author: WEIER, Chief Judge.

text:
    Frank Groom KIRTZ and Mary Jane Kirtz, Plaintiffs-Appellants, v. ADVANCED INSTRUMENTS, INC., Defendant-Respondent.
    No. 39265.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.

      Joseph L. Badaracco, St. Louis, for plaintiffs-appellants.
    Lashly, Caruthers, Thies, Rava & Hamel, Edward D. Weakley, John Fox Arnold, St. Louis, for defendant-respondent.
   WEIER, Chief Judge.

Plaintiffs Frank Groom Kirtz and Mary Jane Kirtz filed suit under § 351.455, RSMo. 1969, as objecting minority shareholders to the merger of Med-Science Electronics, Inc., into Advanced Instruments, Inc., the defendant in this cause. As alleged in the petition, the plaintiffs were owners of 22,-500 shares of common stock in Med-Science Electronics, Inc.; they were not in favor of the merger; they served a written objection upon Med-Science Electronics, Inc., prior to the meeting of the shareholders called to vote upon said merger and they made a written demand for payment of the full value of their shares to the company as of the day prior to the date on which said vote was taken approving the merger. The prayer of the petition called for a judgment for the full value of plaintiffs’ shares in Med-Science Electronics as of the day prior to the date on which the vote was taken approving the merger together with interest from that date to the day of judgment.

At the conclusion of the trial, the court awarded plaintiffs $62,100 for the full value of their minority stock ownership with interest in the amount of $13,424, aggregating $75,424. The plaintiffs were ordered to deposit with the court an assignment of their stock to be delivered upon the payment by the defendant of the sums awarded into court. Plaintiffs and defendant filed after-trial motions and upon them being overruled, the plaintiffs appealed.

Plaintiffs now urge this court to reverse the lower court because of error in four particulars. The first contention advanced charges that the court below erroneously refused to appoint a receiver to liquidate Med-Science Electronics, Inc., at fair market value and to set aside the merger with Advanced Instruments, Inc., the successor corporation. As a basis to support their request for this receivership, it was alleged that the majority stockholders, Mr. and Mrs. Blanton C. Wiggins, who are also the principal officers and directors, fraudulently conveyed the entire property including plaintiff’s minority interest to themselves in violation of their fiduciary responsibilities and duties as officers and directors.

There are several reasons why we cannot convict the trial court of error based upon this contention. In the first place, the judgment of the court was entered on February 22, 1977. Plaintiffs filed a motion to reconsider the determination of fair market value on March 4, 1977, but the first time any pleading was filed in the case in which any fraud was alleged and the appointment of a receiver was sought was on March 21, 1977. Plaintiffs then filed a motion for rescission of charter forfeiture and application for appointment of a receiver. Any motion after the trial, however, must be filed within fifteen days after the entry of judgment in a court-tried case. Rule 73.01.-1(c). Although the trial court retains control over judgments during the thirty-day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time, Rule 75.01, such a second motion as this, not made in the time allotted for a motion for new trial, is considered a mere suggestion to the trial court to exercise its discretion within the thirty-day period specified in Rule 75.01. State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 202[3] (Mo.App. 1976). Secondly, this case was brought under § 351.455, RSMo.1969, supra, for the sole purpose of establishing the fair market value of the shares held by the plaintiffs and sought a judgment against defendant for the value of plaintiffs’ stock together with interest thereon. By coming in with this motion after the case was tried and after judgment was rendered, plaintiffs attempt to engraft a fraud case mainly directed against Mr. and Mrs. Blanton C. Wiggins who are not parties to the instant suit and by reason of said alleged fraud then request the appointment of a receiver to take over the assets of Med-Science Electronics, Inc., after invalidating its charter forfeiture and subsequent merger into the defendant corporation. Grafting another lawsuit upon one that had already been tried and judgment rendered is beyond the liberal tenets of our practice. Laux v. Motor Carriers Council of St. Louis, Inc., 499 S.W.2d 805 (Mo.1973).

The remaining three points which plaintiffs advance on appeal are directed to alleged error on the part of the trial court in disregarding and ignoring substantial and probative evidence in arriving at the fair market value of plaintiffs’ stock. In reviewing this case under the terms of Rule 73.01(3) as interpreted in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.1976), we affirm the trial court’s decision unless: (1) “there is no substantial evidence to support it”; (2) “it is against the weight of the evidence”; (3) “it erroneously declares the law”; or (4) “it erroneously applies the law.” In arriving at what it determined to be the fair market value of the stock, the court below made written findings of fact and conclusions of law in a perspicacious memorandum opinion. Portions of that opinion relevant to this appeal can be summarized as follows: (1) the goodwill of the business was a positive factor to be considered in determining the fair market value of the plaintiffs’ stock; (2) the per share book value was approximately $2.76 on July 15, 1973; (3) a tax loss carry-over available to the corporation was too doubtful and speculative to be given any weight in determining book value; (4) the past and prospective earning power of the company was insufficient to give that earning power any weight as a factor in evaluating the fair market value of the stock; (5) the alleged offer of Adolph K. Feinberg of $10 per share made five weeks before the merger vote was entitled to no weight in determining value because it was a conditional offer based on a superficial evaluation of the stock and not a bona fide offer to purchase based upon a thorough investigation of the corporate accounts; and (6) the corporation’s general financial problems were offset by the goodwill factor, giving a fair market value equal to the approximate book value of $2.76 per share. Based upon these findings, the trial court rendered its judgment upon the basis of $2.76 per share.

Of the three contentions of error remaining, plaintiffs first submit that the trial court erred in disregarding the tax loss carry-over in determining the fair market value of plaintiffs’ stock. In this respect, the trial court determined that the availability of the loss carry-over was too doubtful and speculative to be given any weight as an asset includible in computing the book value. Two of the expert witnesses for the defendant testified that the tax loss carryover could be of value to an acquiring corporation, if the acquiring corporation could use the loss to offset income. Whether the loss could be utilized and to what extent it could be utilized depended on several factors: (1) whether the acquiring corporation has any income; (2) what the tax rate would be on that income; (3) whether the principal purpose of the acquisition is tax avoidance which may cause the lost deduction to be disallowed under the Internal Revenue Code; (4) whether the operation of the corporation produced any income in post-merger years if the corporation was acquired by acquisition of Med-Science Electronics stock, and Med-Science and the acquiring corporation then filed consolidated returns under Treasury Regulations; and (5) whether the acquiring corporation qualified under the complex and detailed limitations of the Internal Revenue Code. The variety and number of these factors reveal that any reliance on the loss carryover value in the Med-Science Electronics stock would be speculative and not based upon an “informed judgment” as the law requires. Phelps v. Watson-Stillman Company, 293 S.W.2d 429, 435 (Mo.1956). See also, Flarsheim v. Twenty Five Thirty Two Broadway Corporation, 432 S.W.2d 245, 255[13] (Mo.1968).

Next, the plaintiffs contend that the trial court erred in ignoring the offer of purchase made by plaintiffs’ witness Adolph K. Feinberg. A reading of the trial court’s findings of fact discloses that Mr. Feinberg’s testimony was not ignored. The trial court held, however, that his offer was entitled to no weight in determining fair value of plaintiffs’ stock because it was conditioned on a thirty-day examination of the Med-Science Electronics books and thus presumably on condition that Mr. Feinberg be satisfied with the financial condition of the corporation as evidenced by those books. Feinberg expressly denied in his testimony that he had any right to call off the deal if the books were not satisfactory to him. There would seem to be little purpose, however, for the thirty-day examination unless it was to give Feinberg a chance to withdraw his offer if the financial condition of the corporation was not to his satisfaction. The evidence also indicated that there was a friendly relationship between Feinberg and the plaintiffs. Certainly in this case tried without a jury, the trial court had the duty and obligation to judge the credibility of the witnesses and the probative value of their testimony. Flarsheim v. Twenty Five Thirty Two Broadway Corporation, supra at 254[12]. Its judgment will not be disturbed on appeal unless it fails to meet the standards of Murphy v. Carron, supra.

The last point urged upon us is that the trial court erred in “entirely disregarding” the testimony of plaintiffs’ expert witnesses. When an examination is made of the argument under this point, it appears that what plaintiffs actually advance as their contention of error is the failure of the trial court to give the same weight to the testimony of plaintiffs’ expert witnesses as the plaintiffs believe the court should have given it. The trial court’s findings of fact and conclusions of law reviewed the testimony of the expert witnesses, considered the factors upon which the opinions were based and determined that the evaluations made by plaintiffs’ witnesses were based on unsound factors derived from comparisons of other companies, none of which were shown to be financially comparable in sales, income or growth with Med-Science Electronics. The court did consider the factor of goodwill which was advanced by plaintiffs’ witnesses in arriving at the stock value. The judgment here is supported by substantial and probative evidence. Just because it does not follow the opinions as to value given by plaintiffs’ witnesses does not indicate in any way it fails to meet the standards required of it by Murphy v. Carron, supra, and it will not be disturbed on appeal.

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.


source: Caselaw Access Project

author: CLEMENS, Senior Judge.

license: Public Domain

text:
    Glen Gary MITCHELL, Respondent, v. Sharon Kay MITCHELL, Appellant.
    No. 39849.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 10, 1979.

      Joseph Howlett, Shaw, Howlett, Schwartz, Clayton, for appellant.
    Chaim H. Zimbalist, Clayton, for respondent.
   CLEMENS, Senior Judge.

The trial court dissolved the parties’ marriage based on the judicially admitted fact they had not cohabited for over two years. Continuous separation for two years warranted the trial court’s ruling that the marriage was irretrievably broken. Section 452.320.2(l)(e).

On appeal the wife relies on their prior dissolution case wherein she had denied the marriage was irretrievably broken, and in which the husband relied on his assertion he no longer loved his wife. On October 26, 1976 we reversed that decree of dissolution. In re Marriage of Mitchell, 545 S.W.2d 313 (Mo.App.1977). The parties had been separated only nine months when the husband filed that petition and we held he had failed to meet his evidentiary burden of showing the marriage was irretrievably broken.

In the present case the husband seeks dissolution based not on the wife’s misconduct but on the sole ground of two years’ separation. His petition was filed in March of 1977, just five months after the reversal of his original decree of dissolution. The wife now contends the trial court erred in considering that part of the parties’ separation that occurred before October 26, 1976 because that was “merged into” our decision denying the husband’s first action for dissolution. Separation was not at issue in that earlier action and we cannot agree.

On this appeal the wife cites only one case, Lovingood v. Lovingood, 472 S.W.2d 58 (Mo.App.1971). There, in the first case the husband sought a divorce on the ground of general indignities and the wife countered for separate maintenance on the ground of desertion. The court granted the wife’s petition and that ended the first Lovingood case. Next, the husband sued for and was granted dissolution on the new ground that his wife had deserted him. On appeal the wife relied on the principle of res adjudicata, as does the wife in our case. The Lovingood court acknowledged that principle but held that the first action, based on the wife’s general indignities, did not bar the husband’s subsequent action, based on his wife having deserted him, saying: “The adjudication of innocence and fault at the time of the separate maintenance action is no more preclusive than any other adjudication upon the facts at the time of the entry of decree, and the factual situation after the decree may give rise to a different adjudication in subsequent litigation. ... a finding in thé separate maintenance action could only be upon the basis of the facts known to the court at the time. Thus, subsequent actions of the parties can give rise to a different factual determination.”

Here, the wife’s reliance on Lovingood is misplaced. We hold that the husband’s asserted ground in the first action, that he did not love his wife, does not bar the present action, based on the conceded ground of over two years’ separation.

Judgment affirmed.

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


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Mark S. MOORE, Appellant.
    No. 39180.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court May 18, 1979.

      Karl F. Lang, St. Louis, for appellant.
    Paul Robert Otto, Brenda Farr Engel, Kristie Green, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Edward Rogers, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant was convicted by jury of 2nd degree murder and sentenced to life imprisonment by the court under the Second Offender Act. He appeals his conviction. We affirm.

Because defendant does not challenge the sufficiency of the evidence, any discussion of the facts will be limited to those which bear directly on the issue of this appeal.

Defendant was charged with the shotgun slaying of a man engaged in the operation of a confectionary in the 4000 block of Delmar, City of St. Louis. At trial, defendant proffered an alibi defense. Defendant claimed that at the time of the killing, he was in the company of friends, in Decatur, Illinois. The offense occurred on December 23, 1975.

In an attempt to establish the alibi, defense counsel called Donald Newman as a witness. Mr. Newman testified to having known defendant for fifteen years and that he had, indeed, accompanied defendant on the trip to Decatur. He testified that he was with the defendant in Decatur at the time of the murder.

It is the cross-examination of Newman that forms the basis of this appeal. On cross-examination, the prosecuting attorney asked Newman whether he considered himself a friend of defendant. Newman responded that he did so consider himself. He was then asked whether he had ever experienced any “problems” with the defendant. The answer was in the affirmative. In response to the Prosecuting Attorney’s questions Newman acknowledged that both he and defendant had each other arrested. Newman testified that defendant had him arrested on November 25, for robbing him. He had defendant arrested for shooting at him with a shotgun on November 29,1975. He further stated that he had reported to police on December 10, 1975 that defendant had tried to kill him with a pistol. According to Newman all charges were dropped.

On appeal defendant contends that this constituted evidence of other crimes unrelated to the one charged and that the court erred in the admission of this evidence. Defendant admits that he failed to object to this evidence, nor did he raise this in his motion for new trial. However, he asks this court to consider such testimony as “plain error” under Rule 27.20(c).

It is a well established rule that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial or comes within one of several exceptions to show motive, intent, absence of mistake or accident, a common plan, or identity. State v. Hobert, 416 S.W.2d 129[2-6] (Mo.1967); State v. Waltman, 556 S.W.2d 79[3] (Mo. App.1977); State v. Granberry, 530 S.W.2d 714[6, 7] (Mo.App.1975); State v. McElroy, 518 S.W.2d 459[1] (Mo.App.1975). However, this case involved the factual issue of defendant’s presence at the time and place the crime occurred. Mr. Newman’s testimony bore directly on that issue. The prosecuting attorney may ask questions in such a manner as to impeach the credibility of a defendant’s alibi witness and thereby refute the defense of alibi. State v. Brunson, 555 S.W.2d 359[2-5] (Mo.App.1977).

In the present instance, prosecuting attorney’s questions and the witness’ responses disclosed the unlikelihood that defendant would take a trip with Newman in view of their recent hostility toward one another. The trial court did not abuse its discretion by admitting the testimony of Newman for this limited purpose.

We find no error in the admission of this evidence, therefore, no manifest injustice.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George Thomas COLE, Defendant-Appellant.
    No. 39669.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Helton Reed, Jr., Special Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Haines, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

The defendant was convicted of molesting a minor. He raises two points on appeal: (1) that the trial court erred in allowing evidence of prior and contemporaneous criminal acts allegedly committed by the defendant; (2) that his proffered converse instruction requiring the jury to find that his acts were intentional was erroneously rejected. We affirm.

Defendant was charged with molesting his 11 year old stepgranddaughter by fondling her breasts. The victim testified that defendant had indeed fondled her breasts; that he had also committed an act of sodomy per anum upon her. She testified further that the defendant had molested and sodomized her in similar manner on several prior occasions. Corroborative evidence was given by the victim’s teen-age sister who, shortly after the acts had been completed, observed the defendant with his trousers unbuckled hurriedly pulling up the victim’s shorts and underpants. The medical report and attending physician substantiated a recent rectal penetration of the victim. Defendant’s statements to the police admitting the fondling of his step-granddaughter’s breasts were overheard by the victim’s sister.

Defendant’s first complaint relates to the evidence of the act of sodomy and the victim’s reference to the fact that the defendant had done the same things to her several times previously. He claims that this was improper evidence of separate crimes. Of course, proof of a separate crime is inadmissible unless it has some legitimate tendency to establish the defendant’s guilt for the crime charged and to establish motive, intent, absence of mistake or accident, a common plan or identity of the defendant. State v. Harlston, 565 S.W.2d 773 (Mo.App.1978); State v. Hamell, 561 S.W.2d 357 (Mo.App.1977). Although defendant made no objection at trial to the “several times” reference by the victim, we find no error in permitting the evidence of the accompanying and previous illicit sexual acts as corroboration for showing the disposition of defendant and support for the specific action charged. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765 (1953), and the following cited cases give ample support to our finding. In Kornegger, separate acts by the defendant of sexual indecencies against a minor occurring at different times were held properly admissible as corroborative evidence. Kornegger is on point and fully supports the admission into evidence in this case of the testimony of the victim regarding defendant’s actions surrounding the molestation charge.

In State v. Shumate, 478 S.W.2d 328 (Mo. 1972), the defendant charged with rape complained that evidence of separate acts of other rapes and sodomizing of the victim was reversible error. The Supreme Court disagreed finding that such evidence was admissible as part of the res gestae. Evidence of separate acts of oral and vaginal copulation occurring on different days was held admissible in State v. Davis, 540 S.W.2d 122 (Mo.App.1976)—a child molestation case. The basis for the admission was that such acts had “a legitimate tendency to directly establish the defendant’s guilt of the crime charged.” Id. at 123. In State v. Torrence, 519 S.W.2d 360 (Mo.App.1975), evidence of separate acts of rape and sodomy per os of the victim was held to be part of the res gestae of the crime charged and, hence, admissible. And in State v. Gardner, 481 S.W.2d 239 (Mo.1972), the testimony of an 11 year old victim of the defendant’s salacious advances that he (the defendant) had “tried it” before was found to be admissible corroborative testimony tending to show the probability of the specific act charged. See also State v. Crosby, 564 S.W.2d 357 (Mo.App.1978).

In State v. Mazzeri, 578 S.W.2d 355 (Mo.App.1979), the court considered the admissibility of a separate act of sodomy for which the defendant was not charged in a rape case. Holding such evidence properly admissible, the court stated:

Where a defendant is on trial for a sexual offense, evidence is admissible as to other similar acts committed about the same time as part of a continuous and inseparable episode. The whole transaction is viewed as one and as parts of the res gestae of the crime charged.

Clearly, then, the evidence relating to defendant’s penetration of the victim’s rectum was admissible.

So, too, it was proper to allow the victim’s testimony to the effect that he had molested her several times previously. First, there was no objection to such testimony, and claim as to its admissibility was waived. State v. Jones, 575 S.W.2d 899 (Mo.App.1978); State v. Ross, 554 S.W.2d 522 (Mo.App.1977). Second, as stated in State v. Worthington, 582 S.W.2d 286 (Mo. App.1979), “the evidence of prior sexual incidents was admissible (even though they could be said to constitute prior crimes) as proper evidence to show the probability that the specific acts charged had been committed and to show the relationship of the parties involved.” The evidence formed a basis of an antecedent probability or corroboration.

Based on the foregoing decisions we reject defendant’s first point.

Defendant’s second point is based on the trial court’s rejection of his instruction relating to intent to commit the crime of child molestation. His theory on appeal is that the jury must find that the fondling of the victim’s breasts was done intentionally and not accidentally. But defendant’s theory at trial was that he never touched his stepgranddaughter’s breasts, and there is no evidence in the record to suggest that there may have been an accidental touching. Defendant’s argument regarding alleged error in the trial court’s failure to submit his converse instruction must fail for several reasons. First, there was no evidentiary basis for giving the instruction. State v. Cashman, 485 S.W.2d 431 (Mo. 1972); State v. Perry, 565 S.W.2d 841 (Mo. App.1978). Second, the proffered converse instruction did not conform to his theory of the case. An instruction which would require the jury to find an intentional touching would not be congruent with the defendant’s theory that there had been no touching of the victim’s breasts. Consequently, defendant was not entitled to the instruction which was at variance with his theory. State v. Banks, 491 S.W.2d 247 (Mo.1973).

Additionally, the child molestation instruction, MAI-CR 12.40, which was given by the trial court sets forth all the necessary elements of the crime charged. Contrary to defendant’s argument, intent is not a necessary element. State v. Tandy, 401 S.W.2d 409 (Mo.1966). Therefore, defendant’s refused instruction requiring the finding of intent was not an accurate converse and was properly rejected. State v. Healey, 562 S.W.2d 118 (Mo.App.1978). Finally, as the trial court had fully and properly instructed on the subject by a precise submission of MAI-CR 12.40, there was no error in refusing defendant’s instruction. State v. Peterson, 546 S.W.2d 175 (Mo.App. 1976).

Judgment affirmed.

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

      . The refused instruction reads:
      “If you don’t find and believe from the evidence beyond a reasonable doubt that at the time the defendant put his arm around the victim he intended to fondle her breasts, you must find the defendant not guilty of child molestation.”

      . MAI-CR 12.40 was effective at the time of defendant’s trial on August 8, 1977.


text:
    Marcella TWIGGS, etc., Appellant, v. NATIONAL OLD LINE INSURANCE CO., and Gravois Home Savings and Loan Association, Respondents.
    No. 40037.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.

      Kurt D. Breeze, Pannell, Dodson & Robinson, Festus, for appellant.
    Benson Cytron, House Springs, Edwin L. Noel, St. Louis, for respondents.
   REINHARD, Presiding Judge.

Plaintiff appeals from the Circuit Court’s order granting defendants’ Motion for a Directed Verdict at the close of plaintiff’s case. Plaintiff contends that she adduced sufficient evidence to warrant submitting her case to the jury, and that the trial court erred in directing the verdicts.

At issue, as represented by plaintiff’s petition, was the existence of a mortgage life insurance policy payable to defendant Gra-vois Home Savings and Loan Association (Gravois) on the death of Tommie Liskey (plaintiff’s husband) in the amount of any outstanding balance on the mortgage. Tommie Liskey died and plaintiff sought collection of the policy proceeds to pay off the mortgage. She was informed that no policy had ever been issued to cover her husband. She then instigated the present action. The trial presented the following facts:

In March of 1971, plaintiff and her husband learned of a home for sale in Pevely, Missouri. The house was owned by the Gray family, distant relatives of plaintiff, who were in arrears on their loan payments. Gravois held the Deed of Trust on the home. Hopeful of acquiring the house, plaintiff and her husband went to Gravois’ office to discuss terms. Once there, they were met by a Mr. Burnstill, Gravois’ loan officer, who handled the transaction’s particulars.

The “particulars” were these: 1.) Plaintiff and her husband were to bring the Gray’s arrearages up to date; 2.) Plaintiff and her husband were then to become owners subject to the deed of trust but were not to be held primarily responsible on the note. Therefore, i. e., Gravois’ only cause of action in the case a deficiency, would be against the former owners and not plaintiff or her husband; 3.) All monthly- installments were to be first credited toward the accrued interest on the loan and thereafter applied in reduction of principal; 4.) Plaintiffs were (and the testimony is discordant on this issue) to obtain mortgage life insurance on plaintiff’s husband’s life from National Old Line Insurance Company (National) naming Gravois as beneficiary. Title was taken in the names of plaintiff and her husband as tenants by the entirety. Grays arrearages were paid and plaintiff’s husband executed the application for insurance.

Plaintiff’s husband, Mr. Liskey, was not a well man. He suffered from a number of physical disorders (stroke, heart trouble, gall bladder removed, etc.) and was unable to work. He received Total Disability Social Security. Plaintiff, on the other hand, was gainfully employed and handled most of the couple’s financial transactions, including making the payments on their home. Plaintiff made these payments, to-talling $69.60 per month, of which $9.60 per month reflected payment for the insurance. Plaintiff testified that neither she nor Mr. Liskey were ever informed that the application for insurance was denied although a letter from National to that effect was sent to them on April 5, 1971, according to officials of defendants. Apparently, the reason they were never so informed was because their address, as listed on the insurance application, was incorrect.

In any event, plaintiff, allegedly unaware that no insurance policy was in effect, dutifully continued making these payments of $69.60 every month for almost two years. Her husband died on January 15, 1973, and plaintiff sought recovery on the non-existent policy. It was then that plaintiff alleges she first learned (from Mr. Burns-till) no policy had ever been issued. Mr. Burnstill’s attempt at reparation consisted of either refunding the $9.60 per month she had paid in advance, or, crediting these payments to the mortgage, thereby relieving her of mortgage payments for the succeeding four months. Plaintiff declined this offer and, on the advice of her attorney, continued making the mortgage payments.

As reflected in the couple’s statement of Account, their total payments were credited first towards the interest and then towards the principal of the loan. Their account was twice debited in the amounts of $23.67 and $25.70 for insurance payments made to National. Mr. Burnstill testified that these payments were made in error, which error was not discovered until after Mr. Liskey’s death.

Plaintiff presses a different theory on appeal than that which she urged at trial. In the trial court she alleged and attempted to prove that defendants, misrepresented to plaintiff that her husband’s life was insured by the mortgage life insurance policy they sought to obtain. Plaintiff now contends that the misrepresentation was not the existence of the policy, but the necessity of obtaining a policy before the sale of the home could be completed.

In order to develop a submissible case of fraud in the trial court below, plaintiff must have established,

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) [her] reliance on its truth; (8) [her] right to rely thereon; and (9) [her] consequent and proximate injury, and the failure to establish any one of these essential elements is fatal to recovery. Gonseth v. K & K Oil Co., 439 S.W.2d 18 (Mo.App.1969) at page 25.

As plaintiff herself testified that both she and her husband knew he was signing an application only, and that National had the option to either accept or reject it; her own testimony refuted the allegation contained in her petition. Apparently, this is the reason she does not urge the same theory on appeal.

However, Rule 55.33(b) provides that the pleadings may be amended by consent; and if a trial court directs a verdict for a defendant at the close of plaintiff’s evidence, a plaintiff may urge any and all possible theories of recovery on appeal. Boyle v. Colonial Insurance Co. of America, 525 S.W.2d 811[7] (Mo.App.1975). Thus, if plaintiff offered evidence in support of the theory she now propounds and if defendants failed to object, the pleadings would have been amended by consent, and this element of fraud would have been sustained by the evidence.

Defendants, in fact, objected to the testimony that Mr. Burnstill represented to plaintiff and her husband that the insurance coverage was required as a precondition to “assuming” the loan. At one point, during the discussion at the bench, plaintiff’s attorney indicated,

I am not trying to show that it’s a misrepresentation. There is evidence in this case from another agent of Gravois that it is not the policy of the company to require mortgage insurance. Whether that’s a misrepresentation or not I really don’t care. I want Mr. Burnstill stating in the record that it is required, at least to her, to show their state of mind as to the existence of insurance. (Emphasis added.)

The trial court overruled defendants’ objection saying the evidence was admissible for the limited purpose indicated by plaintiff’s attorney, not for the purpose of proving the misrepresentation plaintiff now contends supports a submissible case.

Because of defendants’ objections and plaintiff’s in-court admissions, we cannot say this evidence came in by agreement or that the pleadings were amended by consent. Hulsey v. Hulsey, 550 S.W.2d 902[3-4] (Mo.App.1977). Rule 55.33(b). At that stage of the trial it is obvious plaintiff was still pursuing her theory that the misrepresentation was to the existence of the insurance. In light of plaintiff’s pleadings, and the posture of the evidence then before the court, plaintiff failed to make a submis-sible ease on an element of her action for fraud. Failure to make a submissible case on any one of the elements is, of course, fatal to recovery by a plaintiff in an action for fraud.

Affirmed.

GUNN and CRIST, JJ., concur.

      . In her petition she alleged that defendants, “represented to plaintiff that there was in fact a ‘Mortgage Life’ insurance policy on the life of Tommie Liskey and that said policy was payable to defendant Gravois Home Savings and Loan Association on the death of Tommie Lis-key in the amount of any outstanding balance on the mortgage and that said payments would be made by defendant National Old Line Insurance Company; that in fact, no insurance policy was ever secured on the life of Tommie Liskey by defendant Gravois Home Savings and Loan Association with defendant National Old Line Insurance Company . and further, “that plaintiff relied upon the representations of defendants that the life of Tommie Liskey was indeed insured.” Also, “That the representations of defendants were in fact false and untrue and defendants, and each of them, knew said representations as aforementioned were false and untrue.” (Emphasis added) She asked for $5,501.35 actual damages and $150,000.00 punitive damages.

      .In plaintiffs appellate brief she alleges as her sole Point Relied On that, “the trial court erred in sustaining both defendants’ motions for directed verdict at the close of plaintiffs evidence for the reason that plaintiffs evidence established against both defendants a submissi-ble case of fraud, the elements of which are that the defendant knowingly made a representation known by him to be false, intending that the hearer rely upon the misrepresented fact as a material fact in performing some act which results in or causes approximate injury to the hearer; and that plaintiff’s evidence showed that defendants procured an insurance application from plaintiff’s deceased husband by a false representation that insurance coverage was a necessary pre-condition to assuming a loan, and in reliance upon that representation . ” (Emphasis added)

      . The application signed by plaintiffs husband also provided, “that there shall be no insurance in force until the policy hereby applied for is issued and delivered to me during my lifetime in good health.”

      . Rule 55.33(b) states: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”


author: CRIST, Judge.

text:
    Hazel CELLA, Plaintiff-Appellant, v. EVANGELICAL DEACONESS SOCIETY OF ST. LOUIS, Defendant-Respondent.
    No. 39963.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 17, 1979.
    Norman A. Seiner, Clayton, for plaintiff-appellant.
    Anthony F. Vaiana, St. Louis, for defendant-respondent.
   CRIST, Judge.

Personal injury case. The jury found for the defendant. Plaintiff appeals on the ground, among others, that the contributory negligence instruction was not supported by sufficient evidence. We agree.

Plaintiff was admitted to defendant hospital on May 20, 1974. On May 31, 1974, she was placed in a private room. She was not permitted to use the bathroom facilities because of the risk of infection by other patients. She was furnished with a portable commode.

At about 3:00 o’clock in the morning on June 2, 1974, plaintiff awoke feeling the need to urinate. She got out of bed, and walked to the portable commode which was near the foot of the bed. She stood in front of the commode, with her back to it, and attempted to sit down. She testified that as she attempted to sit down upon the commode, “[i]t started throwing me forward and tipping me forward to the right,” and “ . . .1 tried to hold on to something, and I just could not grip onto anything and it threw me to the floor.” Her right side struck the floor. As the result of the fall, she was required to undergo surgery for the insertion of a prosthesis in her right hip. Plaintiff introduced evidence showing the instability of the portable commode, and defendant offered evidence showing the stability of the commode.

Plaintiff properly complains about the giving of the following instruction at the behest of the defendant:

“INSTRUCTION NO. 6
Your verdict must be for the Defendant if you believe:
First, Plaintiff either:
Failed to turn on a light in addition to the night light before attempting to use the portable commode, or
Failed to call for assistance before attempting to use the portable commode at night while only a night light was on; and
Second, Plaintiff’s conduct, in any one or more of the respects submitted in Paragraph First, was negligent; and
Third, such negligence of Plaintiff directly caused or directly contributed to cause the injuries and damage Plaintiff may have sustained.”

The instruction was prejudicially erroneous in that there was no evidence showing that the amount of, or lack of, light had any proximate relationship to the injury sustained by plaintiff.

Defendant contends that submission is warranted by plaintiff’s testimony that when she awoke in the middle of the night the only source of light generated from within her room was a night light located on the wall, the door to her room was closed and she did not turn on any other lights before attempting to use the portable commode. Although the jury could find from this evidence that there was some light in the room, there is no evidence which could support a finding that the light was insufficient for the purposes intended.

In determining the submissibility of an instruction, the evidence together with all reasonable inferences, is considered in the light most favorable to the party offering the instruction. The evidence submitted by the opposite party is disregarded unless it supports the submission. Stotler v. Bollinger, 501 S.W.2d 558, 560 (Mo.App. 1973); Gruhala v. Lacy, 559 S.W.2d 286, 289 (Mo.App.1977); see Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo.1970).

In order for the issue of contributory negligence to be submissible, there must be evidence “from which the jury could find that [the alleged contributory negligence] was a proximate, contributing cause of the [injury].” Heberer v. Duncan, supra, at 563 (emphasis added); cf. Vanasse v. Plautz, 538 S.W.2d 928, 932 (Mo.App. 1976) (affirming a verdict for plaintiff in a court tried personal injury suit despite plaintiff's contributory negligence in failing to properly light her motorized wheel chair pursuant to Sections 307.040 and 307.115, RSMo. 1969, because the trial court could reasonably conclude that the absence of lights did not proximately cause plaintiff’s injuries).

Having ruled that the giving of the contributory negligence instruction was preju-dicially erroneous, we do not deem it necessary to reach the other points briefed by plaintiff.

The judgment is reversed and remanded for new trial.

DOWD, P. J., and SATZ, J., concur.


text:
    CENTENNIAL INSURANCE COMPANY, Respondent, v. INTERNATIONAL MOTOR CAR CO., Appellant.
    No. 39806.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.
    Donald J. Weyerich, Brainerd W. LaTour-ette,oJr., LaTourette & Weyerich, Clayton, for appellant.
    Donald Gunn, Jr., St. Louis, Robert A. Wulff, Amelung, Wulff & Willenbrock, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Appellant International Motor Car Company appeals from a judgment of the circuit court of St. Louis County finding it liable to respondent Centennial Insurance Company as subrogee to the rights of Thomas Ten-holder and Tenholder Travel, Incorporated. The case involved the bailment of an automobile which was apparently stolen from appellant’s car lot.

On or about April 21, 1975, Thomas Schulze, a salesman for International Motor Car Company, a Mercedes and Mazda dealership, agreed to allow Thomas Tenholder to drive for “a couple of days” a demonstrator Mercedes, which Tenholder was considering leasing. As part of this arrangement, Schulze took possession of Tenholder’s 1975 Lincoln Continental, which was titled in the name of Tenholder Travel, Inc. and drove it back to appellant’s ear lot at the corner of Manchester and Lindbergh in St. Louis County.

While in appellant’s possession, and pursuant to the discussions between Schulze and Tenholder, appellant sought bids on the Lincoln Continental so that Tenholder might use proceeds from a sale of that automobile toward any lease or purchase of a Mercedes from appellant. In receiving bids on the Lincoln Continental, appellant allowed the car off its lot only once, when Schulze and appellant’s used-car manager drove the car to a nearby dealer for appraisal.

For reasons not relevant to this appeal but arising primarily from Tenholder’s conduct, the Lincoln remained on the lot of appellant until the evening of April 28, 1975. During this period, Schulze was primarily responsible for the security of this car. According to Schulze’s testimony, on the evening of April 28, 1975, the Lincoln was parked in a row of cars comprising primarily new cars which had been sold and were waiting to be picked up. The car was parked approximately 15 feet from the used car office and was clearly visible through the window of that office. Aside from the normal illumination of the lot (there were “no dark areas of the lot”), a floodlight on the used car office illuminated the Lincoln.

Schulze further testified that at approximately 9:30 the night of the 28th, he followed his usual procedure of locking the keys to the Lincoln inside a metal lock box inside the office. He then made certain that the rear door to the office was locked and left by way of the front door. Schulze then checked the driver’s door of the two-doored Lincoln and found it locked. Although he could not remember whether he tested the passenger door, Schulze testified that the Lincoln was equipped with power locks, so that when one door is locked, the other automatically locks. Schulze then left for the evening. There were no gates, chains or fences across the driveway of appellant’s lot.

When Schulze returned the following morning the Lincoln was missing, although the keys to the car were still in the metal lock box in the used car office. After checks were made to determine whether someone properly had the car, it became apparent that the car had been stolen.

Pursuant to the comprehensive clause of an insurance policy which respondent Centennial Insurance Company had issued to Tenholder Travel, Inc., the latter made a claim for the value of the stolen automobile. Contending that Tenholder Travel had assigned title to the car prior to the theft, respondent refused to pay and then filed in the circuit court a two count petition naming Thomas Tenholder, Tenholder Travel, Inc. and International Motor Car Co. as defendants. The petition was subsequently amended, and separate hearings were held as to each count.

In Count I of its second amended petition, respondent requested the court’s determination of the legal ownership of the 1975 Lincoln Continental at the time of its disappearance and consequently of the liability of respondent to Tenholder Travel, Inc. under the above-mentioned policy. After the separate hearing on Count I, the trial court entered judgment in favor of Tenholder Travel, Inc. and against respondent in the amount of $10,800 and costs.

In the Third Amended Count II of its petition, respondent essentially alleged that appellant was bailee of the Lincoln, that Tenholder Travel, Inc. had requested return of the automobile and appellant had failed to return it, and that appellant’s failure to return the vehicle was due to its negligence and carelessness. Respondent further alleged that because of appellant’s conduct, respondent had had to pay $10,800 to Ten-holder Travel under the terms of the insur-anee policy, thereby becoming subrogated to all rights of recovery that Tenholder and Tenholder Travel might have against appellant. After a hearing on this count, at which the only testimony was that of Schulze testifying for appellant, the court rendered a judgment in favor of respondent against appellant in the amount of $10,800 and costs. The trial court issued no findings of fact or conclusions of law.

In its sole point on appeal, the appellant asserts that the trial court erred in finding for respondent, because the evidence adduced showed that appellant had satisfied the standard of care imposed on a bailee in a bailment for the mutual benefit of bailor and bailee.

Our review of this court-tried case is governed by the oft-quoted guidelines enumerated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In this connection we emphasize the rule that the appellate court should set aside a decree as against the weight of the evidence only with a firm belief that the decree is wrong. Murphy v. Carron, 536 S.W.2d at 32; Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).

In its third amended Count II, respondent alleged that appellant’s failure to return the bailed automobile was due to defendant’s negligence or carelessness. In so doing, respondent did not base its cause of action on simple breach of a bailment contract. By alleging general negligence on bailee’s part, respondent, upon proof of loss, raised an inference of negligence under the res ipsa loquitur doctrine, thereby shifting to the bailee the burden of going forward with evidence of due care. However, the burden of proof as to the bailee’s negligence remained on the respondent throughout. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 560 (Mo.App. 1976).

In response to respondent’s prima facie case of negligence under the res ipsa doctrine, appellant offered the testimony of Schulze tending to show that the appellant had exercised due care as to the bailed automobile, which nevertheless apparently was stolen from appellant’s lot. Appellant cites Toston v. McCracken, 555 S.W.2d 48, 51 (Mo.App.1977) for the principle that a bailment* for the mutual benefit of bailor and bailee imposes on the bailee not the responsibility of an insurer but the duty to exercise ordinary care in the handling and safekeeping of the bailed property. Appellant alleges that the uncontradicted testimony of Schulze proved that it met its duty of ordinary care toward the stolen Lincoln Continental and required a verdict in its favor.

Whatever our position as to whether the conduct of Schulze, as testified to by him, met the standard of ordinary care toward the bailed automobile, other considerations control our decision. We first reiterate that the reviewing court is to give due deference to the trial court’s opportunity to have judged the credibility of the witnesses. Cook v. Lodes, 560 S.W.2d at 65. Secondly, that Schulze’s testimony as to due care went unchallenged does not compel a finding in appellant’s favor. Responding to a similar contention, the court in Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348 (Mo.App.1977) held that because trial court in a court-tried case is the arbiter of facts, it may believe or disbelieve oral evidence, and the fact that the testimony is uncontradicted “is not in any way decisive.” Thirdly, we note that a prima facie showing of negligence under the res ipsa doctrine raises a substantial factual inference of negligence that would not disappear upon the submission of appellant’s uncontradicted or unimpeached rebuttal evidence, but would remain in the case as evidence sufficient to support an affirmative finding for respondent. Golian v. Stanley, 334 S.W.2d 88, 93-94 (Mo.1960); Robinson v. Southwestern Bell Telephone Company, 434 S.W.2d 249, 255 (Mo.App. 1968). The trial court had a right to disbelieve and reject appellant’s evidence and find for respondent on the inference of negligence arising under the facts. Robinson v. Southwestern Bell Telephone Company, 434 S.W.2d at 255. The record does not support the contention that the trial court imposed an undue standard of care on appellant as bailee.

Affirmed.

WEIER, C. J., and CRIST, J., concur.

      . However, the parties stipulated that the court, in ruling on Count II, was to consider the evidence presented at the hearing on Count I.

      . In its brief, respondent urges that we should dismiss the appeal because appellant failed to properly raise this issue in its motion for a new trial. Without deciding whether the motion for a new trial included this issue, we note that, because a motion for a new trial is not required in a court-tried case, appellant’s position on appeal should not be undermined by the filing of one inartfully drawn. Coale v. Rickard, 540 S.W.2d 151, 152 (Mo.App. 1976).


text:
    TILE-CRAFT PRODUCTS CO., INC., Plaintiff-Appellant, v. EXXON CORPORATION, Defendant-Respondent.
    No. 40601.
    Missouri Court of Appeals, Eastern District.
    April 17, 1979.

      Richard B. Dempsey, David L. Baylard, Shifrin, Treiman, Dempsey & Ulrich, St. Louis, for plaintiff-appellant.
    Lon Hocker, Jr., and Edward K. Fehlig, Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Clayton, for defendant-respondent.
   GUNN, Judge.

An alleged breach of distributorship contract by defendant-respondent Exxon Corporation gave rise to a three count cause of action by plaintiff-appellant Tile-Craft Products Co., Inc. Tile-Craft’s first count charged that Exxon failed to give reasonable notice of its termination of the distributorship agreement. The second count charged Exxon with an unlawful conspiracy to take over Tile-Craft’s business territory. The third count charged Exxon with breach of contract in failing to give 120 days written notice of termination according to the terms of the distributorship agreement. At trial Tile-Craft dismissed its first count relating to reasonable notice of termination. The jury returned a defendant’s verdict in favor of Exxon on the second (conspiracy) count. A jury verdict for $3,600 was rendered for Tile-Craft on the third (breach of contract) count. Tile-Craft appeals only the judgment on the third count alleging trial court error in denying its motion for new trial based on inadequacy of damages. This appeal, then, relates only to Tile-Craft’s count III for breach of contract for failing to give contractual notice of termination of the distributorship agreement. We affirm.

On February 16, 1970, Tile-Craft and Exxon entered into a contract by which Tile-Craft agreed to become a distributor for Nevamar, a plastic laminate product used for the construction of cabinets and counter tops. Pursuant to the contract Tile-Craft purchased approximately $60,000 worth of Nevamar from Exxon each year during the four year period of distributorship. Tile-Craft estimated its annual average net profit from the Nevamar sales to be $17,000. Exxon estimated Tile-Craft’s profits to be $570 per year.

In December, 1973 Tile-Craft advised Exxon of a proposed move to another location in the St. Louis Metropolitan area which would entail expenses in moving materials related to the Nevamar promotion such as display racks. On February 23, 1974, after the move was made, Exxon orally advised Tile-Craft of its intention to terminate the distributorship contract and open its own factory warehouse for distribution. The distribution contract between the parties required 120 days written notice for the termination of the distributorship by either party. Within a month after the oral notice of termination Exxon commenced its own distributorship, but Tile-Craft continued to make its purchases of Nevamar products. s According to Exxon, Tile-Craft was able to continue to purchase Nevamar at the distributor’s price level or less. And even Tile-Craft acknowledged that it experienced no problems in securing Nevamar from Exxon; that the only change of conditions was that it was required to pay cash for the items purchased and — -in a conflict of testimony with Exxon to be resolved by the jury — that the prices were somewhat higher. Exxon’s reason for demanding cash was that it had experienced a “slow payment” problem with Tile-Craft when it was a distributor and had thus decided to transact business on a cash basis. When the distributorship was terminated Exxon accepted the return of that portion of the Nevamar inventory that met the return specifications of the distributorship agreement. After the distributorship termination Tile-Craft acquired a competing line of laminated products which was ultimately abandoned as being unprofitable.

Tile-Craft’s theory of damages as related to the jury was for Exxon’s failure to provide 120 days written notice of its intent to terminate the distributorship as was required by the terms of the agreement. Damages sought by Tile-Craft included losses on the Nevamar inventory which was not accepted for return, costs of moving, rebuilding and destroying Nevamar display racks and lost profits, including losses sustained in handling the competing line of laminated products.

The foundation of our opinion is grounded on some rather fundamental legal rubric. When the trial court has approved a verdict following a claim of inadequacy of damages and has overruled a party’s motion for a new trial, our inquiry on appeal is limited to a determination of whether there was substantial evidence to support the verdict and whether the trial court abused its discretion in denying the motion. Crabtree v. Reed, 494 S.W.2d 42 (Mo.1973); Long v. Hooker, 443 S.W.2d 178 (Mo.1969). Accordingly, we must consider the evidence in the light most favorable to the verdict, keeping in mind that the credibility, weight and value of the testimony is a matter for the jury. Long v. Hooker, supra; Nichols v. Blake, 395 S.W.2d 136 (Mo.1965); Cohen v. Archibald Plumbing & Heating Co., 555 S.W.2d 676 (Mo.App.1977); Wells v. Bellman, 531 S.W.2d 770 (Mo.App.1975). The jury’s assessment of damages is conclusive unless the verdict is so shockingly meager as to indicate that it resulted from the arbitrary or prejudiced exercise of discretion. Nichols v. Blake, supra; Pinkston v. McClanahan, 350 S.W.2d 724 (Mo.1961); Ford v. Long, 514 S.W.2d 378 (Mo.App. 1974). If a jury finds the issues in favor of liability, it must award damages commensurate with the nature and extent of the injuries. Pinkston v. McClanahan, supra. Here, based on its theory of the case, Tile-Craft is entitled only to those damages which arise as the proximate result of Exxon’s failure to give 120 days written notice of its desire to terminate the distributorship. It is our opinion that no damages accrued. But as Exxon does not challenge the $3,600 damages verdict on appeal, the issue before us is only whether the trial court abused its discretion in refusing to grant a new trial because of inadequate damages. We affirm the judgment, for we conclude that the trial court displayed no abuse of discretion in denying Tile-Craft’s motion for new trial.

Unquestionably Exxon did not provide Tile-Craft with 120 days written notice of its intention to terminate the contract. And Tile-Craft cites case law which holds that termination of a contract is effective only if prefaced by compliance with any conditions precedent to the termination privilege. American Institute of Marketing Systems, Inc. v. Alfred L. Lamarche, Inc., 469 S.W.2d 929 (Mo.App.1971); National Alfalfa D. & M. Co. v. 4010 Washington, Inc., 434 S.W.2d 757 (Mo.App.I968). But whether or not Exxon properly terminated the contract, Tile-Craft suffered no injury. We refer to each item of alleged damage separately, viewing the evidence in the light most favorable to the verdict:

(1) Inventory sold for scrap: The contract relied upon by Tile-Craft expressly delineated the condition of the Nevamar sheets which would be accepted on return by Exxon. There was evidence to the effect that Exxon accepted the return of the inventory valued at $14,081.88 and refused to accept the return of 15,000 square feet which did not meet the contract conditions. As Exxon was under no obligation to accept the return of nonconforming material in any event, the failure to provide written notice of termination is irrelevant to this claim.

(2) Storage costs for unreturned inventory: As stated above, Exxon was not obligated to accept nonconforming sheets under the terms of the contract. No greater duty would arise as the result of termination, whether or not proper.

(3) Costs of moving, rebuilding and destroying the Nevamar display racks: Both parties to the distributorship contract had the unconditional right to terminate the agreement after providing the requisite notice. The cost of moving, rebuilding and destroying the display racks bears no correlation to the act of providing 120 days notice after the move had been made. The cost would be the same whether or not the contract was terminated properly.

(4) Lost profits: Tile-Craft filed orders for Nevamar until August 19, 1974, and every purchase request was supplied. While there may have been some delay due to credit problems, no breach was alleged on that ground. Tile-Craft and Exxon disagree as to whether a price increase followed the oral termination, but such a claim of damage is not proximately related to the failure of adequate notice. Tile-Craft attempts to relate its lost profits to Exxon’s allegedly wrongful termination and the commencement of its own distributorship in the St. Louis area. Yet, the fact remains that Exxon continued to fill Tile-Craft’s orders for Nevamar and — according to its agent — at a better price than before the distributorship was terminated. There is nothing in the record to indicate any strictures on Tile-Craft’s operation. The only apparent change was that no credit was extended but that for the reason that Tile-Craft had been slow in making its payments. Certainly, the record will not support a claim that the distributorship was exclusive or that Exxon could not commence its own distributorship as it did.

(5) Losses related to securing a competing distributorship: Tile-Craft seeks to apply the Uniform Commercial Code concept of “cover” to its situation and claims that it is entitled to damages which arose out of its substituted plastic laminate distributorship of a competing product. See, § 400.2-712 RSMo (1969). As Exxon continued to fill Tile-Craft’s orders for Nevamar, we fail to see how the cover remedy is relevant. Tile-Craft seems to take the position that the entire distributorship entity was the “goods” which the seller failed to deliver, § 400.2-711 RSMo (1969), but we do not believe that a distributorship is contemplated within the U.C.C. definition of “goods.” 400.2-105 RSMo (1969). In any event, losses which accrued from the competing dealership bear no proximate relation to the notice requirement. The party who seeks to recover damages for breach of contract has the burden of proving that damages have accrued as a result of the breach. Beuc v. Morrissey, 463 S.W.2d 851 (Mo. banc 1971); Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512 (Mo.App.1976); Herbert & Brooner Construction Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973); Equity Mutual Ins. Co. v. Affiliated Parking, Inc., 448 S.W.2d 909 (Mo.App.1969). Tile-Craft has failed to prove damages as result of the breach for failure to give proper notice. Hence, the trial court did not err in denying the motion for new trial.

Judgment affirmed.

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

      . The contract was between Tile-Craft and En-jay Chemical Company, a predecessor in interest of Exxon.

      . Count 1 of Tile-Craft’s petition, which was ultimately dismissed, alleged that an exclusive distributorship was provided by the contract. However, the contract and evidence belie any exclusive distributorship. In fact, the definition of “distributorship” does not appear anywhere in the contract or trial evidence.


author: SNYDER, Presiding Judge.

text:
    J. A. A., Petitioner-Respondent, v. A. D. A., Respondent-Appellant.
    No. 39801.
    Missouri Court of Appeals, Eastern District, Division One.
    April 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.

      George D. Johnson, St. Louis, for respondent-appellant.
    Richard R. Russell, Kirkwood, for petitioner-respondent.
   SNYDER, Presiding Judge.

Husband appeals from a dissolution of marriage decree. The appeal was transferred to this court, without opinion, from the Missouri Supreme Court. The husband, respondent below, claims the trial court erred in: (1) finding the marriage was irretrievably broken and converting a decree of legal separation into a decree of dissolution; (2) receiving into evidence a child custody report and the investigator’s testimony; (3) refusing to issue a writ of body attachment to secure the testimony of two subpoenaed witnesses and refusing to allow the child-custody worker to testify as to the wife’s alleged statements about extramarital sexual relations; (4) making its awards of child support, maintenance and attorneys’ fees and failing to divide the marital debts; and (5) refusing to grant his request for separate maintenance. It is this last issue which the husband claims raised a constitutional issue under the exclusive jurisdiction of the supreme court.

The judgment is modified, and, as modified, affirmed.

The parties were married in 1959 and separated in March of 1975 when the wife left the family home. At the time the petition for dissolution was filed the wife was 33 and the husband was 37 years old. They have three sons, aged 17, 15 and 13 years at the time of trial in 1977.

In her petition for dissolution the wife stated the marriage was irretrievably broken in that she could no longer reasonably be expected to live with her husband because he: (1) forced their children to work long hours in his Volkswagen repair shop; (2) was domineering in the family’s affairs; (3) held two jobs and was not able to offer her companionship; (4) used vulgar language in front of the children; and (5) had threatened her and physically assaulted her because she sought dissolution of their marriage and custody of the children. In his answer the husband denied the marriage was irretrievably broken. He later filed a cross-bill for legal separation, separate maintenance or, in the alternative, dissolution of marriage. At trial the husband denied the marriage was irretrievably broken.

Following the trial the court granted the husband’s motion for legal separation but denied his motion for separate maintenance. Custody of the three sons was granted to the wife, and she was awarded $25 a week child support for each child. Maintenance of $25 a week for a period of two years was awarded to the wife, contingent upon her working thirty hours or less each week. She was also awarded $100 a month for 27 months as further maintenance. All personal property was awarded to the party then in possession. To adjust the property division the wife was awarded $750, payable at the rate of $50 a month. The trial court’s decree did not mention the parties’ debts of $13,271. The wife was also awarded $750 in attorneys’ fees which was in addition to an earlier award of $350 pursuant to a motion for temporary allowances.

On March 11, 1977 the court, on its own motion, transferred custody of the eldest son to the husband and deleted the order of child support for him.

One hundred and twelve days after entry of the decree of legal separation, the trial court granted the wife’s motion for dissolution, finding.that the marriage was irretrievably broken and that there remained no reasonable likelihood that it could be saved. The division of property, maintenance, custody, support and attorneys’ fees orders remained unchanged. The husband’s appeal to the supreme court, and subsequent transfer of the cause to this court, followed.

In his first point of error the husband launches a two-pronged attack: (1) the trial court’s finding of irretrievable breakdown was either against the weight of the evidence or not supported by substantial evidence, and (2) the trial court erred in converting the decree of legal separation into a decree of dissolution of marriage. Both arguments are rejected.

Section 452.305.1(2) states that the trial court shall enter a decree of dissolution when it finds “that there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.” Section 452.305.2 provides, “If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.” Although not expressly required by the language of the statute, it logically follows that a decree of legal separation may only be entered following a finding by the trial court that the marriage is irretrievably broken. See Smith v. Smith, 561 S.W.2d 714 (Mo.App.1978); McRoberts v. McRoberts, 555 S.W.2d 682 (Mo.App.1977). Where one party to the marriage has denied irretrievable breakdown, the same requirement imposed for a dissolution—that the party seeking dissolution shall satisfy the court of one of the five facts listed in § 452.320.2(1)(a)-(e)—should be imposed before the trial court enters a decree of legal separation.

By asking for a legal separation while denying irretrievable breakdown the husband, in effect, took the position that while the marriage, in his opinion, was not irretrievably broken, in the event the trial court should so find, the decree should be in the form of a legal separation rather than in ^ the form of a decree of dissolution of the marriage. The question for resolution on appeal now is whether the wife produced sufficient evidence to satisfy the trial court that the husband had behaved in such a way that she could not reasonably be expected to live with him. § 452.320.2(1)(b). In applying this section, the court in Gummels v. Gummels, 561 S.W.2d 442, 443 (Mo.App.1978) stated, “[i]t will suffice if the behavior of one spouse, combined with the attitude and behavior of the other, indicates a reasonable likelihood the marriage cannot be [saved].” The evidence produced in this case warranted the trial court’s findings that the marriage was irretrievably broken and could not be saved.

The wife testified that because the husband worked long hours in their Volks- , wagen repair business, as well as at his regular job, there was little companionship in the marriage. The husband required their three boys to work until 11:00 p. m. up to seven nights a week at the repair shop. She also testified the husband cursed her in front of the children and in front of customers at the shop and frequently used vulgar language around her and the children. The wife further testified the husband tried to convince her to become a prostitute and asked her to persuade her female friends to have sexual relations with him. Lending some credence to these last two allegations is the fact that the wife took a job at a massage parlor, at the husband’s suggestion, after he visited one and discovered how much money the masseuses made. The wife also stated the husband repeatedly threatened to harm her, or kill her, if she kept any of his books, or obtained custody of their children. Some of these allegations were not pled by the wife, but the husband failed to object that they were beyond the scope of the pleadings. “Under our procedure, issues not raised in the pleadings may be tried by consent of the parties and where so tried, they are treated as if they had been pleaded.” In re Marriage of Uhls, 549 S.W.2d 107, 110 (Mo.App.1977).

The husband, of course, denied and contradicted much of the wife’s testimony. Rule 73.01(3), however, requires an appellate court to defer to the trial court on the credibility of witnesses. LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977). “We have before us only the printed record of the parties’ words; in contrast, the trial court heard and saw the parties and could interpret the evidence in all its shades of meanings and assess the vital factor of their attitude toward each other.” Gum-mels, supra, 443. There is substantial evidence in the record of a “deteriorating relationship” and “waning of their affections.” Gummels, supra, 443. This evidence had a direct bearing on whether the wife could reasonably be expected to continue to live with her husband.

Mindful of the warning of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), there is no firm conviction that the trial court’s finding of irretrievable breakdown is against the weight of the evidence. On the record before it, the trial court properly found irretrievable breakdown based on § 452.320.2(l)(b). The Uhls case, supra, and In re Marriage of Capstick, 547 S.W.2d 522 (Mo.App.1977) cited by the husband, are distinguishable.

Nor did the trial court err in converting the decree of legal separation into a decree of dissolution of marriage. Section 452.360.3 provides that: “No earlier than ninety days after entry of a decree of legal separation, on motion of either party, the court may convert the decree of legal separation to a decree of dissolution of marriage. [Emphasis added].” In McRoberts, supra, at page 684, the court categorized the ninety-day waiting period as a “ ‘cooling off’ period” for the parties. If the trial court is convinced, after that period has elapsed, that the marriage cannot be saved, it has the authority, at a party’s request, to enter the decree of dissolution. The legislature’s choice of the word “may” clearly commits this decision to the sound discretion of the trial court. See Bloom v. Missouri Board for Architects, P.E. & L.S., 474 S.W.2d 861, 864 (Mo.App.1971). No abuse of that discretion has been shown, considering the evidence of the parties’ actions and attitudes before and after the decree of legal separation.

The husband next argues the trial court erred in admitting into evidence, over his objections, a child custody report and the investigator’s testimony based on her report and investigation. Section 452.390.1 provides “[t]he court may order an investigation and report concerning custodial arrangements for the child.” Such a report was prepared in this case.

Section 452.390.1, by authorizing custody reports, does not make admissible that which would otherwise be inadmissible. The encyclopedias and the case law are in accord that the admissibility of a report and the testimony of an investigator in a child custody proceeding presumes that the ordinary rules of evidence have been met.

The husband was correct in his contention that portions of the report and testimony were hearsay, without proper foundation and based on outdated information. However, he has failed to raise any point which directly challenges the custody award; his brief does not claim error in the trial court’s grant of custody to the wife. Thus, even if the challenged evidence was improperly admitted, the husband has failed, by not raising the custody award as a point of error, to show that he was prejudiced by its admission.

The husband’s third argument is that the trial court erred in failing to issue a writ of body attachment to compel the attendance of two subpoenaed witnesses. Also raised with this point is the trial court’s refusal to allow him to cross-examine the child-custody worker about an alleged statement by the wife regarding improper sexual conduct.

Trial commenced with proceedings in the court’s chambers. After custody preferences from the children had been heard, the husband’s counsel informed the court that tlvo of his witnesses had told him they would not appear in response to their subpoenas. Counsel requested issuance of a writ of body attachment to secure their attendance, or a continuance or a stipulation as to their testimony on the basis of his affidavit. The wife’s counsel declined to stipulate until he had consulted with her. The court then read a portion of the affidavit setting out an incident which might be interpreted as showing the wife and a Mr. B. had spent the night together. The court suggested, since the trial was certain to continue into the next day, that the husband’s counsel threaten the recalcitrant witnesses with the writ of attachment and arrest by the sheriff to persuade them to appear. Counsel agreed to pursue that course.

The next morning counsel informed the court the subpoenaed witnesses still refused to appear. He again requested issuance of the writ or a continuance. The wife’s counsel stated he would discuss stipulation with her and the court reserved ruling until they had conferred. At the close of all the evidence, the wife’s counsel indicated she would agree to a very limited stipulation. The husband’s counsel again requested the writ, but the court reserved its ruling. One week after the close of all the evidence the motion was overruled.

Section 491.150, RSMo 1969 provides, “A person summoned as a witness in a cause pending in any court of record, and failing to attend, may be compelled, by a writ of attachment against his body, to appear . . [Emphasis added].”

The normal rules of statutory interpretation and construction indicate that by using the words “may be compelled” instead of “shall be compelled,” the legislature intended to leave the decision of when to issue the writ in the sound discretion of the trial court. Bloom, supra, 864. Review of the propriety of that decision, therefore, is under an abuse of discretion standard. Abuse of discretion is defined as: “ ‘a judicial act which is untenable and clearly against reason and which works an injustice.’ State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973).” State v. Letourneau, 515 S.W.2d 838, 844 (Mo.App.1974).

Missouri civil cases do not set out any factors guiding the trial court in its exercise of discretion in this issue. Cases from other jurisdictions and the encyclopedias were consulted in an effort to determine under what circumstances a refusal to issue the writ would amount to an abuse of discretion. Only the most general guidelines were found. After considering these authorities and the purpose of the writ, the following factors seem relevant to the court’s decision: (1) the number of times or length of time the case has been continued, and the desirability of deciding the case without further delay; (2) the likelihood that attachment by the sheriff will be successful; (3) the competency, relevancy and materiality of the evidence to be produced; (4) whether the case can be fairly and adequately decided without the evidence the missing witnesses would produce, including whether the evidence would be merely cumulative; and (5) the diligence of the efforts made by counsel to secure attendance without the writ.

Applying these guidelines to the facts here, the trial court did not abuse its discretion in declining to issue the writ of body attachment. The case had been continued for over one year and final resolution of a dissolution action, and its attendant issues of custody, support, maintenance and division of property, was an important goal to be furthered. Second, at the close of all the evidence, the husband’s counsel indicated, “as of yesterday we felt it was futile for the Sheriff to go out and look for them because I was told directly that they wouldn’t be there to be picked up.” Third, even if the evidence to be produced might have raised a legitimate inference of marital misconduct, such an incident may not be relied upon to punish the spouse through denial of custody. See In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977); In re Marriage of C_ S_B_, 546 S.W.2d 186 (Mo.App.1976). Finally, the case could be decided without this evidence. The child-custody worker testified on cross-examination that the wife told her she had “dated” Mr. B. The wife denied ever dating Mr. B. Thus, both the type of evidence and the impeaching effect the husband sought to raise by introduction of the testimony of the missing witnesses was provided by the custody worker. No abuse of discretion has been shown; denial of the writ was not an untenable act, clearly against reason, and did not work an injustice. Letourneau, supra.

On reeross-examination of the child-custody worker the husband’s counsel sought to ask her: “Did you tell me or do you recall specifically whether Mrs. [A.] told you that as a part of her job at Palacia she gave Mr. [B.] sexual massages while she was in the nude?” An objection on the grounds of relevancy and hearsay was made. The trial court did not state its reasons for sustaining the objection. An offer of proof was then made that the custody worker would have answered that the wife had made such a statement.

At trial the wife admitted she had given Mr. B. massages at the Palacia massage parlor. However, she specifically denied the massage involved sexual stimulation or that she performed them in the nude.

“ ‘[Prejudicial error’ or ‘reversible error’ in the admission or rejection of evidence is not an issue on an appeal in a case tried before the court.” Layman v. Southwestern Bell Tel. Co., 554 S.W.2d 477, 480 (Mo.App.1977). The issues, instead, are: (1) whether the evidence should have been admitted or rejected, and (2) what the judgment of this court should be based upon a consideration of the competent, admissible evidence. Layman, id., 480.

When hearsay evidence constitutes an admission against the party’s interest, the evidence becomes admissible as an exception to the hearsay rule. State ex rel. State Highway Com’n of Mo. v. Kimmell, 435 S.W.2d 354 (Mo.1968); Bridgeforth v. Proffitt, 490 S.W.2d 416 (Mo.App.1973); Rutledge v. Ballance, 375 S.W.2d 214 (Mo. App.1964). Of course, to be admissible an admission must also be relevant to and have a material bearing on the issues of the case. Rutledge, supra; 31A C.J.S. Evidence § 276.

The wife’s objection should have been overruled and the testimony should have been admitted. The testimony was relevant to the issues of maintenance and custody and constituted an admission against interest. However, the improper exclusion of this testimony does not compel the conclusion that a different result on custody and maintenance should be reached by this court after considering all the competent and admissible evidence.

A number of cases hold that sexual misconduct by a spouse does not mark him or her as an unfit custodian for children, especially where the conduct does not occur in the presence of the children. See In re Marriage of C_S — B_, supra; In re Marriage of B_A_S — , 541 S.W.2d 762 (Mo.App.1976); In re Marriage of L_M_, 541 S.W.2d 760 (Mo.App.1976). Further, the wife’s misconduct here was not sufficient grounds to deny her maintenance as punishment because “neither party was exemplary in their conduct.” In re Marriage of Carmack, supra, 820.

The wife’s testimony, if believed, was that she took the job at Palacia massage parlor at her husband’s suggestion after he learned, from visiting the establishment, the amounts earned by the masseuses. The husband apparently frequented Palacia himself, for the wife so testified and Mr. B. testified he first met the husband there after the wife had given him a massage. In any event, the wife readily admitted her employment at Palacia and candidly revealed that she had given sexual massages. With such evidence already in the record, it is doubtful either this court or the trial court would reach a different result with the inclusion of this single item of testimony. The error committed in rejecting this testimony was harmless. Layman, supra, 480.

The husband’s fourth point of error challenges the maintenance award, the division of marital property and the award of attorneys’ fees. He first argues the trial court failed to consider “relevant testimony” which would have resulted in lesser awards of marital property and attorneys’ fees and The “relevant testimony” refers to the two missing subpoenaed witnesses and the question on cross-examination just discussed. The foregoing analysis and authorities refute this argument. The husband also has not cited any cases, nor has research disclosed any authority, holding the award of attorneys’ fees is dependent on marital conduct. precluded a maintenance award.

The husband’s second argument under this fourth point of error is that his wife failed to show she was unable to support herself through appropriate employment and, therefore, was not entitled to maintenance.

Where the ages of the children awarded to the custody of the spouse seeking maintenance are not such that he or she must stay in the home to provide care, maintenance should only be awarded where the spouse: (1) lacks sufficient property, including marital property to provide for his or her reasonable needs and (2) is unable to support himself or herself through appropriate employment. § 452.335.1(1) and (2); In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976).

The wife received unspecified items of personal property, a set of World Books and $750 as her share of the marital property. She has no separate property of substantial value, and although she received custody of the two younger children, there was no family home to award to her. Clearly, she did not receive sufficient property to provide for her reasonable needs.

The wife was 33 at the time of trial. She had worked regularly during the marriage and possessed bookkeeping skills and experience. Her last job, which she had been forced to quit the week before trial when her employer discovered she was looking for other employment, had grossed $140 a week. Considering this as evidence of her earning power and appropriate employment, her claimed expenses (with two children) of $915 per month far exceeded her likely income. If a spouse’s assets and earnings from appropriate employment are not sufficient to meet his or her reasonable needs, an award of maintenance is authorized under § 452.335.1.

The husband’s third argument is that the trial court erred in dividing the marital property because it failed to divide the parties’ debts. Section 452.330 does not contain any language requiring division of marital debts. The husband cites no cases as authority for the proposition that allocation or division of debts is mandatory. In B.W. v. F.E.W., 562 S.W.2d 137, 140 (Mo.App.1978) this court held that “[t]here is no requirement that the court ‘dispose’ of an encumbrance on real property.” The same rule should apply here.

As part of this third argument the husband draws the court’s attention to the amounts of the awards of maintenance, support and attorneys’ fees, claiming they exceed his resources and ability to pay.

A detailed discussion of the parties’ financial situation in terms of the statute’s provisions would have little precedential value. Simply, the husband’s gross income was over $17,000 in 1976; the wife’s was less than $6,800. She claimed monthly expenses of $915 for herself and two children. The husband claimed $775 monthly expenses for himself, alone. Both parties will have to adjust their budgets in light of their altered incomes and obligations. The trial court did attempt to ease the strain on the husband and strike a just balance between his ability to pay and the wife’s reasonable needs by establishing cut-off dates for the maintenance award and by providing for installment payments on the maintenance award and property division. No abuse of the court’s considerable discretion in setting these awards has been shown.

In his fourth argument in this fourth point of error the husband raises the issue that amounts awarded are incapable of precise determination, in that: (1) the court failed to set terms of payment for the wife’s attorneys’ fees; (2) the child support award, which is to abate during the husband’s six week temporary custody each summer, does not indicate if it will abate if custody is not transferred; and (3) the maintenance award contingent on the number of hours the wife works each week does not indicate if it is pro rata.

Nothing in the Dissolution Act requires the court to include a schedule of payment or the terms of payment of attorneys’ fees in its decree. As to the child support award, it is, upon proper notice, “to abate during six week temporary custody of Respondent [the husband].” Clearly, it would abate.

The maintenance award of $25 per week contingent upon the wife working less than 30 hours a week must be deleted. Such an arrangement requires the court to become a timekeeper, checking weekly on the number of hours the wife has actually worked. The award does not allow either party to budget their funds to meet anticipated expenses in terms of known income. It is open to fraud and confusion and would certainly continually entangle the court with the parties and the parties with each other.

Further, this provision of the decree is too indefinite and uncertain to be capable of enforcement by the wife. See Loomstein v. Mercantile Trust National Ass’n, 507 S.W.2d 669 (Mo.App.1974); Taylor v. Taylor, 367 S.W.2d 58 (Mo.App.1963). Both of these cases hold that if a term of the judgment cannot be ascertained without resort to external proof through information or documents beyond the record it is void, unenforceable and beyond the authority of the court. See Ferriss v. Ferriss, 477 S.W.2d 745 (Mo.App.1972).

To avoid further delay in the final disposition of this case, the authority granted this court under Rule 84.14 will be exercised to strike this portion of the decree. All other maintenance, custody, support and attorneys’ fees awards are affirmed.

Finally, as his fifth point of error, the husband claims the trial court erred in denying his request for separate maintenance. As his first argument in support of reversal or transfer to the supreme court, he contends the separate maintenance statute, § 452.130, contains a sexual exclusion which unconstitutionally denies a husband the right to separate maintenance. This issue has not been preserved for review. At no point in his pleadings, or at trial or in his motion to amend judgment (which served as the motion for new trial) did the husband raise the issue for the trial court’s consideration. The procedural requirements for raising constitutional issues were set out in City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (Mo. banc 1949) and have since been strictly applied. See In re Marriage of Harkins, 548 S.W.2d 583 (Mo.App.1977); Oliver v. City of Higginsville, 527 S.W.2d 690 (Mo.App.1975); Allright Grand, Inc. v. Kansas City, 515 S.W.2d 890 (Mo.App.1974). The mere assertion of a claim for separate maintenance did not adequately raise the issue at the first available opportunity.

In the alternative, the husband suggests the separate maintenance statute be construed in light of the sexual neutrality of the remaining sections of the Dissolution Act. This interpretation would require replacing the legislature’s chosen words-— husband and wife — with the sexually neutral word “spouse.” This request is more appropriately addressed to the legislature; the invitation to redraft the statute is declined.

The judgment is modified and, as modified, affirmed. The cause is remanded to the circuit court with instructions to enter judgment in accordance with the modification, striking the award of $25 per week maintenance contingent upon the wife’s working 30 hours or less each week.

CRIST and SMITH, JJ., concur.

      . All statutory references are to RSMo, Cum. Supp. 1975 unless otherwise noted.

      . These threats apparently were made after the parties separated but certainly reflect the general deterioration of the marriage and the prospects of reconciliation.

      .Annot., 59 A.L.R.3d 1337, 1340, § 2(a); 24 Am.Jur.2d Divorce and Separation § 793; 29 Am.Jur.2d Evidence § 495.

        . Flickinger v. Flickinger, 494 S.W.2d 388 (Mo.App.1973); H — B— v. R_B_, 449 S.W.2d 890 (Mo.App.1970); Benjamin v. Benjamin, 370 S.W.2d 639 (Mo.App.1963).

      . See Jankowski v. Jankowski, 561 P.2d 327 (Ariz.App.1977) where it was held the Uniform Divorce Act contained no provision mandating an express allocation of debts. It is not clear what effect Arizona’s community property rules had on this decision.