author: CLAYTON, Justice.

text:
    Gene ISAACS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Gary Johnson, Asst. Public Defenders, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Gene Isaacs was indicted by the Garrard Circuit Grand Jury and charged with the first-degree rape of his niece, who was then less than 12 years of age. He was subsequently found guilty following a jury trial and sentenced to confinement in the penitentiary for a period of 20 years. By this appeal he charges as error the trial court’s refusal to submit to the jury his tendered instructions on the crime of sexual abuse in the first degree and on his lack of mental capacity due to intoxication to form an intent to commit the crime.

The evidence developed at trial indicates that in the hours before the alleged attack occurred, appellant consumed a considerable amount of alcoholic beverage in the company of the father and another uncle of the prosecuting witness. Her father requested appellant to take her to his home from her grandmother’s home, and the prosecuting witness testified appellant proceeded to comply with this request but then suddenly changed directions, stopped in a remote area, forced her from the automobile, and began beating her with his fists. He accused her of having been the cause of automobile accidents in which he had been involved and threatened to kill her if she should ever tell anyone of his actions. She further testified appellant removed her underwear and “. . . got out his personal belonging on his body.”; and “. . .he stuck his private thing up my body.” On cross-examination, the prosecutrix indicated that the darkness prevented her from seeing Isaacs’ penis and because of this she did not know what it was that had penetrated her. Dr. Paul Sides, who examined the prosecutrix that same evening, testified he found a laceration of about one and one-half inches extending up into the vagina. Because he felt an examination by a gynecologist to be warranted, he requested that the University of Kentucky Medical Center examine her. She was thus examined there a few hours later by Dr. William Jackson Carey, who testified he found “. . .a one centimeter laceration over the fourchet [sic] which is the lower portion of the vagina, the entrance into the vagina . extending to the hymenal ring”, an injury which he said was consistent with sexual penetration. Appellant testified in his own behalf but did not offer a version of the events differing from that alleged by the . Commonwealth. Rather, Isaacs stated that he had, subsequent to a prior automobile accident, experienced “blackouts” following consumption of alcoholic beverages and that he experienced such a blackout during the period when he was alleged to have committed the rape so that he had no memory of any of the events in question. The testimony as to the occurrence of these blackouts on prior occasions was. corroborated by testimony of his wife and brother.

Appellant argues the evidence summarized above renders the trial court’s refusal of his tendered instructions erroneous. He contends the testimony of the prosecuting witness and the examining physicians leaves the fact of penetration by his penis in such doubt that he was entitled to an instruction on the lesser offense of sexual abuse. He further alleges the testimony presented in his behalf concerning his intoxication and history of “blackout” experiences shows he did not act willfully in committing the alleged rape so that he was entitled to the tendered instruction permitting the jury to find him not guilty by virtue of this defense. Having carefully reviewed the record and arguments of counsel, we are of the opinion the court ruled correctly in refusing both such instructions.

We have recently written on the subject of what quantum of evidence is necessary in order to require an instruction on a “defense” such as intoxication, Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (decided March 11, 1977), and are of the opinion the same criterion applies to the necessity for an instruction on a lesser included offense or on a lower degree of the crime charged. See Muse v. Commonwealth, Ky., 551 S.W.2d 564 (decided today), a homicide case in which the question was whether the evidence justified an instruction on first-degree assault. The evidence as a whole must be sufficient not only to support a conviction of the lesser offense, but also to justify a reasonable doubt as to whether the defendant is guilty of the higher or the lower degree. In this particular instance, there is not a scintilla of evidence to inject a reasonable doubt as to whether the vaginal injuries inflicted on the prosecuting witness were caused by the penetration of a man’s penis or by some other object or instrumentality, in that there was neither direct proof nor evidence supporting an inference that the laceration might have resulted from anything other than a penetration by Isaacs’ penis. In this state of the evidence, we hold the trial court properly refused the tendered instructions on sexual abuse. Our view on this issue is fortified by the following comment accompanying the instructions on rape and sexual abuse found in Palmore’s Kentucky Instructions to Juries:

“The offenses contained in these instructions are defined in KRS 510.040 (First-Degree Rape) and KRS 510.110 (First-Degree Sexual Abuse). The instructions would apply to those instances in which the victim of the defendant’s act was under twelve years of age or was physically helpless. .
“These instructions contemplate a situation in which the evidence raises no issue of mistake as to the victim’s age or condition of helplessness. They present an issue as to whether the defendant’s act was sexual intercourse or only sexual contact. If the evidence would support a finding only to the effect that the defendant’s act was intercourse or nothing, then the instruction on sexual abuse should be omitted.” Palmore, Kentucky Instructions to Juries, Volume 1, Comment to Sec. 2.32, 1975.

In regard to the second tendered instruction, we have consistently held that in cases where the doing of the act constitutes a crime regardless of the intention with which the act was done, the defendant is not entitled to an instruction on lack of mental capacity to form an intent to commit the crime due to intoxication. Coots v. Commonwealth, Ky., 418 S.W.2d 752 (1967); Hatfield v. Commonwealth, Ky., 473 S.W.2d 104 (1971). Appellant, however, cites KRS 501.030 to .050 to argue the “. . . law of Kentucky has been changed by an obvious and unambiguous legislative pronouncement . . .” so that a culpable mental state must now be shown in order to convict an accused of the crime of rape. We have carefully considered these sections of the Penal Code and remain firm in our belief that the carnal abuse of a child is a crime without regard to the reasons or the intent with which it was done, so that an instruction such as the one under consideration in this case should not be given. Here our conclusion is fortified by the commentary to KRS 510.040, rape in the first degree, which specifically states “. . . The mere act of sexual intercourse with a child under 12 completes the offense. . . .”

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANT, Judge.

license: Public Domain

text:
    David Thomas WHITE, Appellant, v. Jean BENNETT, Appellee.
    Court of Appeals of Kentucky.
    July 8, 1977.

      Jack G. Stephenson, Harlan, for appellant.
    Eugene Goss, Harlan, for appellee.
    Before GANT, HOGGE and VANCE, JJ.
   GANT, Judge.

This is an appeal from a decree of the Harlan Circuit Court ordering the appellant to pay the sum of $200.00 per month for the support of the parties’ two minor children and to provide medical and hospital benefits for the children under his UMWA employment contract.

The parties to this appeal were divorced in the circuit court for Baltimore County, Maryland, on July 11, 1966. The decree of divorce awarded the care and custody of the parties’ two minor children to the appellee, Jean Bennett, and granted to the appellant, David Thomas White, the right to visit the children at reasonable times. The court further ordered the appellant to pay to the appellee “the sum of $60.00 per month for the support and maintenance of the said two infant children of the parties, subject to the further order of this court.” The children were living in Harlan County, Kentucky, at the time of the judgment of divorce and have remained there with their mother ever since that judgment was rendered.

In 1967 the appellant moved to Arizona and subsequently became a resident of Harlan County, Kentucky, for one year prior to the filing of this action. He has not made any of the child support payments ordered by the Maryland court since. October of 1970.

The appellee filed her complaint for child support seeking to recover $3,840.00 arrear-ages for child support, $300.00 per month for future child support and medical and hospital insurance for the children. The Harlan Circuit Court awarded a judgment for the amount in arrears, ordered the father to pay the sum of $200.00 per month for future child support payments and further ordered him to provide medical and hospital benefits for the children under his UMWA contract. This appeal followed.

Appellant’s sole contention is that the Harlan Circuit Court could not increase the child support payments ordered by the Maryland court or add medical insurance coverage to the decree of a sister state. The first issue to be resolved is whether the modification of the support order by the Kentucky courts violates Article IV, Section 1, of the United States Constitution which provides that full faith and credit be given in each state to the judicial proceedings of every other state. The courts have long held that where a provision for support is subject to modification by the court which rendered it, a court in another state may also modify it since the judgment is entitled to no greater credit in any of the states of the union than it is entitled to in the state in which it originated. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Shulman v. Miller, 191 F.Supp. 418 (E.D.Wis.1961). See Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269 (1933). Since the support award was subject to modification by the Maryland courts, it could also be modified by the courts of this Commonwealth without violating the full faith and credit clause of the United States Constitution.

Another approach to the full faith and credit problem is to hold that the Maryland divorce decree was not a final judgment since the future support payments were modifiable and, as such, are not entitled to full faith and credit. Since the divorce decree was not a final judgment with regard to the support payments, the Kentucky courts are not obligated to give it full faith and credit. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910) (accrued alimony). In applying this reasoning to child support cases, see Bradley v. Bradley, 309 Ky. 28, 214 S.W.2d 1001 (1948). See also Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810 (1900).

This court is of the opinion that the Restatement (Second) of Conflict of Laws, § 109 (1971) properly summarizes the effect of the full faith and credit clause in situations of this type. Therein it states:

(1) A judgment rendered in one State of the United States need not be recognized or enforced in a sister State insofar as the judgment remains subject to modification in the State of rendition either as to sums that have accrued and are unpaid or as to sums that will accrue in the future.
(2) A court is free to recognize or enforce a judgment that remains subject to modification under the local law of the state of rendition.

The second question presented is whether the Harlan Circuit Court as a matter of comity should enforce the Maryland court’s decree with regard to the payment of future child support. Appellant urges that Glanton v. Renner, 285 Ky. 808, 149 S.W.2d 748 (1941) is dispositive of this issue. Therein the court held as follows:

a judgment of a local court based upon the judgment of a sister state for alimony or support of children payable in installments, can go no further than to adjudge a recovery of the accrued payments, since such judgments, especially future installments, are subject to modification by the court of the jurisdiction rendering it and perhaps any court which may acquire jurisdiction of the matter.

This language seems to indicate that the court would approve of a modification by a local court where it could acquire jurisdiction of the matter and of the parties as we have here.

There are several reasons for the courts of this Commonwealth to modify the decree of a sister state for child support under these circumstances. All the parties involved are domiciled in Kentucky and have severed their ties with Maryland. Kentucky has a significant interest in the welfare of the children since they could become a charge upon this Commonwealth if the amount previously awarded in the Maryland decree was insufficient to support the children in the future. Also, the Maryland courts would probably look with disfavor upon a motion for an increase in support when all the parties were residents of another state. See Abbott v. Abbott, 304 Ky, 167, 200 S.W.2d 283 (1947). Therefore, this court is of the opinion that the Harlan Circuit Court was justified in assuming jurisdiction to modify the child support provision in the Maryland decree under these circumstances. For a similar factual circumstance, see Amato v. Sanborn, 47 Mich.App. 244, 209 N.W.2d 429 (1973).

Appellant’s final contention is that the Harlan Circuit Court could not add provisions relating to hospital and medical insurance to the decree rendered by the Maryland court. We disagree. This court has long held that “ . . . [hospital and medical] insurance for the benefit of the children is in keeping with the proposition that a father is responsible for the financial support of his children.” Bradley v. Bradley, Ky., 473 S.W.2d 117 (1971); Budig v. Budig, Ky., 481 S.W.2d 95 (1972). The Harlan Circuit Court in ordering the appellant to provide medical and hospital benefits for the children under his employment contract was not adding a further provision to the Maryland decree but was ordering an increase in the support under the reasoning of Bradley, supra, and Budig, supra. We conclude that the court properly required the appellant to provide medical and hospital benefits for his children.

This is a case of first impression, as far as this court can determine. We note with interest that Professor Petrilli, in his excellent work, Kentucky Family Law (1969), has stated, in § 27.18, as follows:

Where a sister-state, with original jurisdiction, has issued a support order, it has been held that such jurisdiction continues, and no Kentucky circuit court has jurisdiction to modify such order—even though all parties (father, mother, and child) are presently residents of Kentucky.

He then cites the case of Stewart v. Sandifur, Ky., 294 S.W.2d 923 (1956) as holding that the Jefferson County Circuit Court had no jurisdiction over an Ohio circuit court divorce. The only problem with this was that it was not a sister state but the Ohio County, Kentucky, Circuit Court. Although some of the attorneys in adjacent counties may regard the Ohio County Circuit Court as a foreign jurisdiction, we doubt that we can justify this geographically-

The judgment is affirmed.

All concur.


text:
    Eloise SINGLETON, Appellant, v. BOARD OF EDUCATION OF HARRODSBURG, Kentucky, Appellee. Larry CORDELL, Appellant, v. BOARD OF EDUCATION OF BOYLE COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 15, 1977.

      Arthur L. Brooks, Brooks & Sullivan, Lexington, for appellants.
    James William Barnett, Sheehan, Con-over, Barnett & Hays, Harrodsburg, for appellee, Bd. of Ed. of Harrodsburg.
    Bryan, Fogle & Riggs, Mount Sterling, Silliman & Dishman, Danville, for appellee, Bd. of Ed. of Boyle County.
    Before GANT, HOWERTON and WIL-HOIT, JJ.
   GANT, Judge.

These are companion cases, concerning identical questions of law and questions of fact which vary so slightly that they constitute a difference without a distinction. Both cases were decided by the court of the same judicial circuit and in the same manner.

Each of the appellants had been employed by his or her respective Board of Education for four consecutive years on a limited service contract, the fourth year expiring at the end of the 1975-1976 school year. Each appellant was notified prior to May 15, 1976, that he or she would not be re-employed for the ensuing year; each requested the applicable board for reasons for not renewing the contract. In one of the cases, no reasons were given and in the other perfunctory reasons were furnished. Each appellant brought suit against the ap-pellee in the separate cases and in each case the lower court issued an order requiring the appellee to furnish specific reasons. In both cases the specific reasons were furnished pursuant to the order and in neither case did the list include any statement which would constitute a violation of the rights of the individuals concerned under the constitutions of the United States or the Commonwealth of Kentucky. Thereafter, each of the appellees filed a motion for summary judgment with accompanying affidavits, the lower court sustaining both of said motions. It is from these judgments that appeals were taken.

All parties agree that at the time of the instant cases, there were two sections of the Kentucky Revised Statutes applicable to teachers holding limited contracts. The first of these was KRS 161.740(l)(b) which read as follows:

When a currently employed teacher is recommended for re-employment after teaching four (4) consecutive years in the same district, or after teaching four (4) years which shall fall within a period not to exceed six (6) years in the same district, the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.

The second was KRS 161.750(2) which, prior to the amendment effective July 1, 1976, read as follows:

Any teacher employed under a limited contract and ineligible for a continuing contract shall at the expiration of such limited contract be deemed re-employed under the provisions of KRS 161.720 to 161.810 for the succeeding school year at the same salary schedule, unless the employing board shall give such teacher written notice on or before the fifteenth day of May of its intention not to re-employ him; upon request by the teacher, such written notice shall contain the specific reason or reasons why the teacher is not being re-employed. Such teacher shall be presumed to have accepted such employment, unless he shall notify the board of education in writing to the contrary on or before the fifteenth day of June, and a written contract for the succeeding year shall be executed accordingly-

The appellants argue that KRS 161.-750(2) was applicable and that the provisions thereunder were not met by the respective boards of education in failing to give “specific reason or reasons” prior to the date of the court order in each of the cases. The appellees argue that KRS 161.-740(l)(b) was applicable and that neither notice nor reasons were required. The lower court held that, because the teacher was not re-employed, he or she became subject to the provisions of KRS 161.750(2). We do not concur with this reasoning and feel that the lower court is confusing eligibility with re-employment. It is our opinion that KRS 161.740(l)(b) was the applicable statute pertaining to both cases.

The case of Dorr v. Fitzer, Ky., 525 S.W.2d 462 (1975) is certainly in keeping with this construction. In both the majority and dissenting opinions in that case it is conceded that where a teacher has completed the four-year probationary period with limited contracts, thus attaining eligibility for a continuing contract, KRS 161.740 is the controlling statute.

Having determined the proper statute, we must then examine compliance in these two cases. This statute contains no provisions whatsoever for either notice or furnishing specific reasons to the teacher who is not re-employed. Notice was given, however, and appellants make- no complaint that it was not a timely notice under the circumstances of these cases.

We must then determine whether the teacher is entitled to specific reasons for the failure of the board to extend a continuing contract in the absence of a statutory obligation to do so. We do not think there is such a right. Prior to July 1,1976, there existed three distinct classifications: (1) Teachers under limited contracts during their first three years; (2) Teachers under limited contracts after four years; and (3) Teachers under a continuing contract, or tenure, as it is called. Those under (1) were entitled to notice and specific reasons. Teachers under (3) were entitled to notice, specific reasons and a hearing pursuant to KRS 161.790. However, teachers under (2) were not given any of those rights by statute.

In the absence of statutory right, we must examine whether there is an implied right. Such a right would be derived from the Fourteenth Amendment to the Constitution of the United States, which provides in part: “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law, . . . ” It is the opinion of this court that two cases are dispositive of this issue. The first is Dorr v. Fitzer, supra. In that case the teacher had also completed the four probationary years pursuant to limited contracts for each of those years. However, the teacher had an even stronger claim to a property right in that the superintendent had recommended her for re-employment, the second step provided under KRS 161.740. The court held, at page 464: “The provision of KRS 161.740 that ‘if the teacher is employed by the board’ a continuing contract shall be issued means that the board has an open choice whether or not to make the employment that will result in a continuing contract. * * * We find nothing in the words of the statute in its present form to require the construction that cause (emphasis ours) is now required . . .”

The second case is the case of Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In that case, a non-tenured teacher was hired for a fixed term at a state university.' He was given notice, without specific reasons, that he would not be rehired for the following year. The applicable Wisconsin statutes did require notice but stated that “no reason for non-retention need be given.” The teacher in the Roth case had what corresponded to the “limited contract” under Kentucky law. In reversing a summary judgment in favor of the teacher, the Supreme Court of the United States stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.
* * * * * *
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

The court went on to hold that in the absence of a state statute granting such a right or in the absence of a course of conduct by the employer that would create such a right, the teacher did not have a property interest sufficient to give the teacher a statement of reasons and a hearing on the decision not to rehire him.

The final contention of each appellant is that a summary judgment was not proper since there was an allegation in each complaint that the “real reason for the board’s decision not to re-employ . was to punish for exercising his right of free expression and association protected under the First Amendment to the Constitution of the United States.” It is true that each complaint in the lower court contained such an allegation. However, in each of these cases, one by answer and one by amended answer, both of which were verified, the appellees furnished an exhaustive chronology of reasons for failure to rehire the respective appellants. In their motion for summary judgment, each appel-lee adopted these verified pleadings as their affidavits in support of the motion and in each case, the appellant failed to file counter-affidavits setting out any manner by which he was punished “for exercising rights and privileges protected by the First Amendment to the Constitution of the United States, that is, the right of free expression and association,” or any affidavits showing that the action was “otherwise arbitrary, capricious and discriminatory.”

It has long been the law in Kentucky that a motion for a summary judgment, supported by affidavit disclosing the movant’s non-liability, with no counter-affidavit being filed and no response being made thereto, is properly granted. See Gullion v. Ewry, Ky., 384 S.W.2d 315 (1964).

One other matter remains to be disposed of. Both appellants and both appel-lees have urged this court to correct a statement contained in the case of Sparks v. Board of Education of Ashland, Ky.App., 549 S.W.2d 323 (Opinion rendered April 1, 1977). The appellant in that case occupied the same position as these appellants, being in her fourth year under a limited contract. The court in that case stated: “At the time the action was taken by the school board, the appellant had not yet fully completed four years employment, and was, therefore, ineligible for a continuing contract.” That statement is an error and the correction requested by the parties is in order. KRS 161.740(l)(b) states, in part, as follows:

When a currently employed teacher is recommended for re-employment after teaching four (4) consecutive years in the same district or after teaching four (4) years which shall fall within a period not to exceed six (6) years in the same district, the year of present employment included, .

Thus we see that this statute is applicable only during the fourth year of employment and not after that year is completed and a subsequent year begun. Although we concur in the result reached in Sparks, supra, the previous statement from that case is not the law in Kentucky.

For the reasons above stated, the judgment is affirmed.

All concur.


author: COOPER, Judge.

text:
    HARRY M. STEVENS COMPANY, INC., Appellant, v. WORKMEN’S COMPENSATION BOARD of Kentucky, and Vivian Thomas, Appellees.
    Court of Appeals of Kentucky.
    July 15, 1977.
    Kenneth S. Handmaker, Bernard B. Davis, Handmaker, Weber & Meyer, Louisville, for appellant.
    Richard H. Schulten, Louisville, for ap-pellees.
    Before COOPER, LESTER and WHITE, Judges.
   COOPER, Judge.

This is a Workmen’s Compensation case where the appellee fell on a sidewalk adjacent to Churchill Downs as she was leaving her employment with the appellant. She was about to enter an automobile to take her home when her injury occurred. The injury occurred on November 24, 1973. Among other issues on appeal was:

Whether claimant is precluded from compensation by reason of failure to give timely notice to her employer as prescribed by KRS 342.185.

One of the threshold questions which must be addressed in any Workmen’s Compensation claim is whether notice was timely given by an injured employee to his employer as required by KRS 342.185. In its finding of fact, the Workmen’s Compensation Board found in Number 2 that, “ . . . The defendant received due and timely notice of plaintiff’s claim.” This statement by the Board, though denominated a “finding of fact”, is clearly a conclusion of law. The Board made no findings of fact which either support or contradict its conclusion of law that notice was due and timely given. Therefore, there is nothing in the Board’s opinion and award concerning this conclusion of law which can serve as the basis for meaningful appellate review of the Board’s conclusion.

This case is reversed with instructions to the court below that it remand the case to the Workmen’s Compensation Board for a finding of fact sufficient to make a determination as to whether or not the appellant received due and timely notice of appellee’s claim for compensation, as required by KRS 342.185.

We do not, at this time, address the other issues propounded by the appellant.

All concur.


author: HOWERTON, Judge.

text:
    KNOTT COUNTY BOARD OF EDUCATION, Appellant, v. Stephen John MULLINS, an infant by and through Arthur Mullins, his father and next friend, Appellee.
    Court of Appeals of Kentucky.
    July 15, 1977.

      Clark Pratt, Hindman, for appellant.
    Richard D. Cooper, Cooper, Gullett & Combs, Hazard, Earl M. Cornett, Hindman, for appellee.
    Before HOWERTON, COOPER and REYNOLDS, JJ.
   HOWERTON, Judge.

On April 10, 1974, Stephen John Mullins was struck by an automobile driven by Tammy Combs. The accident occurred while the appellee was on the Hindman Elementary School grounds. He was on his way to board a school bus. The appellee filed suit against the operator and owner of the automobile. The defendants filed a third-party complaint against the appellant. The appellee amended his original complaint and alleged negligence on the part of the appellant. Appellant’s answer denied negligence on its part, alleged contributory negligence, and provided that the pleadings failed to state a claim upon which the relief sought could be granted. No other affirmative defenses or motions to dismiss were filed. The case was tried before a jury and the result was a verdict in favor of the appellee against the appellant for $10,000.00 and against the other defendants for $10,-000.00.

On this appeal, appellant contends (1) it was not guilty of any negligence; (2) appel-lee was guilty of contributory negligence, and (8) it is an agent of state government and is not liable in damages for the torts of its employees. We need not consider the merits of the first two allegations, but on the basis of the third contention, we must reverse the trial court and agree with the appellant.

The question of sovereign immunity was never clearly raised until the close of appel-lee’s evidence and again at the close of all of the evidence when the appellant moved for a directed verdict and used the doctrine of sovereign immunity as a basis for its motion. Both motions were overruled, which is most unfortunate because the ap-pellee’s $20,000.00 combined award will now be cut in half.

We would conclude that if a litigant could waive its sovereign immunity defense, appellant would have done so in this action. It appears, however, that such a waiver cannot be made.

Although some cases hint at a possible waiver and refer to the fact that the defense was raised (see, Board of Education of Leslie County v. Lewis, Ky., 449 S.W.2d 765 [1974]), it appears well settled that immunity can only be waived by an act of the legislature. Smith v. Commonwealth, Department of Highways, Ky., 495 S.W.2d 178 (1973); Foley Construction Company v. Ward, Ky., 375 S.W.2d 392 (1964), and Commonwealth, Department of Highways v. Davidson, Ky., 383 S.W.2d 346 (1964). See also, Smiley v. Hart County Board of Education, Ky., 518 S.W.2d 785 (1974).

The Smiley case, supra, makes it clear that the doctrine of sovereign immunity precludes recovery against a school board. The opinion in Davidson, supra, at 348, reads:

No specific plea of immunity in bar of an action was made by the Department of Highways. However, the answer did assert that the complaint failed to state a claim upon which relief may be granted. We need not decide whether CR 8.03 requires pleading immunity as an affirmative defense. The immunity is such that it may not be waived, except by legislative action. Ky. Constitution, § 231. Certainly the constitutional mandate would be of small stature if its precepts could be “waived” by any state officer or agent other than the general assembly.

The court in the Foley Construction Company case, supra, summarized and analyzed the previous cases concerning sovereign immunity and then concluded:

The review of the cases on sovereign immunity forces the conclusion that such cases as the Watkins and Michael cases and the cases cited therein, insofar as they have permitted the state to be sued on a contract or for damages without express legislative consent, are unsound. To reiterate, the constitutional section in question has always been very explicit. The word “may” in § 231 indicates that suits against the Commonwealth may be brought as a matter of legislative grace. Commonwealth v. Chevis, 4 Ky. Law Rep. 892. Only by authority of an enactment of the Legislature may such suit be brought, and then the manner of bringing a suit and the court in which it may be brought must be directed. To the extent that the cases mentioned are inconsistent herewith, they are overruled. This view renders it unnecessary to consider any other questions presented.

The Court left no doubt about its position on sovereign immunity when the entire text of the per curiam opinion in Smith, supra, reads:

Conceding that the doctrine of sovereign immunity is not above reproach, in view of Foley Construction Company v. Ward, Ky., 375 S.W.2d 392 (1964), it would appear that the appropriate forum for pursuing the fight against it is the General Assembly.

It was error for the trial court to require the appellant to remain a defendant in the action. The defendants, Tammy Combs and Vernon Combs, along with the appellee, were at fault for naming the appellant as a third-party defendant without having legislative permission for this type of action. The portion of the judgment of the trial court that was adverse to the appellant must therefore be reversed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    TURKEN PLUMBING CO., INC., Appellant, v. Thomas A. WOOD et al., Respondents.
    Nos. 37673 to 37678.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 17, 1977.
    Motions for Rehearing and/or Transfer Denied July 21, 1977.
    Coleman, Ross, Carey, Goetz & Schaaf, George E. Schaaf, Clayton, for appellant.
    Richard J. Sheehan, Clayton, for respondents.
   CLEMENS, Presiding Judge.

This appeal concerns the judgments to be entered in six related cases where in open court the parties stipulated the cases were to be passed for settlement. The issue is whether the agreed $13,000 settlement was to be for only one case, as plaintiff contends, or for all six cases, as defendants contend. Defendants prevailed in the trial court and plaintiff has appealed; the appeals are consolidated.

Plaintiff separately sued six defendants to recover for construction goods and services; each defendant counterclaimed. The six cases were assigned to Division 7 of the Circuit Court of St. Louis County. The “Seven Trails West case” went to trial and on the second day a court memorandum was entered in each of the six cases: “Cause Passed for Settlement.” Plaintiff refused to go through with the settlement. Defendants moved for entry of judgments in accordance with their version of the settlements, an evidentiary hearing was held, and judgments were entered as prayed by defendants.

At the post-settlement hearing plaintiff’s president, Edward Turken, testified only the “Seven Trails West case” was to be settled for $13,000 and he refused to go through with settlement when he learned defendants intended to pay only that amount for all six cases. Mr. Turken believed the other five cases were to be settled for an additional $3,500. He had, however, signed six separate memoranda each stating: “Cause passed for Settlement.”

For defendants, plaintiff’s attorney testified all six cases were settled for $13,000; so did defendant Multin and defendants’ attorney. The trial judge so declared and stated his belief plaintiff’s president so understood the overall settlement. These persons were present at trial and at the settlement negotiations. Their testimony was not uniform as to how defendants were to divide the $13,000 but they were positive the settlement was for all six cases. We have also considered the testimony of other witnesses not present throughout the trial and settlement negotiations and find it does not refute defendants’ evidence.

We find the evidence supports the trial court’s conclusion that the parties intended to settle all six lawsuits for $13,000. In Landau v. St. Louis Public Service Company, 364 Mo. 1134, 273 S.W.2d 255[1, 6] (1954) the court ruled that the terms need not be written in an in-court stipulation to settle. We ruled in Wenneker v. Frager, 448 S.W.2d 932[1—3] (Mo.App.1969): . an open court agreement to settle a pending lawsuit, accompanied by a stipulation that the cause be passed for settlement, terminates the cause of action and creates a new obligation warranting a judgment in accordance with the terms of settlement.”

We conclude the trial court correctly construed the parties’ agreement and entered judgments accordingly.

Judgments affirmed.

DOWD and WEIER, JJ., concur.


author: SMITH, Presiding Judge.

text:
    LAFAYETTE PARK BAPTIST CHURCH, a corporation, Appellant, v. Alden SCOTT, Clarence Ax, Martin Beffa, Dennis Bahlinger, and Charles Baker, as members of and constituting the Board of Adjustment of the City of St. Louis, and Michael Werner, Acting Building Commissioner of the City of St. Louis, Respondents.
    No. 37459.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 24, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.

      Albert E. Schoenbeck, Stephen M. Scho-enbeck, St. Louis, for appellant.
    Edward M. Peek, Associate City Counsel- or, P. J. Wunderlich, St. Louis, for respondents.
   SMITH, Presiding Judge.

Appellant appeals from the denial by the trial court of a writ of certiorari to review the decision of the Board of Adjustment of the City of St. Louis denying appellant a permit to demolish a building located on appellant’s real property. The property is located within the boundaries of the Lafayette Square Historic District created by a city ordinance.

The appellant is a church. In September 1973, it acquired the property in question at a foreclosure sale at which it was the only bidder. The subject property adjoins the church property and was acquired for conversion into a parking lot for use by church members attending services and meetings. The real estate contains a 2V2 story building, denominated a “double entry town house.” The structure contains six apartments, all vacant for some period of time before the church purchased the property. It is in a serious state of disrepair, which will be discussed more fully later,

After acquiring the property, the church contracted to have the building demolished. The contractor applied for a wrecking permit, and in December 1973, the Landmarks and Urban Design Commission of the City recommended that the Building Commissioner deny the permit. This was the first actual knowledge the church had that the property was within the Historic District or the restrictions on demolition contained therein. Since, however, the ordinance was in effect from June 20, 1972, the church had constructive knowledge and its absence of actual knowledge is of no consequence.

In March 1974, the church was granted a hearing before the Landmarks and Urban Design Commission, and presented evidence in support of the demolition permit. The Commission again voted to deny the permit. The church then appealed to the Board of Adjustment of the City of St. Louis which held a hearing. Reference to the evidence at that hearing will be made later. On May 30, 1974, the Board entered its Findings of Fact, Conclusions of Law and Order, and sustained the action of the Building Commissioner in denying the permit.

Those portions of the Board findings pertinent to our decision are:

“8. The subject building is a double-entry townhouse, one of only two existing in the area. It was constructed at approximately the same time as the other buildings in the area and therefore is of significant historic and architectural value. Although the building is in an extreme state of deterioration, due to lack of maintenance and misuse in the past, there does not appear to be any significant structural weakness.
“9. Page 37 of the Lafayette Square Restoration Plan includes a paragraph on the subject of ‘demolition of selected dilapidated buildings,’ which states in pertinent part, ‘. . . vacant buildings whose structural conditions have degenerated beyond feasible limits for rehabilitation have been listed with the Building Commissioner’s Office.”
“Conclusions of Law and Order
“It is the Decision of the Board of Adjustment, based upon the competent and substantial evidence adduced, that the structure in question, although in need of extensive rehabilitation, has not degenerated structurally beyond the feasible limits for rehabilitation, in light of its historic and architectural significance . . .”

Appellant’s writ of certiorari to the Circuit Court followed in due course, and after judgment upholding the Board this appeal followed.

We deal for the first time in this state with an historic district ordinance designed to protect the integrity and continue the existence of neighborhoods having a distinctive cultural or historic heritage. Appellant, possibly because of its own interest in preserving the neighborhood in which it is located, has eschewed a frontal attack upon the constitutionality of the ordinance, and has admitted the ordinance is within the constitutional, statutory and charter powers of the City. It limits its attack rather to a charge of unconstitutional application as to the particular property involved, misapplication by the Board of the standards established by the ordinance, refusal by the Board to determine whether a variance should be given for “practical difficulties or unnecessary hardships,” and a lack of evi-dentiary support for the Board conclusion that the structure could be rehabilitated.

The Lafayette Square Historic District is the product of two ordinances. The first, 56100, effective February 14, 1972, established the procedure for establishing an historic district. The purpose of this ordinance was stated to be “to promote the safety, morals, and general welfare of the public, including specifically its educational and cultural welfare through: (1) The protection, enhancement, perpetuation and use of buildings, structures, parks, sites and items of natural and artificial phenomena located within a district which imparts a distinctive aspect to the City of St. Louis by serving as a visible reminder of the historic, architectural and cultural heritage of the City, the State of Missouri and the Nation;. . ."

The ordinance requires the preparation of a plan for development of the district and public hearings concerning the proposed district. The ordinance further provides that building permits, which includes demolition, shall be granted or refused only after review by the City Plan Commission and consideration and determination by the Landmarks and Urban Design Commission. Action by those bodies “shall be consistent with the standards set forth in the ordinance with development plan creating the subject Historic District.”

Pursuant to this grant of authority, the Lafayette Square Historic District was created by ordinance 56247, effective June 30, 1972. After reciting the requisite findings of historic, architectural and cultural value of the Lafayette Square area the ordinance set out the legal description of the area and designated it an historic district. Section 2 of the ordinance set forth the standards to be applied within the district as follows:

“The proposed standards to be applied within the district including but not limited to facades, setbacks, height, scale, materials, color and texture, for all structures and the design details of all fences, streets and drives, street furniture, signs and landscape materials are set out in the ‘Development Plan for the Lafayette Square Historic District’ approved by the City Plan Commission April 17, 1972 . which is hereby adopted and incorporated herein by reference. . ."

The “Development Plan” referred to in the ordinance is a 20 page document plus maps. It includes several pages of Proposed Use, Construction and Restoration standards. None of these deal with standards for demolition of structures within the District. However, the Development Plan in turn incorporates by reference sections of the “Lafayette Square Restoration Plan, St. Louis City Plan Commission, Fall 1971.” That plan contains three provisions which could logically be considered to bear upon the church’s request to demolish. Those are:

1. “Existing structures are to be removed only when their conditions are judged to be beyond rehabilitation or to accommodate important elements of the neighborhood plan. Extreme efforts must be taken to retain the existing structures, maintain continuity and preserve the streetscape.”
2. “Property between the homes along Lafayette and Interstate 44 is the only place where new multi-family construction would be appropriate. Combined with adequate parking and open space, it could form a transitional buffer between the highway and the rest of the neighborhood.” [The property in question is located in the area described.]
3. “Demolition of Selected Dilapidated Buildings
“Dilapidated buildings have a major demoralizing effect on the neighborhood and are a safety hazard from the standpoint of fire, crime and injury to children. Vacant buildings whose structural conditions have degenerated beyond feasible limits for rehabilitation have been listed with the Building Commissioner’s office. Every effort should be made to have them removed as soon as possible, under the City’s demolition program. It is extremely important that other vacant structures not be allowed to further deteriorate or be demolished.” [There is no evidence of record whether in fact such a list was filed in the Building Commissioner’s office and if so whether the structure at issue was listed.].

It is apparent that the Board of Adjustment made a determination that the building had not deteriorated structurally to a point where it was not feasible to rehabilitate it. Based upon the evidence and the Board’s findings and order, it appears that this determination was based upon a finding of technological feasibility without regard to economic factors. As such it is contrary to the standards established if those standards are interpreted in a way to save them and the ordinance from unconstitutionality.

While no court decision in this state has dealt with an historic district ordinance we are not completely without guidelines. Decisions have been rendered from several other jurisdictions. Additionally, such an ordinance is essentially a zoning ordinance and Missouri courts have frequently determined the validity and scope of those. It is important to note, however, one aspect of the historic district ordinance which makes it markedly more restrictive than the normal zoning ordinance. Under the usual ordinance, the use to which the property may be put is limited, but the landowner has a freedom within those limitations to erect the type of structure he desires subject to certain general guidelines. Under an historic district ordinance, the landowner is limited solely to the use he can make of the specific structure already located on the land. It is the essence of such ordinances that such structures are not to be removed or substantially altered in outward appearance.

The validity of a zoning ordinance is determined by whether the restriction imposed bears a substantial relation to the public health, safety, morals, or general welfare. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778 (banc 1952) [2]; Huttig v. City of Richmond Heights, 372 S.W.2d 833, 839 (Mo.1963) [2]. Historic district ordinances frequently have several bases for enactment. They serve to preserve culturally and historically important aspects of the life of the locality, state or nation. They sometimes serve to preserve areas which are tourist attractions to the economic benefit of the community. They also can serve an important public function in protecting and preserving definable neighborhoods threatened with urban blight. In so doing, they can provide viability and strength to the urban community as a whole. It is apparent from the record before us, that the primary purpose of the Lafayette Square Historic District ordinance was the preservation and protection of a neighborhood with a clearly identifiable history and culture, which was in imminent danger of decay, dilapidation and destruction. This ordinance was clearly in the best interests of the general welfare of the City of St. Louis.

However, “ ‘A zoning ordinance may be valid in its general aspects, and yet as to a particular state of facts involving a particular owner affected thereby may be as to such owner so clearly arbitrary and unreasonable as to be unenforceable.’ ” Flora Realty & Investment Co. v. City of Ladue, supra at 778[4, 5], quoting Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., 58 F.2d 593, 599 (8th Cir.1932). See also Huttig v. City of Richmond Heights, supra at 838-39[2].

The burden of proving unreasonableness is upon the person challenging the reasonableness of the ordinance as it pertains to a specific property. Tealin Company v. City of Ladue, 541 S.W.2d 544, 548 (Mo. banc 1976); Vatterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.1971). Reduction in value of the property because of the ordinance does not alone establish unreasonableness. Tealin Company v. City of Ladue, supra at 549[1]; Huttig v. City of Richmond Heights, supra at 840[3]; Flora Realty & Investment Co. v. City of Ladue, supra at 779[8]. Yet economic considerations cannot be totally discounted. There are limits to the extent to which the owner of property may be compelled to bear the cost of improving the general welfare. It is certainly recognized that property may not be zoned so as to prevent any effective use, because such a regulation becomes an unlawful confiscation. Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324 (Mo.App.1976) [2]; Huttig v. City of Richmond Heights, supra at 841[3]; First Presbyterian Church of York v. City Council of York, 25 Pa.Cmwlth. 154, 360 A.2d 257, 261 (1976) [1,2]; Maher v. City of New Orleans, 516 F.2d 1051, 1065 (5th Cir. 1975) [20]; Fred F. French Inv. Co., Inc. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 10-11, 350 N.E.2d 381, 386-387 (1976) [8]. If the general welfare demands that property be subjected to a burden of no effective use, then the City and the public must bear that burden through condemnation.

In view of these principles it is necessary that the standards established governing demolition in an historic district take into account the economic impact upon a given parcel where demolition is sought. It is not necessary that the standards be unduly rigid or specific, “so long as they are capable of a reasonable application and are sufficient to limit and define the Board’s discretionary powers.” City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13, 18 (1964) [10, 11]. And these standards may achieve certain of their meaning from the observable character of the district to which they apply. Maher v. City of New Orleans, 371 F.Supp. 653, 664 (D.C.La.1974) [7]. The Development Plan and the Restoration Plan for Lafayette Square set out in considerable detail the general, and in some cases, specific guidelines and standards to be applied by the board in passing upon building permit requests.

As to demolition, we have heretofore set forth the language of the Restoration Plan pertaining to that subject matter. As it pertains to this case, it provides that structures are to be removed “only when their conditions are judged to be beyond rehabilitation.” It is further stated that the area in which the subject property is located is a place where new multi-family construction would be authorized and such construction should be combined with adequate parking and open space. In addition, the Restoration Plan specifically declares that dilapidated buildings are a demoralizing influence constituting a safety hazard from fire, crime, or injury to children. While the statement goes on to say that vacant buildings whose structural condition has deteriorated beyond feasible limits for rehabilitation have been identified, no evidence that such identification listing was before the board is contained in the record. It is also obvious that such a statement in the Restoration Plan cannot serve to preclude demolition of buildings which achieve the requisite state of structural decay after the preparation of such initial list. The standards of the Plan clearly call for demolition of vacant, dilapidated buildings which constitute a fire, safety or crime hazard, regardless of when that condition is reached.

From what we have heretofore said it is also apparent that for the standards to meet constitutional objections, they must be interpreted to authorize demolition when the condition of the structure is such that the economics of restoration preclude the landowner from making any reasonable economic use of the property. The decision of the City authorities cannot be based simply upon a determination that it is physically possible to save the structure at an expense unwarranted by the possible use which could be made of such structure after rehabilitation. Such a determination would place upon the landowner the obligation to expend his money, not for his benefit, but for that of the public, or alternatively to forego any use of the land for the foreseeable future. Neither alternative can be compelled under the police power of the State in the absence of condemnation.

We turn to the evidence elicited at the hearing. The only evidence of the cost of rehabilitation is that it would exceed $50,-000. The only evidence was that this cost was economically unwarranted for the end product which would result. The only specific evidence of the condition of the structure was presented by Mr. Leon Spotswood, a structural engineer and architect. He testified that due to neglect of previous owners, the building is in unsafe condition and should be condemned before someone is hurt. The front wall should be replaced entirely, the back stairs are rotten and dangerous and should be replaced, the roof is decaying and should be removed, some rafters are decaying from leakage through the roof, some weight bearing walls are bulging, some floor joists are deteriorating, all windows should be replaced, all doors should be replaced, brickwork needs tuck-pointing, cornices and stone window sills are broken away, walls are cracked, some bricks have fallen out of an outside wall, guttering and downspouts have or are falling off the building, all electrical fixtures and sockets have been removed, wiring is in bad shape, there is no plumbing or plumbing fixtures, fireplaces have been removed, basement floor is cracked, all wood surfaces need painting, the walls, ceilings, floors, doors and windows are in “horrible condition,” floorboards are missing, and doors are missing. He did state the foundation was in “pretty good shape.”

There was testimony by an architect who is the chairman of the Landmarks and Urban Design Commission of the City that the building is architecturally significant. He also disputed that the building was structurally unsound because he saw no evidence of “structural or brick bearing wall deficiency that would indicate the building is about to fall on its own accord.” He admitted the best judge of structural soundness is an engineer and he did not state whether he had actually examined the building or only photographs of it.

The remaining evidence dealt either with the activities of the church and its needs, or the efforts and activities of residents of the area to rehabilitate other structures in the district and their desire that demolition of the structure not be allowed because of the effect upon the district as a whole. This is a legitimate consideration, Maher v. City of New Orleans (both cases), supra, but cannot serve as the sole basis for refusing demolition. The voluntary actions of these landowners does not warrant imposing similar conduct on another landowner or precluding his effective use of his property.

We find that the Board applied an improper standard in determining whether a demolition permit should be granted by considering only technological feasibility and not economic feasibility. Whether factually the structure meets the proper standard for demolition is a decision for the Board for which we may not substitute our judgment. It is therefore necessary for us to remand this case to the Board for its determination under the proper standards.

This disposition makes it unnecessary for us to rule the church’s remaining contentions. We must, however, note those contentions and their applicability to further proceedings. It is possible that a factual determination that the building does not qualify for demolition under the standards of the district as a whole could be made. Such a finding might still place the individual owner in a position where as to him and his property the application of the standards is unreasonable and contrary to his constitutional rights. Relief from such a situation can be given under the general hardship provision of the zoning laws. If not, a landowner may still seek a determination that the ordinance is unconstitutional as to him because it unreasonably restricts his use of the property beyond permissible limits. In historic district cases the courts have required the landowner to establish that not only can he not economically utilize the property, but that it is impractical to sell or lease it, or that no market exists for it at a reasonable price. See Maher v. City of New Orleans (both cases), supra, 371 F.Supp. at 662[4, 5] and 516 F.2d at 1066[22, 23]; First Presbyterian Church of York v. City Council of York, supra at 260. The latter test would appear to require proof that no purchaser can be obtained willing to pay the value to the landowner of the land after demolition minus the cost of demolition. Where a landowner is unable because of his own financial status to rehabilitate the property even within reasonable economic limits and is unable to dispose of the property at a reasonable price, enforcement of the ordinance would practically serve to confiscate his land. Since, however, the public welfare sought to be protected by historic district ordinances could, of course, be accomplished by condemnation, the landowner is protected if he is able to sell the property for its reasonable value without regard to the nondemolition features of the ordinance.

Since we have ruled that the Board failed to apply the proper standard, it is unnecessary to rule or comment on the church’s contention that even under the standard applied by the Board the finding was contrary to the evidence.

We are sympathetic with the serious problems of neighborhood deterioration and blight common in our large urban communities. We are also sympathetic with and commend the efforts of responsible landowners to prevent such deterioration and blight through neighborhood associations devoted to improvement, rehabilitation and preservation of these neighborhoods. We also recognize the sincere efforts of urban leaders and elected officials to provide legal methods for such preservation. We further believe courts must be responsive to these efforts and within the framework of the law support such efforts albeit the approach is novel or innovative. But neither the courts nor the governmental entities involved should ignore the warning issued by Mr. Justice Oliver Wendell Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922):

“We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

The cause is reversed with directions to the trial court to remand the cause to the Board of Adjustment for further proceedings consistent with this opinion.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . The church makes no attack upon the double reference technique used.

      . See, e. g., City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 (1941); Maher v. City of New Orleans, 371 F.Supp. 653 (D.C.La.1974) aff'd, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976); Opinion of Justices to Senate, 333 Mass. 773, 128 N.E.2d 557 (1955); City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); Town of Deering ex rel. Bittenbender v. Tibbetts, 105 N.H. 481, 202 A.2d 232 (1964); Penn Central Transportation Co. v. City of New York, 50 A.D.2d 265, 377 N.Y.S.2d 20 (1975); First Presbyterian Church of York v. City Council of York, 25 Pa.Cmwlth. 154, 360 A.2d 257 (1976).


author: ALDEN A. STOCKARD, Special Judge.

text:
    William R. HALL, Appellant, v. Mary N. HALL, Respondent.
    No. 37636.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 24, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.

      Paul Brackman, Clayton, Justin C. Cor-donnier, St. Louis, for appellant.
    Martin Schiff, Jr., Webster Groves, for respondent.
   ALDEN A. STOCKARD, Special Judge.

William R. Hall appeals from the decree of dissolution entered under the Dissolution of Marriage Act, §§ 452.300-452.415, Laws of Missouri 1973, effective January 1, 1974.

Respondent has filed in this court a motion to dismiss the appeal on the basis that the notice of appeal dated November 24, 1975 was not timely. We need not rule that contention. On December 12, 1975, pursuant to a request by appellant, and as authorized by Rule 81.07(a), this court issued its special order permitting appellant to file a late notice of appeal which was done within the time authorized. The motion to dismiss the appeal is overruled.

Neither party contends the marriage was other than irretrievably broken, and neither challenges those portions of the decree relating to child custody and the division of marital property. Appellant asserts, however, that (1) the court erred in ordering him to pay “any maintenance,” and in the alternative, if the payment of some maintenance was proper, then the court “grossly abused” its discretion in awarding maintenance in the sum of $700.00 per month; and (2) the court “grossly abused” its discretion in awarding the sum of $430.00 per month for each of the three minor children as child support.

The parties were married in 1957, and separated in August 1974. Prior to trial they agreed on the division of the marital property. The judgment of the trial court awarded respondent certain specified items of property, and then awarded to appellant “the balance of all marital property, subject to any and all indebtedness thereon.” That division of the marital property, as itemized in appellant’s brief, is as follows:

Appellant
Assets
1,700 shares of Kearney National $ 8,075.00
1,304 shares of Louisiana & Southern Life Ins. 3,580.00
Powers, Carpenter & Hall stock 27,130.00
Treasury Bill 40,000.00
Miscellaneous stock 8,000.00
One-Half Tax Refund
Oil Leases 1.220.00
$88,005.00
Debts
Boatman’s Bank $24,430.00
Note to R. W. Powers 11.900.00
$36,330.00
BALANCE $52,675.00
Respondent
Assets
Family residence $40,000.00
Furniture, furnishings, fixtures and appliances 5,000.00
Prudential Federal Savings and Loan 11,700.00
Lafayette Federal Savings & Loan 1,200.00
One-Half Tax Refund —
1968 Pontiac Automobile —
$57,900.00
Debts
House Mortgage $15,000.00
BALANCE $42,900.00

Appellant listed the Treasury Bill in a financial statement filed with the court at $50,000.00. He testified however, that it is “actually $40,000.00.”

We find no reference in the final judgment to an award to respondent of the Lafayette Federal Savings & Loan account in the amount of $1,200.00, and as previously noted the “balance of all marital property” not specifically awarded to respondent was awarded to appellant. We note that neither appellant nor respondent listed this account in their itemized statement of “cash and deposit accounts.” Respondent referred to it in her testimony when she stated that at one time subsequent to the separation she used some of her account at “Lafayette Federal” to meet expenses, but there is no explanation of its source. We also note that in the judgment of the court entered on July 31, 1975, “the individual savings account of respondent at Lafayette Federal Savings & Loan Assn” was awarded to respondent, but without explanation this award was not made to respondent in the final judgment dated November 4, 1975. If this Savings and Loan account is not marital property, (but appellant lists it as such in his brief and there is no challenge, to this listing by respondent), the court did not “set [it] apart” to respondent as such, as contemplated by § 452.330. We consider that the parties agree that this account is the property of respondent.

Most if not all of the items of marital property awarded to appellant are in fact or potentially income producing. On the other hand, the largest item of marital property awarded to respondent is the house and its contents which is not income producing.

Appellant is employed by Powers, Carpenter and Hall, Inc., a consulting firm for various insurance plans, and by reason of the withdrawal of one of the members of the firm and the purchase of his stock, appellant now owns fifty percent of the corporate stock. For the four years immediately prior to the separation of the parties, appellant’s income was as follows:

Year Adjusted Gross Net
1971 $75,431.00 $50,000.00
1972 87,343.00 59,000.00
1973 87,912.00 57,000.00
1974 81,000.00 54,000.00

During each of the above four years Powers, Carpenter & Hall, Inc. paid into a profit sharing plan for appellant’s benefit approximately $11,000.00. The company also provided certain other benefits including $45,-000.00 for “Employee Life Insurance,” life insurance in the amount of $5,000.00 on respondent and $1,000.00 on each child, “accidental death benefits” in the amount of $160,000.00, “long term disability benefits” to a maximum of $1,200 a month, and a comprehensive medical care plan for himself and “family” with a medical reimbursement plan for sums not covered-“up to a certain amount.” The company also furnished appellant a leased automobile, “reasonable” entertainment expenses, and it pays his dues at the St. Louis Club.

During the “bulk” of the marriage respondent was not employed. There is no evidence concerning her training or experience, except some qualifications may be presumed by reason of the fact that approximately one month after the separation she obtained employment as a teacher’s assistant at the North Glendale School in the Kirkwood system at a salary of $250 a month which resulted in a take-home pay of $195 a month. At the time of trial she had obtained new employment, but had not started to work, as a teacher at the Ross-man School with a salary of $583.00 a month which would result in approximately $430.00 a month take-home pay. The North Glendale School was within walking distance from her home, but the Rossman School is a sufficient distance from her home to require transportation.

At the time of trial, July 1975, the parties’ three children were 17,15, and 11 years of age. The two oldest were enrolled in a private school. The oldest, a girl, would complete the 12th grade, in June 1976. She planned to go to college and had discussed those plans with her father. The boy had three more years of high school, was a good athlete and particularly as a tennis player, a sport in which appellant actively participated and in which he encouraged his son to participate. The son played in various tennis tournaments, and appellant admitted that “in the past” his participation required a “substantial amount” of money. The youngest child, was entering her last year of elementary school at a public school. Appellant testified that he was “not sure” if he planned the same type of education, that is, at a private school, for her, but the deciding factor would be “money.” He stated that she was a “fine little athlete” and showed “quite a bit of polish at track.”

Prior to trial both parties filed financial statements of their estimated income and expenses. Appellant’s estimated monthly income after taxes was $4,098.23. His estimated monthly personal expenses were $3,795.94. This amount included $500 for an apartment including utilities, $200 for “car operation, maintenance, repair and insurance,” $1,350 to respondent for maintenance and child support pursuant to an order of the court, and $100 to his mother. It also included $250 for food, $40 for a maid, and $125 for “vacation with children.” Expenses “for children only,” apparently in addition to child support, were listed at $20 a month for medical and dental and $50 for recreation. The last two items for the children brought the monthly total to $3,865.94. There is no explanation for the $200 monthly item for automobile expenses in view of appellant’s testimony that his employer furnished him “maintenance and car expenses,” or why some or all of the medical expenses were not covered by the comprehensive medical plan provided by appellant’s employer.

Respondent’s gross wages were $250 a month, or a net of $195. Her estimated monthly personal expense was $1,325. We note several items. Her monthly automobile expense was listed at $57 as compared to $200 by appellant, and her estimate for food for herself was $50 a month as compared to appellant’s estimate of $250 for himself. In fact, her estimate for food for herself and the three children was only $200 a month, or $50 less than appellant’s estimate for food for himself alone. She also included an expense item of $217 a month to maintain her mother in a rest home, and her estimate for utilities (water, electricity, gas, telephone) was $87. Her estimate of the monthly expenses for three children, other than school tuition, was $515. Tuition at the private school for the two older children was estimated at $400 a month by respondent in the statement of expenses, but she testified that it averaged $450 a month.

At the trial, respondent testified that after the separation appellant gave her $2,070 a month, from which she paid the bills and maintained the house, but the “large bills” were paid from savings. This continued until January 1, 1975, when appellant reduced the amount to $1,000.00, but upon application the court ordered payment to her, pending final judgment, of $1,350 which consisted of $600 maintenance and $750 child support. Respondent testified that this was not sufficient to meet all expenses and it was necessary to use $1,400 from the Prudential Savings and Loan Account and some from Lafayette Savings & Loan. Respondent also expressed the need for a second automobile since she would be working full time at a place too far from home to walk, and the numerous activities of the children required transportation for them. Her testimony concerning some of her estimates of expenses is not clear in that it cannot be determined with certainty what is and what is not included. However her final estimate was that her expenses for herself and the children would be $2,050 a month, and when tuition for the private school was included the total would be approximately $2,500 a month.

The trial court did not make specific findings of fact, but by its final decree awarded respondent maintenance in the sum of $700.00 a month and $430.00 per month as support for each child, or a total of $1,990.00.

Pursuant to the scope of our review as set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

As pointed out in Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977) (April 5, 1977), § 452.335 now controls questions of maintenance in dissolution of marriage proceedings, and it constitutes a marked departure from the prior concepts pertaining to alimony. The statute directs that “the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment * * The term “reasonable needs” is not defined in the statute, but in the Brueggemann case it was pointed out that factors relating to fault (except as to the conduct of the party seeking maintenance) are eliminated from consideration, and that the provisions in the statute relating to earning capacity of the spouse seeking maintenance and the division of the marital property as the principal means of providing for the reasonable needs, indicate an emphasis on the self-sufficiency of both parties following the dissolution. It was recognized, however, that in a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as a guide in computing the spouse’s reasonable needs. It is specifically directed by § 452.335 that the court consider the earning capacity of the spouse seeking maintenance and the division of property, and in the Bruegge-mann case it is stated that “the focus on our statute seems more specifically on income-producing property.”

Of the marital property awarded to respondent, only the Prudential Federal Savings and Loan account and the Lafayette Savings & Loan account are income producing. These accounts if maintained at the amounts shown at the time of trial would produce approximately $65 a month. Respondent received the previously shared residence of the parties with an indebtedness of $15,000, and the interest on that amount, which respondent is to pay, more than offsets the income on the Prudential and Lafayette accounts. There is no net income from the marital property awarded to appellant.

In his brief appellant makes no challenge to the items of personal expense respondent listed for herself, except the payment to her mother. But as previously noted, in his statement of monthly expenses he listed a payment to his mother. In an attempt to demonstrate that there should be no award to respondent for maintenance, appellant takes the sum of $1,325.00, the total of expenses listed by respondent on her statement of income and expenses filed with the court prior to trial, and then subtracts therefrom $429, which he asserts is three-fourths of the expenses for maintaining the house. This should be subtracted, he says, because the total cost of maintaining the house should be allocated equally between respondent and the three children. We note, however, that in his subsequent discussion concerning the award for support of the children, there is no concession that any award for child support should be increased by this amount. We consider it the responsibility of the parent having custody, in this case the respondent, to provide the home for the children, and all the reasonable expenses of that home constitute reasonable needs of respondent.

We decline to rule in this case whether, as a matter of law, payments by a spouse of the nature made by respondent for the benefit of her mother can in no event constitute a part of “reasonable needs.” We find the award for maintenance not to be improper when that expense item is excluded from respondent's “reasonable needs.”

The items of expense of respondent which appellant does not challenge, that is $1,325 a month less $217 for respondent’s mother, results in the “reasonable needs” of respondent being $1,108 a month. Accepting the principle that these needs should be met by respondent if possible, we subtract $430 therefrom, her take-home pay from employment, and the result is $678, the additional amount per month necessary for respondent to meet her “reasonable needs.” This does not take into consideration that in her testimony at trial, respondent’s estimates of her expenses were greater than she had previously listed them on the statement. Of course, the court was not bound by her earlier estimates, and we do not know on which estimate its award of maintenance was based. The court made an award of $700 a month for maintenance. This is $22 more than respondent’s pretrial estimate but apparently would be less than her estimate at trial. In matters of this nature, the court cannot be expected to make an award to the precise dollar, and the award made is within a reasonable tolerance of the proof. Not only was the court authorized to make an award of some maintenance, we find no abuse of discretion in the amount of the award that was made.

Appellant concedes in his brief that “His income, compared to Respondent’s, justifies a finding that he is the proper party to support [the] children.” In his argument, however, he does not set forth specific objections to any of respondent’s items of expense, except that “respondent if she wishes may decide to have her son complete his high school education” at a private school, “but Appellant should not be required to pay the costs of an education he does not personally believe to be proper or necessary.” We note here that appellant testified that he was the one who originally enrolled the older girl and the boy in the private school, and absent some showing of hardship on appellant, and there is no such claim, we see no reason why the trial court was not justified in making an award for child support to complete the education program started by appellant.

This does not however, result in the award of $430 a month for child support for each child being proper. Respondent shows necessary expenses for the three children, other than school tuition, at $515 a month. This is an average of $171.66 a month per child. The youngest child attends a public school where there is no tuition, and in view of the evidence we do not see how an award of $480 a month for her can be justified. The other two children have a tuition of $225 a month each, which would result in a total monthly expense for each of $396.66. It is true that the oldest girl has now graduated from the private school, but the award is based on the facts before the court at the time the award was made, and the award continues until modified or changed by the court. Also the court could take into consideration that the older girl would have additional or other expenses at college, and the award made could have been fashioned on that basis.

In view of the evidence an award for support for the youngest child, with a reasonable allowance for the uncertainty in the estimates, can not be justified in excess of $200 a month, but the awards for support for each of the two oldest children, with said reasonable allowances, clearly was within the discretion of the trial court.

The cause is remanded to the trial court with directions to set aside the award for support for the youngest child in the amount of $430, and enter an award in the amount of $200 as of the date of the final judgment from which the appeal was taken, and as amended the judgment is affirmed.

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

      . Respondent testified that she had been paying $209 a month but that the rate was to be increased $18 a month.


text:
    Lloyd UNDERWOOD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37725.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 24, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.

      Carter & Becker, P. C., Charles F. Du-Four, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., John A. Newton, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Movant Lloyd Underwood appeals the circuit court post-hearing judgment denying his Rule 27.26 motion.

June 7, 1971 movant had pleaded guilty to second degree murder. Movant had been in the St. Louis County jail pending trial on an armed robbery charge when he and a fellow inmate attempted to escape and a guard was killed.

Before accepting the guilty plea, the court questioned movant in detail to determine his understanding of the proceedings. The court fully informed movant of his rights and the effect of pleading guilty. Movant acknowledged as conditions of the plea negotiations that the state would dismiss other pending charges. He told the court he had not been threatened or promised anything to plead guilty and related his prior criminal record. The court questioned movant about use of alcohol and drugs. He answered that he was not addicted but admitted he had used narcotic drugs in the past, saying, “But I am not now.” Despite numerous opportunities movant declined to change his mind about pleading guilty.

By his Rule 27.26 motion movant contends his guilty plea was made out of fear and coercion, was made under the influence of drugs and was made involuntarily.

Movant now contends the post-conviction trial court erred by: (1) allowing his trial counsel to testify as to his mental status, (2) finding movant was not under the influence of drugs and (3) finding his guilty plea was not induced by physical force. Our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

By his first point, movant claims error in admitting his trial counsel’s testimony regarding his mental status before and at the time of his guilty plea. His two-fold argument: the information was privileged and trial counsel was not a qualified witness.

We deny movant’s contention of privilege. Counsel’s testimony did not disclose any private communications but merely stated his observation of movant’s mental status before and during the plea of guilty. No error here. Further, even if privileged, movant waived it by raising the issue of his incompeteney.

We also deny the second prong of movant’s argument and hold his trial counsel was qualified to testify to movant’s mental capacity. A lay witness may testify as to another’s mental condition if the opinion is based on adequate observation and the witness relates specific facts to support the opinion. Gillmore v. Atwell, 283 S.W.2d 636[5] (Mo.1955). Counsel and movant had “spent considerable time together” and counsel had sufficient opportunity to observe movant’s mental condition. We hold counsel was a qualified lay witness.

By movant’s next point he contends the trial court erred in finding he was not under the influence of drugs when he entered his guilty plea. At the plea proceedings movant denied being on drugs but at the evidentiary hearing testified he had taken 15 pills and was experiencing a “high” on the day he entered his guilty plea. His testimony was vaguely corroborated by several jail inmates. Movant now points out that the state offered no contrary evidence. In a Rule 27.26 evidentiary hearing the trial court has the right to reject movant’s uncontradicted testimony Griffin v. State, 513 S.W.2d 706[6, 7] (Mo.App.1974).

Here, the record of the guilty plea proceedings abounds with signs of movant’s comprehension. The trial court was not clearly erroneous in finding movant was not under the influence of drugs when he pled guilty.

Finally, movant contends the trial court erred in denying his point that his plea was induced by physical force. At the time he pled guilty movant said he was not threatened. At the evidentiary hearing movant and fellow prisoners testified to incidents of brutality by jail guards, but the guards denied this.

The weight of the evidence and credibility of witnesses are for the trial court to decide. State v. Taylor, 529 S.W.2d 427[1] (Mo.App.1975). On review of the denial of movant’s Rule 27.26 motion, we accord due deference to the trial court’s determination of credibility, and since we find no abuse of discretion we accept that decision. Kessler v. State, 524 S.W.2d 221[3] (Mo.App.1975).

Judgment affirmed.

DOWD and SMITH, JJ., concur.

      . See Clanton v. United States, 488 F.2d 1069 (5th Cir. 1974) following United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964).