be served concurrently. So, it was unnecessary to grant an evidentiary hearing.” at 507.

The inconsistency between the testimony of the movant at the plea hearing and the written document incorporated into the record, necessitates an evidentiary hearing in Case No. 750874.

Affirmed as to Case No. 750746 and reversed and remanded for an evidentiary hearing as to Case No. 750874.

GUNN and CRIST, JJ., concur.

      . Movant herein, entered his plea prior to Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978) and thus, the trial court was not bound by its mandate. Schellert (to be applied only prospectively) stands for the proposition that where a defendant enters a guilty plea with the understanding that there exists an agreement with the prosecuting attorney, the court is not bound by the agreement as such, but must afford the defendant an opportunity to withdraw his guilty plea if it intends to dispose of the case, in a manner less favorable to the defendant than that contemplated by the terms of the agreement.


author: STEPHAN, Presiding Judge.

text:
    Donald L. TWEDELL, Plaintiff-Appellant, v. TOWN OF NORMANDY, a Municipal Corporation, and Arnold L. Totter, Edward L. Georgen, Harold L. Bruns, Remo Baldi and Ottis Newman, Trustees of the Town of Normandy, Defendants-Respondents.
    No. 39512.
    Missouri Court of Appeals, Eastern District, Division 2.
    April 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Sheldon K. Stock, Robert W. Copeland, Stefan J. Glynias, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, for plaintiff-appellant.
    Roy W. Bergmann, Fred Boeckmann, Clayton, for defendants-respondents.
   STEPHAN, Presiding Judge.

This is an appeal by Donald L. Twedell from a circuit court order dissolving an injunction, originally entered in 1953, whereby the Town of Normandy in St. Louis County had been enjoined from taxing or otherwise exercising municipal control over Twedell’s property.

In March 1950, the trustees of Normandy, purportedly following the then prescribed annexation procedures, filed a petition in the County Court of St. Louis County asking that the boundaries of the town be extended to include the Twedell property, an unincorporated and unplatted tract of some eleven to twelve acres contiguous to Normandy. On May 26, 1950, the County Court issued its order approving such annexation, and pursuant to that order Normandy levied taxes and imposed unspecified municipal restrictions on the Twedell property in the years 1950 through 1953. In February 1953, Twedell filed a petition for injunction in the Circuit Court of St. Louis County, asking the court to declare the annexation illegal and void and to enjoin the defendant Town of Normandy and its trustees from exercising municipal authority over the land in any manner. Twedell claimed that the annexation was accomplished in direct violation of § 80.030, RSMo 1949, which specified the procedures to be followed by a town or village in extending its boundaries, providing, however:

“that no tract of ten acres or more of any unplatted or unsubdivided land used for farming, gardening, horticultural or dairying purposes shall be included in a town by such extension of boundaries without consent of the owner of such tract.”

In November 1953, the circuit court entered its Finding and Decree, finding inter alia, that the property was used “exclusively for farming, gardening and horticultural purposes for the profit and livelihood” of Twe-dell, both at the time of the proposed annexation in 1950 and at the time of the trial in 1953; and that defendant Town of Normandy had at no time obtained Twedell’s consent to such annexation. The court therefore permanently enjoined Normandy and its named trustees and their successors from levying any license or tax on the land or from exercising any municipal control over it “until such time as the use and character of Plaintiff’s property shall justify the inclusion of said property within the boundaries of the Defendant, Town of Normandy, according to the Laws of the State of Missouri.”

In January 1976, the Town of Normandy and its current trustees filed a motion in the circuit court to modify the 1953 decree, alleging that the “land in question is no longer used for farming, gardening and horticultural purposes, but is now the site of a geriatric medical center and nursing home” and requesting a declaration that Normandy had authority to levy taxes on and exercise control over the land. Twe-dell’s motion to dismiss this motion, on the grounds that the circuit court lacked jurisdiction to modify a permanent injunction of some twenty-three years duration or to grant the relief requested, was overruled. A hearing on Normandy’s motion to modify was held; and, on July 7, 1977, the trial court entered an order which reads in part as follows:

“This court finds that Plaintiff’s use of his property is now such as to justify its inclusion within the Defendant Town of Normandy, and Defendant is hereby permitted to levy, assess and collect all lawful municipal taxes, to license, and to exercise all lawful municipal authority and control over the Plaintiff’s property, both real and personal.”

Twedell appeals, claiming that the trial court lacked jurisdiction to modify a permanent injunction that had been in existence for over twenty-three years; that the court misinterpreted the 1953 circuit court decree; and that Normandy did not sustain its burden of proving a substantial change in the use of Twedell’s land. For reasons hereinafter set forth, we hold that the trial court had jurisdiction to modify the decree, that its finding as to the use of the land is supported by substantial evidence but is now of no particular import, and that the modification does not effect the annexation of the Twedell property to the Town of Normandy. Accordingly, we reverse.

Twedell’s argument to the effect that the trial court had no jurisdiction in 1977 to modify the 1953 decree is bottomed on the general principle that a trial court loses control over judgments thirty days after entry. Rule 75.01. However, that rule and the many cases cited in appellant’s brief articulating it do not obtain in the case of a permanent injunction which, as here, is based on a condition subject to change. In such cases, courts must retain jurisdiction to vacate or modify the terms of the injunction in order to avoid unjust or absurd results when a change occurs in the factual setting or the law which gave rise to its existence. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 S.Ct. 552, 85 L.Ed. 836 (1941); Thompson v. Hodge, 348 S.W.2d 11, 13 (Mo. App.1961); 43A C.J.S. Injunctions §§ 280, 281. In this case, the permanent injunction issued because the court found that the tract of land was of such size, use and character as contemplated by the above quoted provision of § 80.030 and that the owner had not consented to its annexation by the Town of Normandy. Indeed, the decree itself speaks in terms of “permanently” enjoining the town “until such time as the use and character of Plaintiff’s property shall justify the inclusion of said property within the boundaries of the Defendant, Town of Normandy, according to the Laws of the State of Missouri.” (Emphasis added.) Thus, the trial court in 1953 recognized that the reasons which warranted the injunction were not immutable and that annexation at some future date was a possibility.

As noted, in the 1953 case as well as in the hearing on the motion to modify, the principal issue litigated was whether the property in question was used for any of the purposes enumerated in § 80.030 — farming, gardening, horticultural or dairying— so as to require for annexation the consent of the owner. Substantial evidence was adduced at the 1977 modification hearing to the effect that a major use of the property at that time was as a site for a large geriatric center and nursing home as well as two residences and that a relatively small portion of the property (certainly less than ten acres) was occupied by fruit trees and a garden area. However, we need not detail this evidence for the reason that since October 13, 1963, the use to which land is put in St. Louis County does not determine whether the consent of its owner is required in order for a municipality to annex it. Curiously, both parties have ignored or overlooked the fact that on the last mentioned date, §§ 71.860 through 71.920 went into effect and what impact these sections have on this case. These sections, not § 80.030, set forth the procedure for annexation “in any first class county which has adopted a constitutional charter for its own local government,” e. g. St. Louis County. No exemptions appear in these sections for tracts of land owned by one who does not consent to annexation. Consequently, Twe-dell’s use of the land in 1977 was irrelevant, and the injunction would properly be vacated because the legal basis for its existence, § 80.030, was no longer applicable.

Although Twedell’s use of the land is no longer an impediment to annexation, it does not follow that Normandy may now exercise municipal control over the property. Normandy argued in connection with the issue of the trial. court’s jurisdiction that power to.modify the 1953 decree was retained because that decree ruled in effect that the Twedell tract had in fact been annexed. In support of its position, Normandy cites language from the 1953 findings of the court that the land had been annexed by action of the St. Louis County Court in 1950 and argues that the decree simply stayed the effect of the annexation. We disagree with such an interpretation of the decree which would result in the bizarre and utterly contradictory holding that, between 1953 and 1977, the Twedell tract was part of the Town of Normandy but not subject to municipal control.

Given the posture in which this annexation came before the court in 1953 — as an apparently accomplished act — it is not surprising that the court should speak of it in such terms; such was the apparent status of the land until the decree issued. And given the court’s obvious recognition, in other portions of the decree of the invalidity of the attempted annexation, it is clear to us that the language relied on by Normandy refers but to the apparent, rather than actual, effect of the annexation procedure. Indeed, the final words of the decree provide that the duration of the injunction would be until the use and character of the land justified its “inclusion . . . within the boundaries” of Normandy. Such an order is the antithesis of a ruling that the land was at that time included within the boundaries of the town.

Although there was substantial evidence to support the trial court’s finding that the change in use of the land between 1953 and 1977 removed it from the exemptions provided by § 80.030, the enactment of §§ 71.860 through 71.920 in 1963 deprives that finding of any legal effect. The trial court therefore erred in holding that the Town of Normandy may, by reason of such change, exercise any municipal authority or control over the Twedell property.

Reversed.

STEWART and KELLY, JJ., concur.

      . That section is identical 1 current § 80.030, RSMo 1969.

      . The steps to be taken to effect an annexation such as that contemplated here include a resolution on the part of the governing body of the annexing municipality describing the area sought to be annexed and separate but simultaneous elections in the municipality and the area. If both elections result in a vote favorable to annexation, a Sawyers Act, § 71.015, declaratory judgment must be obtained, unless the necessity for such litigation is obviated by a unanimously affirmative vote in both the municipality and the area to be annexed. Sections 71.860 through 71.920. These sections are the subject of scholarly explication in City of Kirkwood v. Allen, 399 S.W.2d 30 (Mo. banc 1966).

      . See St. Louis County v. Village of Champ, 438 S.W.2d 205, 213 (Mo. banc 1969) where the following appears concerning the applicability of § 80.030 to St. Louis County after the effective date of §§ 71.860 through 71.920:
      “By amending Chapter 71 in 1963 by the addition of new §§ 71.860-920, the legislature made it clear that so far as a village in a home rule charter county is concerned, the matter of extension of the boundaries was no longer to be decided by the county court (which in this case would have meant the St. Louis County Council) on the petition of the village, on the basis of evidence presented, on what the county court deemed ‘just and proper’ as provided by § 80.030, RSMo 1959, V.A.M.S. Under the new sections, the judicial question is to be decided by a Sawyers Act proceeding under § 71.015, RSMo 1959, V.A.M.S., unless the vote is unanimous in both the village and the annexed area, in which case the municipality need not proceed by declaratory judgment, . . . ”


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Jerry POWELL, Appellant.
    No. 40294.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.
    Charles F. James, Public Defender, Wentzville, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Gregory W. Schroeder, Kristie Green, Asst. Attys. Gen., Jefferson City, Jess L. Mueller, Pros. Atty., Lincoln County, Troy, for respondent.
   GUNN, Judge.

Defendant was convicted of burglary second degree and stealing and was sentenced under the Second Offender Act — § 556.280, RSMo 1969. His appeal charges three points of alleged trial error: (1) abuse of discretion in denying his request for continuance; (2) sentencing under the Second Offender Act; .(3) denying his request for dismissal of the jury panel composed primarily of white, employed veniremen. We find no error and affirm the judgment of conviction.

On Labor Day, 1977 defendant was observed by the owner of an Elsberry, Missouri quarry running from a tool and supply shed on the quarry property. The lock to the shed door had been broken and forced open. Two automotive batteries and starters had been taken from the shed. The defendant was personally known to the quarry owner and was positively identified as the person he had seen running from the shed.

On the day of the trial defendant was an hour and a half late in reporting for trial, and proceedings had to be delayed by reason of his late appearance. Defendant had previously met with his counsel for one interview and had failed to keep another pretrial appointment with his attorney and return a telephone call, although advised to call collect. When defendant did finally appear at court for trial, he advised his counsel “that there possibly may be additional witnesses which would assist him in this case.” His attorney thereupon requested a continuance which was refused. Trial wás commenced, ending with defendant’s conviction for second degree burglary and stealing.

Considering defendant’s first point claiming error in denying his continuance request, we observe that the request failed to comply with Rule 25.08, which in itself is ground for denying a continuance. State v. Davison, 545 S.W.2d 723 (Mo.App.1977). Further, under the circumstances recited we find no abuse of the trial court’s substantial discretion in denying the continuance. State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978); State v. Higgins, 568 S.W.2d 552 (Mo.App.1978).

Defendant’s second point charges that there was no proof of a prior conviction and imprisonment, and, therefore, he was not subject to the Second Offender Act. The state’s evidence regarding the prior conviction and imprisonment was the Lincoln County Circuit Court file identified by the Deputy Circuit Clerk as the record of defendant with a docket entry ordering and sentencing him to two concurrent two year terms of imprisonment for burglary and stealing. The Lincoln County Sheriff testified that he had personally taken the defendant to the state penitentiary in Jefferson City where he was incarcerated. And Defendant overlooks his own testimony that he had been convicted and incarcerated for the prior offense. The evidence here is sufficient to fulfill the requisites for applying the Second Offender Act. State v. Lasiter, 562 S.W.2d 751 (Mo.App.1978); State v. Wilson, 544 S.W.2d 859 (Mo.App.1976); State v. Brown, 543 S.W.2d 56 (Mo.App. 1976).

Defendant’s final complaint relates to the trial court’s failure to strike the jury panel on his claim that it did not include a representative cross section of the community in which he lived. He openly concedes that there can be no allegation nor was there proof that blacks were systematically excluded from his or other jury panels in Lincoln County where he was tried. State v. Pittman, 569 S.W.2d 277 (Mo.App.1978). And his bare allegation that the jury panel did not include a representative cross section of the community in which he lived affords no ground for relief. This point was answered precisely in Wallace v. State, 556 S.W.2d 471, 472 (Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . “Q. [prosecutor] Isn’t it a fact that you have been convicted of a burglary and stealing charge?
      A. [defendant] Yes.
      Q. Isn’t it a fact that you spent time in the penitentiary as a result thereon?
      A. Yes.”


author: GREENE, Judge.

text:
    SIDES CONSTRUCTION COMPANY, Plaintiff-Appellant, v. CITY OF SCOTT CITY, Missouri, Defendant-Respondent.
    No. 10945.
    Missouri Court of Appeals, Southern District, Division Three.
    April 20, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Overruled May 7, 1979.
    Application to Transfer Denied June 19, 1979.

      A. M. Spradling, III, Spradling & Spra-dling, Cape Girardeau, for plaintiff-appellant.
    Thomas L. Arnold, Benton, for defendant-respondent.
   GREENE, Judge.

Plaintiff, on September 24, 1973, entered into a construction contract with defendant city. The contract provided that plaintiff construct a swimming pool, bathhouse, and related items in a city park complex at Scott City, Missouri, for a price of $274,000. The contract specified that the work would be completed within 360 calendar days. The completion date was September 20, 1974.

Article IV of the contract provided that, “In conformity with the General Conditions and Special Conditions of the specifications the amount of liquidated damages for this contract shall be Fifty Dollars ($50.00) per day.”

General Condition 28(1) of the contract provided as follows: “Time is an essential element of the contract, and it is therefore important that the work be pressed vigorously to completion. Should the Contractor or, in the case of default, the surety fail to complete the work within the time specified in the Contract, or within such extra time as may be allowed in the manner set out in the preceding sections, a deduction of an amount as set forth in the Special Conditions will be made for each and every calendar day that such contract remains uncompleted after the time allowed for the completion. The said amount set forth in the Special Conditions is hereby agreed upon as liquidated damages for loss to the Owner and the public due to the obstruction of traffic, interference with use of existing or new facilities, and increased cost of engineering, administration, supervision, inspection, etc., after the expiration of the time stipulated in the Contract, and will be deducted from any money due to the Contractor under the Contract.” Special Condition 15 of the contract provided as follows: “15. Liquidated Damages: In accordance with the provisions of the ‘General Conditions’ the Contractor shall pay to the Owner, as and for liquidated damages and not as a penalty, the sum of Fifty Dollars ($50.00) for each and every calendar day that the Contractor shall be in default of the schedule set forth in the Contractor’s Proposal, unless extensions of time granted by the Owner specifically provide for the waiving of liquidated damages during and over such period of time extension or any part thereof. The Contractor shall set forth in the space provided in the proposal the completion period in calendar days which he considers necessary to satisfactorily complete the work included and described in these Plans and Specifications.”

A request for an extension of time to complete the project was made by plaintiff and granted by defendant. The agreed date for completion, as extended, was December 15, 1974. The work progressed, but was not completed, or accepted by the defendant until May 30, 1975. No further extension of time had been requested by plaintiff, or granted by defendant. Upon completion of the project, defendant withheld the sum of $8,300 from money due plaintiff, which sum allegedly represented liquidated damages due defendant under the contract, computed at the rate of $50 a day for 166 days.

Plaintiff then filed suit against defendant in the Circuit Court of Scott County seeking recovery of the $8,300 in question, plus interest. Plaintiff had previously demanded full payment from defendant, and was refused. Plaintiff, in its pleadings, contended that Article IY of the contract (the liquidated damages clause) was unenforceable and void, as not representing any true or realistic damages suffered by defendant; that defendant suffered no actual damages by plaintiff’s failure to complete the project by December 15, 1974; that defendant’s failure to bring in water and sewer lines to the swimming pool site, prior to May of 1975 caused the completion of the project to be delayed without fault of the plaintiff, and that the withholding of the $8,300 by defendant was arbitrary, capricious and improper since said amount was a penalty, and was not liquidated damages.

Defendant, in its pleadings, admitted that it had withheld the $8,300 but contended that it was entitled to such sum under the provisions of the contract and the General and Special Conditions that were a part of the contract. Defendant denied that it owed plaintiff any money whatsoever. Defendant did not plead that it had suffered any actual damages by failure of plaintiff to complete the contract by December 15, 1974.

The case was tried before the court without a jury. In addition to a stipulation regarding the contract’s execution, its completion dates, and the contract extension, some additional facts were introduced into evidence at the time of trial. Those facts were as follows. The pool in question was an open air unheated pool. Ninety-five to ninety-eight percent of the project was completed by January 1,1975, and the main items yet to be completed on that date were the painting of the inside of the pool, the finish grading of the road to the pool, the finish grading of the parking lot, and the filling of the pool with water to check out the mechanical system. The painting and the filling of the pool for purposes of checking the equipment could not be done during the winter months because the paint would not adhere to the concrete, and the water in the pool would freeze, causing damage to the water pipes and the pool itself. The water line to the swimming pool was put in by Herbert Mogdlin, a contractor from Scott City, under an independent contract with defendant. It was not completed until the month of April in 1975. Defendant’s architect, George Sailer of George E. Butler and Associates, advised plaintiff, by letter of February 7, 1975 (plaintiff’s exhibit 2) as follows: “We understand that the painting and the finish grading of the roads should probably be completed in the Spring after the winter freezing and thawing has run its course. On the other hand, the finish grading of the parking area which would prevent storm water runoff from entering the bathhouse and pool areas should be completed at the present time in our judgment.” Nothing was said in the letter regarding another extension of time, or the waiver of liquidated damages.

James 0. Cauble, Jr., who was Mayor of Scott City from April of 1975 until April of 1976, and was a member of the city council prior to that time, testified that the installation of the playground equipment, which was a part of the project in question, was not done until after March of 1975; that defendant had to hire night watchmen to watch the playground equipment while the concrete for its installation was drying; that plaintiff had to lower the height of the parking lot after it was finished thereby causing a possible obstruction of traffic; and, that it was necessary for defendant to hire an additional engineer, Robert M. Harrison, to make additional inspections after December 15, 1974. These inspections were made in March of 1975. The engineer found that the finish grade of the parking lot was incorrect, which caused a drainage problem, and that the electrical and mechanical work was not finished.

On February 6, 1978, the trial court, citing Bloomfield Reorganized School Dist. No. R—14 v. Stites, 336 S.W.2d 95, 97 (Mo. 1960), as authority for its ruling, entered a judgment for defendant and dismissed plaintiff’s petition, stating that the $8,300 withheld by the defendant represented liquidated damages and not a penalty, and that defendant did not have to prove any actual damages in order to claim liquidated damages. Plaintiff then appealed to this court.

Plaintiff raised only two points on appeal. 1) that the liquidated damages provision in the contract was, in reality, a penalty since defendant failed to show that it sustained any actual damages by plaintiff’s failure to complete the contract by December 15, 1974; and, 2) that strict construction of the contract language clause concerning liquidated damages worked an absurdity or oppression in that plaintiff could not complete the balance of the work remaining to be done on December 15, 1974, because of adverse weather, thus causing the contract clause in question to be penal in nature. Both of the points raised by plaintiff concern the “much vexed question”, as stated by Judge Lamm in Thompson v. St. Charles County, 227 Mo. 220, 235, 126 S.W. 1044, 1049 (1910), of whether or not a specific contract clause, in a public works construction contract, calling for liquidated damages at a per diem rate in the event that the contract is not completed by the day the contractor specified as a completion date, should be treated as such by the parties and enforced by the courts or should be regarded as a penalty clause that is unenforceable and void.

The right to stipulate for liquidated damages for delay in completing construction of public works is generally recognized, and the stipulated amount may be recovered, if reasonable. Provisions for fixed per diem payments for delay in the performance of such contracts are usually construed as stipulations for liquidated damages, and not as penalties, where the actual damages are uncertain or are difficult of ascertainment, and where the stated sum is a reasonable estimate of probable damages or is reasonably proportionate to actual damages.

In deciding such questions, the courts should consider the nature of the contract, the public detriment to be contemplated by the delay, and the difficulty in approximating damages as a result of the delay. In such cases, the courts generally hold that such contractual provisions are stipulations for liquidated damages, and are not penalties. 64 Am.Jur.2d, Public Works and Contracts, § 127, at p. 996. See also 13 Am.Jur.2d, Building and Construction Contracts, §§ 84-86, pp. 85-88.

There was a time when the courts were quite strong in their view that almost every contract clause containing a liquidated damage provision was, in fact, a forfeiture provision which equity abhorred, and therefore, nothing but actual damages sustained by the aggrieved party could be recovered in case of contract breach caused by delay past the proposed completion date. But, in modern times, the courts have become more tolerant of such provisions, probably because of the Anglo-Saxon reliance on the importance of keeping one’s word, and have become more strongly inclined to allow parties to make their own contracts and to carry out their own intentions, free of judicial interference, even when such non-intervention would result in the recovery of a prestated amount as liquidated damages, upon proof of a violation of the contract, and without proof of actual damages. United States v. Bethlehem Steel Co., 205 U.S. 105, 119, 27 S.Ct. 450, 455, 51 L.Ed. 731, 737 (1907); Yerxa v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 957-958, 288 S.W. 20, 34, (1926). The reasoning in United States v. Bethlehem Steel, supra, has been followed in Missouri in public works construction cases. See Bloomfield Reorganized School Dist. No. R—14 v. Stites, supra, and Southwest Engineer Co. v. Reorganized Sch. Dist. R—9, 434 S.W.2d 743 (Mo.App. 1968).

In this case, the relevant evidence was not disputed. Most of the facts were stipulated. The plaintiff was in default. It had already sought and was granted an extension of time to complete the project, with a waiver of liquidated damages for the period of time in question, from September 20, 1974, to December 15, 1974. In spite of this, plaintiff did not complete the project until May 30, 1975. Although we doubt, as did the trial court, that any proof of actual damages was necessary to bring the liquidated damages provision to life, the defendant has shown damage by the necessity of having to hire additional engineering personnel to inspect the project; by being inconvenienced by the regrading of the parking lot; and, by the loss of interest on its capital investment during the delay period in question.

It is true that the precise amount of such damages is difficult to ascertain. That is why a liquidated damages provision in a construction contract is beneficial to both parties. It protects the owner from a future laborious recitation of item by item damage, and it protects the contractor from a potential lump sum claim of substantial sums of money in the event of breach of the completion provision. Here, the contract was for $274,000. The liquidated damages were $8,300, which is only 3.029 percent of the total amount of the contract. When we consider modern interest rates, and the fact that the defendant was paying interest on its bond issue money at the rate of 5.83 percent during the time the plaintiff was in default (a stipulated fact), the amount of liquidated damages here was not oppressive, was not greatly disproportionate to the total amount of the contract, and should not be considered as a penalty. Thompson v. St. Charles County, supra, 227 Mo. at 240, 126 S.W. at 1050.

Plaintiff also urges, in its second point, that enforcing the liquidated damages provision of this contract would work an absurdity or oppression on plaintiff in that it could not paint the inside of the pool during the months of December of 1974 through April of 1975 for fear of the paint “popping off”. We are not impressed by this argument. The record is completely devoid of any evidence as to why plaintiff had not painted the pool within the contract’s extended period, which was from September 20, 1974, until December 15, 1974. What plaintiff is really saying, on appeal, is that in spite of its unexplained dilatory conduct, we should excuse its contractual debt, extend judicial approval to its admitted breach of contract, and decree that the contract, which plaintiff knowingly and willingly entered into, does not mean what it plainly says. We decline to do so. We have carefully considered all of the cases cited by plaintiff in its brief. None of them are on point under the facts of this case, and a recitation of their differences from the facts here would serve no useful purpose. The issues raised in the court below, based on the facts and the law, were correctly decided by the trial court.

The judgment is affirmed.

BILLINGS, J., recused.

FLANIGAN, C. J., and MAUS, J., concur.


text:
    STATE of Missouri, Respondent, v. Charles B. JONES, Appellant.
    No. 39609.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 24, 1979.
    Robert C. Babione, Public Defender, Frank R. Fabbri, III, Charles H. Mostov, Erica Leisenring, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant guilty of first degree robbery and rape. The court sentenced him to consecutive terms of ten and twenty-five years’ imprisonment as a second offender. Defendant has appealed, raising the single point that the court erroneously refused his not-in-MAI-CR instruction on mistaken identification. He contends the refused instruction “provided directions to the jury to guide its evaluation of the identification testimony” by the pros-ecutrix.

We recite the state’s evidence concerning defendant’s point. The prosecutrix, Ms. Michele Morris, was awakened by defendant’s burglarious entry into her home. She saw him for two periods of fifteen seconds at close range before defendant masked, bound and raped her. Ms. Morris called the police and described the defendant after he left.

Ms. Morris unfruitfully viewed three lineups during the next four months and on the fourth occasion identified defendant in a four-man lineup. Defendant boastfully told police at that time: “I fucked these women.” Ms. Morris again identified defendant in court. Defendant offered no evidence at trial.

Defendant’s refused instruction was verbose and argumentative, a typical pre-MAI instruction. It stressed the elements of reasonable doubt and the state’s burden of proof and told the jury that in weighing the identification testimony it should consider the time, distance and visibility. All this was, in effect, covered by MAI-CR 2.01, and Note 2 thereof bars further instructions “on the believeability of witnesses, or the effect, weight of the value of their testimony.”

Defendant’s cited cases concern the right to instructions on affirmative defense, rather than the credibility of the state’s evidence which the refused instruction challenged. So, the cited cases are not in point.

The refused instruction here is akin to those properly refused in State v. Gray, 549 S.W.2d 99[2, 3] (Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.