text:
    Viola M. HOLMES, Appellant, v. Gerald L. HOLMES, Respondent.
    No. KCD 27001.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for appellant.
    Steven H. Osman, Rope, Shanberg & Rope, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is an appeal from a judgment in an action for divorce wherein the court sustained the respondent’s (husband) motion to set aside that part of the decree providing an award of periodic alimony of $200.00 per month, and $4,000.00 alimony in gross, and overruled appellant’s motion for allowance of attorney’s fees.

The appellant-wife filed her suit for divorce on March 30, 1973, personal service was obtained on the husband, but he filed no responsive pleading, did not appear, and defaulted.

The petition was in orthodox form, alleging general indignities. In the body of the petition, it is stated:

“6. Plaintiff states that defendant is a well and able-bodied man, gainfully employed, earning substantial wages; that she is without the means of support for herself and the said minor child and for the monies necessary for the prosecution of this action.”

Neither the body of the petition nor the prayer makes any request for an award of alimony or maintenance.

The matter was set as a default on May 11,1973, and a hearing was held. The wife advised the trial judge that she and her husband had agreed as to alimony, but that such agreement had not been reduced to writing. Thereupon, the court advised the wife and her counsel to amend the prayer of the petition to request alimony and have the agreement reduced to writing and signed by the parties, and thereupon declared a mistrial.

On May 15, 1973, a property settlement agreement, which had been prepared by counsel for the wife, was executed by the parties, which provided in pertinent part as follows:

“PROPERTY SETTLEMENT
* * * * * *
WHEREAS, the parties are desirous of settling their property rights * * * and the husband is desirous of making provisions for the support of the wife * * * * * *
NOW THEREFORE, it is mutually agreed that:
* * * * * *
3. The husband agrees to pay the wife $4,000.00 lump sum alimony, plus $200.00 per month continuing alimony, and the parties agree that this is contractual alimony.
4. The wife agrees to satisfy the $4,000.00 lump sum alimony, provided the husband agrees to give all the furniture and sign over his interest in the house to the wife.
5. The wife relinquishes and releases any right, claim or interest she may have in a Bell Savings Plan or any AT&T Stock, held by the husband, to the husband.
* * * * * *
7. Subject to the provisions herein contained, all other property, real or personal, wheresoever situated, now or hereafter acquired by either party individually shall be and remain the sole and separate property of each party, free from all rights and interests of the other * * * . Each party hereby releases and waives all benefits conferred upon them by reason of the common law or the statutes relating to marital rights * * *(Emphasis supplied)

The agreement further provided for the custody of the minor child of the parties to be in the wife, with reasonable visitation rights to the husband, and for the support of the child in the amount of $300.00 per month. No question was raised in the court below as to the propriety of the judgment as it relates to the child, and that portion of the decree is not questioned here.

Three days after the execution of the property settlement agreement, on May 18, 1973, the divorce proceeding was again set for trial as a default. The plaintiff-wife did not amend the prayer of her petition so as to seek alimony. The husband was not notified of the setting, and again filed no pleading and made no appearance in person or by counsel. The wife testified, the property settlement was marked as an exhibit and shown to the court, and a decree of divorce was entered for the wife. The pertinent portion of such decree is as follows:

“IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that the plaintiff be and she is hereby awarded * * * the further sum of Two Hundred Dollars ($200.00) alimony per month and the sum of Four Thousand Dollars ($4,000.00) alimony in gross.
WHEREFORE, IT IS ORDERED AND ADJUDGED BY THE COURT that the plaintiff have and recover of and from said defendant the * * * further sum of Two Hundred Dollars ($200.00) Alimony per month and the sum of Four Thousand Dollars ($4,000.00) alimony in gross, together with all the costs incurred herein, and let execution issue therefor against the defendant.” (Emphasis added)

Thereafter and on August 24, 1973, the defendant-husband, by counsel, filed a motion to set aside the decree so far as the same provided for alimony, on the ground that the court lacked jurisdiction to enter such award. On October 3; 1973, after the matter was fully briefed and argued in the court below, it sustained such motion and set aside that portion of the decree awarding alimony to the wife and denied the wife’s application for attorney’s fees. This appeal followed in due course.

Incident to its order of October 3, 1973, the court below filed a Memorandum Opinion which stated its reasons for such order. In summary, the court stated that since the petition did not contain a request for an award of alimony, that the question of notice to the defaulting defendant as to “what will be asked or demanded becomes significant and of prime importance”; that the defendant should be able to rely on the court not granting the relief of alimony not demanded in the petition; that paragraph 6 of the petition was not sufficient to put the defendant on notice, as contemplated by Rule 74.11; that the defendant did agree to “contractual alimony”; that such did not include consent to a decree or judgment for alimony, but gave rise to entirely different rights and liabilities; and that by reason of such factors, the court lacked jurisdiction to make the alimony award.

The appellant asserts that the trial court abused its discretion in so ruling the motion to set aside the alimony award of May 18, 1973, upon four grounds, which may be summarized as follows:

A. the husband failed to offer any proof that he had a good reason for the default and a meritorious defense to the alimony judgment; B. the husband had reasonable notice of appellant’s intention to request an alimony judgment by reason of the allegations in the petition and the terms of the property settlement; C. that under Section 452.070 RSMo 1969 the court had both the right and the duty to grant alimony and Rule 74.11 does not apply to domestic relations cases; and D. the appellant is entitled to attorney’s fees under the evidence.

At the outset of a determination of this appeal, it should be noted that all of the proceedings in the court below were had and this appeal lodged in this court before the effective date of the Dissolution of Marriage Act, Chapter 452 RSMo 1969 (Laws 1973, effective January 1, 1974) and such determination is to be governed by the law as it existed before that date. Section 452.415(2).

The transcript of this record and the briefs and authorities therein cited, and additional authorities, have been carefully reviewed and the conclusion reached that the points raised by appellant are without merit and the judgment of the court below must be affirmed.

Since the decision in the case of North v. North, 339 Mo. 1226, 100 S.W.2d 582, 587[11] (1936), there has been no room for argument that a husband and wife may enter into a valid and binding contract between themselves to settle and adjust all of their property rights growing out of the marital relationship, including the wife’s right to alimony in any subsequent divorce proceeding, and such contracts are not unlawful. In North, the court characterized such contracts “when lawfully made” as “sufficient to bar alimony and dower”, l.c. 584[1, 2]. It drew a distinction, however, between an agreement as to the amount of alimony to be awarded or decreed and an agreement settling all property rights (including alimony). The North court held that an approval of an agreement settling all property rights by the divorce court and a decree awarding the same allowance therefor as provided in the contract did not convert the contractual alimony into statutory alimony. The principles of North have been followed and applied in the recent eases of Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973), (wherein the action of a trial court refusing to modify contractual alimony which had been incorporated in a decree was affirmed), and Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974), (wherein the court reversed an order of the divorce court overruling a motion to quash a writ of sequestration which had been issued in an attempt to execute on contractual alimony incorporated in a decree and in arrears). North, Goulding and Nelson, in substance, held that contractual alimony even though incorporated into a decree or judgment is not subject to modification or execution, and the rights of the parties to such valid agreements are confined to the area of contract law.

It is obvious from this record and the applicable authorities that the ordinary rules with reference to evidentiary requirements upon which to base a motion to set aside a default judgment do not apply, as urged in appellant’s first point (A), namely, that respondent failed to offer proof that he had good reason (or excuse) for his default and had a meritorious defense which he was denied opportunity to assert. No quarrel is had with these general rules; they just have no application here.

Assuming the validity of the contract here involved (and there is no evidence that it was not a valid and enforceable contract), of course, the husband-respondent had “good reason for the default”. He presumably was under the impression that he had fully settled, by formal agreement, all of the problems of property which might have existed arising from the marriage, including his obligation for alimony and support. Also, he obviously did not have or did not care to assert any “meritorious defense” to the divorce action.

But appellant urges in her second point (B) that respondent was given reasonable notice that she would ask for the entry of a decree for periodic and gross alimony. Such position finds no support in the record. The petition made no claim to alimony or support, either in its body or in the prayer, and even had it contained such request, having been filed on March 30, 1973, such request would be deemed merged into and resolved by the formal Property Settlement agreement of May 15,1973. That appellant and her counsel considered this to be true is evidenced by the fact that, though admonished by the trial court to do so, her petition was not amended to include a request for alimony, but the wife relied upon the terms of the agreement. Also, there is no evidence that the respondent was notified by any writing or orally of the second trial setting of the case at the time of the execution of the agreement (three days before the trial) or subsequently, or of the fact that appellant intended to ask that the alimony terms of the agreement be incorporated'in the decree and be reduced to judgment.

But notice of such intention alone (even had it been given) would not be sufficient to authorize entry of such a judgment on the facts of this case. Consent is likewise a necessary prerequisite to the exercise of jurisdiction. No such consent was incorporated here in the settlement contract and none is shown elsewhere.

Prior-to North v. North, supra, property settlement agreements regarding alimony were advisory only. Since North and until January 1,1974, when a valid property settlement was executed, not containing a consent or agreement to the effect that a decree or judgment for alimony be entered consonant with the contract, the statutory power of the court to award alimony is not authorized “without consent of the parties”. The rule was thus stated in Edmondson v. Edmondson, 242 S.W.2d 730[6] (Mo.App.1951), l.c. 735:

“Thus, when the divorce decree was rendered and provisions were there made for payments for plaintiff’s support and maintenance, there existed a valid and conclusive agreement of the parties covering the subject. Therefore, there was no authority, without the consent of the parties, for any provisions in the decree for alimony, support or maintenance. * * * ” (Emphasis added)

The court in Edmondson further held that, absent the consent of parties, the provisions of the decree were made “without authority of law and are void.” l.c. 736[8].

Here, the agreement contained no consent to a decree incorporating its provisions as to alimony, no notice was given to respondent that such was the intention of appellant, and further, the decree did not, in fact, incorporate the terms thereof. The decree awarded a money judgment for alimony in gross in the amount of $4,000.00 and made no reference to the further agreement which provided such was to be paid by a transfer of the respondent’s interest in the home and the household furniture. Further, the decree ordered the “execution issue” for that sum and the periodic payments provided.

Under appellant’s point (C), she asserts that the trial court had not only the right but also the “duty” to enter such alimony awards by reason of Section 452.-070 RSMo 1969, which provides that the court “shall” make an order “touching” alimony and maintenance of the wife. There is no validity to this argument. It is settled law that the use of the word “shall” in this statute does not make it mandatory that a wife who is granted a decree of divorce be granted alimony. Such order may be granted or refused, according to the facts of the case. Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, 923[3] (1942); Clisham v. Clisham, 485 S.W.2d 660, 664[3] (Mo.App.1972).

Rule 74.11, in substance, provides that a default judgment shall not be entered for “damages or other relief” other or greater than that demanded in the petition as originally filed. Appellant strongly urges that this rule does not apply to domestic relations cases and the respondent asserts, with equal vigor, that it does. The terms of this rule are not alone dispositive of this case, and such need not be decided here. It is important here only on the question of notice, as hereinabove discussed.

The appellant’s final point (D) relates to the denial of her motion for attorney’s fees. However, she concedes on page 30 of her brief that if the judgment below is affirmed, “she is not entitled to attorney’s fees and suit money”. Such is the present ruling, and this point can be ruled upon the basis of that concession. However, the ruling of the court below was proper because the portion of the decree here under attack was entered without authority and was void, and there was no abuse of judicial discretion in ruling that the appellant was not entitled to attorney’s fees in her attempt to support a void judgment. Edmondson v. Edmondson, 242 S.W.2d 730, 737[9] (Mo.App.1951); Smethers v. Smethers, 263 S.W.2d 60, 62[6] (Mo.App.1953).

For the reasons herein stated, the judgment is affirmed.

All concur.

      . It should be noted that under the Dissolution of Marriage Act, controlling in this area since January 1, 1974, separation agreements are authorized; the terms thereof (except those relating to the care and custody of children) are binding on the court unless unconscionable; if unconscionable, the court may request a revision of the contract or make appropriate orders as to property rights; the terms of such contract are to be set forth in the decree unless the contract specifically provides that they not be incorporated; the terms set forth in the decree are enforceable as a judgment; and, if the separation agreement so provides, the decree may expressly preclude or limit modification; except as to the support, custody, or visitation of children. Section 452.325 RSMo 19S9 (Laws 1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Minnie OLIVER et al., Plaintiffs-Appellants, v. CITY OF HIGGINSVILLE, Missouri, a Municipal Corporation, et al., Defendants-Respondents.
    No. KCD 27126.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      L. R. Magee, Kansas City, for plaintiffs-appellants.
    Charles H. Green III, Green & Green, Higginsville, Robert L. Langdon, Bradley, Skelton & Schelp, Lexington, for defendants-respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PER CURIAM.

An effort by Higginsville, Missouri, a fourth class city, hereinafter referred to as the “City”, to regulate and control the collection, removal and disposal of garbage, trash and rubbish is the genesis of this litigation.

On August 6,1973, the City enacted Ordinance No. 707, a comprehensive ordinance directed toward achieving the above mentioned objectives within its corporate limits. The salient definitions and provisions contained in said ordinance are hereinafter paraphrased. “Authorized Collector” is defined as the person with whom the City contracts for the collection, removal and disposal of garbage, trash and rubbish. “Residential User” is defined as any person or family unit living in a private dwelling “using the service of the Authorized Collector”. Provisionwise, the Authorized Collector was given the exclusive right to collect, remove and dispose of garbage, trash and rubbish from within the City, provided, however, that nothing contained in the ordinance was to be construed as prohibiting any person from (a) disposing of garbage in an “approved mechanical garbage disposal unit”, or (b) “the removal by any person of his own garbage, trash and rubbish and disposal thereof at the disposal area of the Authorized Collector or on the owner’s premises in a sanitary manner to prevent a nuisance or hazard to the health of the public.” Said ordinance required the Authorized Collector to pay to the City a yearly “franchise fee”, and imposed certain bond, insurance, equipment, frequency of collection and disposal area requirements upon the Authorized Collector. The ordinance further spelled out requirements as to approved containers, on premise storage of garbage, trash and rubbish awaiting disposal, the accumulation thereof, and the burning of trash and rubbish. Additionally, the ordinance fixed a maximum monthly fee which the Authorized Collector could charge Residential Users for collecting and disposing of their garbage and trash, and provided that said monthly fees were to be included on each Residential User’s monthly utility bill and collected by the City for and on behalf of the Authorized Collector. As remuneration for said collection service the City was to receive seven percent of all monthly charges collected for and on behalf of the Authorized Collector. In concluding the aforementioned overview of said ordinance, it should be noted that it contained a penalty clause for violation of its provisions.

Simultaneously with the enactment of Ordinance No. 707, the City enacted Ordinance No. 708. This latter ordinance repealed an existing ordinance, Ordinance No. 642, and further authorized and directed the Mayor and City Clerk of Higginsville, on behalf of the City, to execute a “franchise contract agreement” with Robert L. Gibler, d/b/a Gibler Disposal Service, for the collection, removal and disposal of garbage, trash and rubbish for a period starting September 1, 1973, and ending August 31,1977. This enabling ordinance embodied the terms of the “franchise contract agreement”, the latter subject to being appropriately described as conforming with the definitions and provisions of Ordinance No. 707, and also effected a mutual rescission of an earlier contract authorized by Ordinance No. 642 which had been entered into between Gibler and the City concerning the same general subject matter. It is important to note that Ordinance No. 642, which was repealed by Ordinance No. 708, was never offered or introduced into evidence. Brief testimonial references alluding to it indicated that it was an enabling ordinance which authorized the Mayor and City Clerk of Higginsville, on behalf of the City, to execute a contract with Robert L. Gibler, d/b/a Gibler Disposal Service, to collect, remove and dispose of garbage, trash and rubbish on some type of a “subscription” basis. It is important to further note that the contract authorized by Ordinance No. 642, although executed and entered into, was never offered or introduced into evidence. Again, brief testimonial references alluding to it indicated that the City played no part in collecting the charges incurred by users for the removal and disposal of their garbage, trash and rubbish and that its expiration date coincided with the expiration date of the “franchise contract agreement” executed pursuant to Ordinance No. 708. However, without the benefit of the earlier contract entered into pursuant to Ordinance No. 642 it is impossible to tell from the record whether the obligations impressed upon the Authorized Collector by the subsequent “franchise contract agreement” were less onerous, comparable, or more onerous, financial and otherwise, than those impressed upon him by the earlier contract.

In view of the subsequent dispositional basis of this appeal, the above resume of said ordinances serves no edifying purpose other than providing a verbal montage of the facts which initiated the litigation which ultimately reached this court on appeal.

Appellants herein, who denominated themselves as “legal residents, voters and taxpayers” of the City, filed suit for “declaratory judgment and permanent injunction” challenging the validity of Ordinances No. 707 and No. 708. Respondents herein, the City, its Mayor and Aldermen, and Robert L. Gibler, d/b/a Gibler Disposal Service (the “Authorized Collector”), were joined as defendants. The gist of appellants’ attack on the ordinances at the trial level was that they were “contrary to the laws of the State of Missouri and contrary to the Constitutions of the United States and the State of Missouri” in certain “particulars”. Their petition failed to specify any state or federal constitutional provision claimed to have been violated. Instead, their attack, as disclosed by their petition, was hazily cast in the following language:

“5. That the Ordinances No.’s 707 and 708 are contrary to the Laws of the State of Missouri and contrary to the Constitution of the United States and the State of Missouri, in the following particulars, to-wit:
“a. In enacting ordinances that attempt to deprive these Plaintiffs of their right to their liberty and the use of their property.
b. In enacting ordinances that give private citizens exclusive franchise rights providing for negotiation of the payment of these rights during the pendency of such franchise.
c. In enacting ordinances that permit the Defendants to release or extinguish, in whole or in part, an alleged indebtedness or obligation to the Defendant municipal corporation.
d. In enacting ordinances that affirms contracts with private individuals for additional consideration after a contract has been entered with that private individual and has been performed in part.
e. In enacting ordinances that demand and require payment for services rendered and the unlawful deprivation of other public utility services if such demanded and required payments are not made.
f. In enacting ordinances that affirms contracts with private individuals demanding the use, by the Plaintiffs here, of services of that private individual that are contrary to the laws of the State of Missouri.”

The trial court entered judgment in favor of defendants, respondents herein, declaring the ordinances valid and denying injunctive relief.

On appeal, the appellants, plaintiffs below, contend in their brief, under “Points Relied On”, that “The judgment of the trial court that the City of Higginsville Ordinances # 707 and # 708 are constitutional and enforceable is contrary to the constitution and law of Missouri”, and rely upon the following, set forth verbatim, to support this sweeping allegation:

“1. The ordinances violates the constitution of Missouri by granting extra compensation to contractor after contract has been entered into and performed in part.
(Citation of authorities omitted)
2. The defendants’ exercise of police power is unreasonable depriving plaintiffs’ right to life, liberty and the pursuit of happiness granting exceptions to some and refusing others.
(Citation of authorities omitted)
3. The defendant city has contracted away its police power to a private individual with no provision for protection for aggrieved citizens from said contractor.
(Citation of authorities omitted)
4. Citizens have right to seek judicial declaration of legislative enactment which concern them.
(Citation of authorities omitted)”

Points 1, 2, 3 and 4 will be treated in inverse order. As to appellants’ fourth point, it amounts to nothing more than an abstract statement of law and presents nothing for appellate review. Rule 84.-04(d); Kansas City v. Garza, 493 S.W.2d 659 (Mo.App.1973); and Hamil v. Hamil, 488 S.W.2d 300 (Mo.App.1972). In the common vernacular, appellants’ fourth point is “no point at all”.

Returning to appellants’ first, second and third points, this court has literally groped to correlate the allegations set forth in appellants’ petition with these remaining points. This burdensome task has been totally unavailing with respect to appellants’ third point. Even the most strained and liberal construction of the allegations in the petition fails to reveal anything that remotely resembles appellants’ third point. This point emerges for the first time on appeal bereft of any supportive pleaded allegation or evidence. It is axiomatic that issues unpleaded and never urged at the trial level may not be raised on appeal. S. S. & W., Inc. v. Kansas City, 515 S.W.2d 487, 489 (Mo.1974); and Gilliam v. Gohn, 303 S.W.2d 101, 108 (Mo.1957). The resulting consequence is that appellants’ third point will not be considered on appeal.

Returning to appellants’ first and second points, this court. reiterates its previously mentioned difficulty in correlating them with any pleaded allegation or allegations in appellants’ petition.

Appellants cite Mo.Const. Art. 1, § 2, which has been equated to the equal protection clause of the 14th Amendment of the United States Constitution, King v. Swenson, 423 S.W.2d 699, 705 (Mo. banc 1968), since both proscribe invidious discrimination, as supportive authority for their second point. Appellants make no mention of Mo.Const. Art. 1, § 10, which proscribes the deprivation of any person’s “life, liberty or property without due process of law”. The only allegation in appellants’ petition that bears even a faint resemblance to their second point reads: “In enacting ordinances that attempt to deprive these Plaintiffs of their right to their liberty and the use of their property.” This language is a far cry from pleading facts and alleging that said ordinances were invidiously discriminatory and violative of appellants’ right of equal protection as guaranteed by Mo.Const. Art. 1, § 2. The pleaded language appears more susceptible of being construed as a contention by appellants that the controversial ordinances deprived them of their liberty and the use of their property “without due process of law” (Mo.Const. Art. 1, § 10). The referenced allegation, as pleaded by appellants, was so perfunctory that it failed to give the trial court even the slightest hint that the ordinances, as belatedly contended on appeal, were under attack as violating the equal protection clause of the Missouri Constitution (Art. 1, § 2). The Supreme Court of this state has seen fit to lay down stringent procedural requirements regarding the raising and preservation of constitutional provisions. In the frequently cited case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (Mo. banc 1949), they are collectively stated as follows:

“It has long been the law that the question must be raised at the first available opportunity: Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 819(2), 55 S.W.2d 477. The sections of the Constitution claimed to have been violated must be specified: Robinson v. Nick, 345 Mo. 305, 309(5), 134 S.W.2d 112, 115(11). The point must be presented in the motion for new trial, if any: Red School Dist. v. West Alton School Dist., Mo.Sup., Div. 2, 159 S.W.2d 676, 677(2). And it must be adequately covered in the briefs: McGuire v. Hutchison, 356 Mo. 203(4), 201 S.W.2d 322, 327(8).”

At the trial level appellants completely ignored compliance with the procedural requirement that “sections of the Constitution claimed to have been violated must be specified.” The rationale of this tightly constricted and zealously adhered to procedural requirement is self-evident when viewed in conjunction with appellants’ second point. It is impossible to tell from appellants’ pleaded allegation whether they were attacking the ordinance at the trial level on the basis of due process or equal protection. The indecisive nature of the pleaded allegation vividly demonstrates the purpose which the requirement seeks to serve. The requirement is obviously directed toward fusing pleaded facts with a particular constitutional provision in order that a trial court may determine whether the pleaded facts run afoul of the constitution. Otherwise a trial court is relegated to the laborious task of attempting to equate the allegations of a petition and the evidence with each and every article and section of the constitution to determine whether or not a constitutional violation has occurred, and if it fails or is unable to do so, of resorting to rank speculation as to what constitutional provision, if any, may have been violated. Neither suggested alternative is satisfactory; the patent frailties of said alternatives point up the logic of requiring that sections of the constitution claimed to have been violated be specified. Moreover, on appeal, an indifferent or careless relaxation of said procedural requirement throws the matter of constitutional issues open to the unbridled after-thoughts of parties and counsel. Since appellants failed to specify at the trial level, by way of pleadings or otherwise, the constitutional provision claimed to have been violated by their amorphous allegation, their second point is not deserving of appellate consideration. It seems irrefutably fundamental that if a constitutional issue is not properly raised at the trial level nothing in the nature of a constitutional issue exists to be preserved for appellate review. Rigid adherence to the procedural requirements encompassing constitutional issues rests in the belief that maximum input should be obtained at every level of the judicial process. Allright Grand, Inc. v. Kansas City, 515 S.W.2d 890, 893 (Mo.App.1974). The courts of this state have been chary of carving exceptions to procedural requirements surrounding the raising and preservation of constitutional issues and no compelling reasons emerge for doing so regarding appellants’ second point.

Attention finally focuses on appellants’ first point. This point, citing Mo. Const. Art. 3, § 39(3) as supportive authority, reads: “The ordinances violates the constitution of Missouri by granting extra compensation to contractor after contract has been entered into and performed in part.” The aforementioned appears susceptible of being correlated with paragraph 5(d) of appellants’ petition which reads: “In enacting ordinances that affirms contracts with private individuals for additional consideration after a contract has been entered with that private individual and has been performed in part.” Mo.Const. Art. 3, § 39(3) reads: “The general assembly shall not have power: . . . (3) to grant or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered or a contract has been entered into and performed in whole or in part; ”. It is difficult to perceive and impossible to conclude that paragraph 5(d) of appellants’ petition fairly apprised the trial court that appellants were invoking Mo.Const. Art. 3, § 39(3), a somewhat obscure and infrequently mentioned constitutional provision, as a basis for invalidating the ordinances. This court is constrained to hold that the reasons and authorities disavowing consideration of appellants’ second point dictate a like result respecting appellants’ first point. Any further expatiation on the reasons underlying strict compliance with the firmly entrenched procedural requirements pertinent to the raising and preservation of constitutional provisions appears unnecessary. Harsh as the result for failure to comply may be, any pangs of doubt emanating from their strict enforcement pale when viewed in light of the confusing and speculative decisional atmosphere in which constitutional issues would be placed in the total judicial process if the procedural requirements went unenforced.

Appellate review of court tried cases de novo upon both the law and the evidence, as held in DeBow v. Higgins, 425 S.W.2d 135, 140 (Mo.1968), is “limited . . to the specific matters urged on appeal”. See also: Schlanger v. Simon, 339 S.W.2d 825, 828 (Mo.1960); Dill v. Poindexter Tile Company, 451 S.W.2d 365, 371 (Mo.App.1970); and Yates v. White River Valley Electric Co-operative, 414 S.W.2d 808 (Mo.App.1967). Since appellants failed to present any viable issues for appellate review, the inevitable result, however anomalous, is that no “specific matters” have been “urged” by them on appeal and, accordingly, the judgment below is affirmed.

Judgment affirmed.

      . “Garbage”, “Trash” and “Rubbish” were separately defined in the ordinance.

      . The Authorized Collector was required to provide at his own expense a sanitary landfill area that complied with the requirements of Sections 260.200-260.245, RSMo Supp.1973, and as subsequently amended, and all laws and regulations promulgated by the State Board of Health of the State of Missouri pursuant thereto.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Shirley NOLAND (Lewis), Appellant, v. William NOLAND, Respondent.
    No. KCD 27382.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Martin Anderson, Kansas City, for appellant.
    Robert F. Sevier, Roger Guy Burnett, Sevier & Burnett, Liberty, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from adverse ruling on motion to modify divorce decree.

A divorce action instituted by William Noland resulted in a decree of divorce to Shirley Noland, now Lewis, October 23, 1970. Custody of their minor daughter, Rebecca Lee Noland, was awardéd to Robert Noland and Anna Noland, paternal grandparents of Rebecca Lee Noland. Shirley Noland (Lewis) was awarded custodial rights from 6:00 p. m., Friday, until 6:00 p. m., Sunday of each weekend except the third weekend of each month. Such rights were further conditioned by instructions to the mother to enroll and remain in good standing with Alcoholics Anonymous for a period of two years. William Noland was denied custodial and visitational rights.

On January 31, 1974, Shirley Noland (Lewis) filed her First Amended Motion to Modify Decree, alleging that she had followed the court’s instructions; that the paternal grandparents have caused her nervousness with respect to her custodial and visitational rights, have permitted the father to visit the child, and have refused to cooperate with medical instructions; that she has remarried and can provide parental care for the child; that the best interests of the child would be served by granting sole custody of the child to her.

On February 26,1974, the father, and the paternal grandparents as intervenors, filed a joint motion in answer to the mother’s motion, alleged her continuing unfitness to have custody of the minor child, and prayed that the decree be modified to grant the father a reasonable visitation and to deny the mother all visitation rights and relief.

Trial was accorded on the issues raised by the motions to modify resulting in nearly 400 pages of testimony. The mother testified in support of her alleged changed condition, ability to exercise custody of her child, and failure of the paternal grandparents as custodians of the child. She also adduced testimony from Randall George, her fourteen-year-old son by a former marriage, Thomas Goodner, a private detective, and Marvin Lewis, her present husband. The paternal grandparents testified in support of their motion to modify and to controvert allegations and testimony of the mother. They also adduced testimony from some thirteen neighbors and associates of Mrs. Lewis tending to show continuing problems with respect to her exercise of custodial and visitational rights. Mrs. Lewis testified in rebuttal and also called her sister, Linda Miller, and the paternal grandfather on her rebuttal.

On May 17, 1974, the court made the entry underlying this appeal, pertinent parts of which follow:

“2. * * * Robert Noland and Anna Noland are under the jurisdiction of the Court and, by irrevocable consent and stipulation are subject to the continuing order of the Court. They have, pursuant to the pri- or orders and decrees of the Court, provided a good and suitable home and surroundings for Rebecca Lee Noland.

“3. * * * First Amended Motion to Modify Decree is overruled.

“4. No party has made requests for findings of facts or conclusions of law and this Entry, accordingly, does not undertake to do so.

“7. The joint Motion to Modify filed by [William] and Robert Noland and Anna No-land is sustained in part and overruled in part and the prior Decrees and Orders of the Court are modified as follows:

“(a) The paternal grandparents, ROBERT NOLAND and ANNA NOLAND, are granted the care, custody, and control of REBECCA LEE NOLAND. This custody order is subject, however, to the following provisions.

“(b) All provisions for visitation by [Shirley Noland (Lewis)] are absolutely contingent and conditioned upon her sobriety and abstinence from all alcoholic beverages, before, during and to the conclusion of such visitation. Subject to the foregoing, [she] is granted the following and only the following right of visitation on the 2nd Saturday of each month from 9:30 a. m. to 5:00 p. xn. unless such Saturday falls on Christmas Day. Such visitation, however, is to be in the home of [her] sister, Linda Miller. In this regard, the Court takes notice that Linda Miller has consented to be involved in Respondent’s visitation with her daughter in this manner and to make her home available for such purpose. It is ordered that if this visitation becomes impossible, in the manner prescribed, for any reason, that the Court be duly notified for further action. The court has been advised that until August, 1974, it may be necessary to substitute a Saturday to allow for Linda Miller’s work schedule. The court approves such substitutions and orders that they be agreed between the Nolands and the Millers.

“(c) [William Noland] is granted the right of reasonable visitation with his daughter, REBECCA LEE NOLAND, at the home of the custodial, paternal grandparents, ROBERT NOLAND and ANNA NOLAND.

“(d) Judgment is awarded against [William Noland] in the sum of Thirty Dollars ($30.00) per week * * * to pay said sum to the Circuit Clerk of Clay County, Missouri. First payment is' due and payable on the 24th day of May, 1974 and on the same day of each week, thereafter, until further order of the Court. The Clerk is then ordered to distribute the said support by paying the same to Bob Noland and Anna Noland, Trustees for Rebecca Lee Noland * *.”

This matter is for review upon both the law and the evidence with due regard to be given to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01.3(a)(b), Y.A.M.R.

Appellant contends that the court erred “in not granting * * * the natural mother greater custodial rights in the minor child * * * but instead further restricted her custodial rights in a punitive manner since the Court made no finding that appellant is an unfit or debased parent; or that the child would be harmed by such visitation, or that it is to the best interest of the child not to see or be with her natural mother.”

This point presents first a complaint of failure of the court to make findings with respect to whether the mother is an unfit or debased parent, whether the child would be harmed by increased visitational right in the mother, and whether it is to the best interests of the child not to see or be with her mother.

As noted by the trial court in its entry, none of the parties asked for special findings, in which case none was required and all fact issues upon which no specific findings are made are considered found in accordance with the result. Rule 73.01.1(b), V.A.M.R.; McCullough v. Newton, 348 S.W.2d 138 (Mo.1961).

Appellant’s point presents second a charge that the court further improperly restricted the mother’s custodial rights “in a punitive manner.” See Schumm v. Schumm, 223 S.W.2d 122, 125 (Mo.App.1949).

There is nothing in the record or the court’s order to suggest punitive action on the part of the court. Appellant makes no complaint of the sufficiency of evidence to support the entry; the testimony was in direct conflict on all issues for the court’s resolution, and the whole record is a classic case for this court to defer to the opportunity of the trial court to make credibility determinations.

In these circumstances, the trial court appears to have given the required paramount consideration to the welfare of the child. See J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975); Graves v. Wooden, 291 S.W.2d 665 (Mo.App.1956). This record does not dictate a contrary result.

Judgment affirmed.

All concur.


author: PER CURIAM:

text:
    S. G. E., Appellant, v. R. L. J., Respondent.
    No. KCD 27516.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Philip Eveloff, Muster & Eveloff, St. Joseph, for appellant.
    James H. Counts, Morton, Reed & Counts, St. Joseph, and Robert A. Sehroe-der, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   PER CURIAM:

Plaintiff obtained a divorce from defendant, her then husband, on September 21, 1973. Custody of the infant child of the parties was awarded to defendant. Two months thereafter, plaintiff filed a motion to modify the decree so as to change custody to her. From a denial of her motion, plaintiff takes this appeal.

In the latter part of 1972, both parties who were then high school students, started dating. Defendant called for plaintiff at her home on various occasions but was not welcome to the parents. In February of 1973, defendant accompanied plaintiff to her home and announced to the parents that plaintiff was pregnant. Thereupon a stormy session occurred. Plaintiff’s parents made it abundantly apparent that they opposed marriage, and they suggested abortion.

Defendant utterly opposed the idea of abortion and persuaded plaintiff to marry him and carry the child to term. When plaintiff’s parents discovered that the young couple were going to a small town in Kansas to get married, plaintiff’s father with other members of the family appeared and made strenuous efforts to stop the marriage. The marriage did, nevertheless, take place.

For a short time after the marriage the parties lived together in an apartment in St. Joseph. Defendant then left for Colorado to take a job while plaintiff returned to her parents’ home to reenter high school to complete her senior year. After graduating, plaintiff left to join defendant in Colorado.

By August, plaintiff had reached a crisis. The apartment occupied by the couple in Colorado was very meagerly furnished and the couple did not have the necessities for the baby about to be born. Plaintiff then called her parents who came to Colorado and took her with them to the parental home in St. Joseph.

Shortly after returning to St. Joseph, plaintiff filed petition for divorce. At the same time, apparently at the instance of her parents, she started discussion with a social work agency looking toward placing the anticipated child for adoption.

Plaintiff gave birth to a baby girl on September 10,1973. When defendant came to the hospital, plaintiff requested defendant’s consent to the placing of the child for adoption. In that connection she told him that “she didn’t think her parents would accept the baby at their home.” Defendant responded that he would not consent to an adoption and that if plaintiff would not take the baby, then he would. The parties then agreed that upon the divorce, custody of the child would be given to defendant.

Eleven days after the birth of the child the divorce case was heard. Plaintiff testified that she did not feel in a position economically, emotionally or physically to have custody of the child, and she further stated that she was willing for the court to award custody to defendant. The decree entered did award custody to defendant and further ordered that defendant keep the child in the home of his parents and that he pay them $100 per month for the child’s support and maintenance.

On November 21, 1973, plaintiff filed her motion to change custody. She testified herself and produced the testimony of her parents and others to show that at the time of the birth and continuing through the date of the divorce, plaintiff had been emotionally upset. That evidence was to the effect that she had certain physical problems following the birth, that she was solemn, depressed and given to crying spells, that she was uncommunicative, that she felt confused, that she saw and heard everything but did not comprehend. The testimony on her behalf was further to the effect that she had by the time of the hearing on the motion returned to her old self and was now of the feeling that the child was the paramount thing in her life. Her parents both testified on her behalf in seeking the change in custody and both testified that the child would be fully welcome in their home as part of their family.

Plaintiff also offered some evidence to show that coarse language and vulgar discussions of sexual subjects took place as a common routine in the home of defendant’s parents. Plaintiff also attempted to introduce into evidence records of a social work agency which indicated that defendant was the father of an illegitimate child which had been born April 24, 1973, just a few months prior to the birth of the child to plaintiff. These records were ruled inadmissible on the grounds of hearsay.

The decree of the trial court denied the motion to modify upon a finding that “there was no substantial change in circumstances from the time of the rendering of the original Decree of Divorce until this date.” The decree further denied plaintiff’s application for the allowance of attorney’s fees in connection with the motion to modify-

Following that ruling, plaintiff filed a further motion “to vacate, re-open, take additional testimony, correct, amend, or modify judgment, or, alternatively, that the court grant plaintiff a new trial.” This motion alleged as grounds that plaintiff had additional evidence to show that defendant had fathered the illegitimate child born April 24, 1973; that defendant and other relatives of his had committed various thefts; that defendant, his mother and aunt drank intoxicants frequently and heavily; that obscene language and discussions of sexual activities normally and frequently occurred in defendant’s home; that one of defendant’s witnesses had committed perjury at defendant’s request; and that plaintiff had been denied visitation rights. Plaintiff requested an evidentiary hearing on this post-trial motion. The court denied that request but nevertheless permitted plaintiff to offer evidence “to make a record * * * so that any court reviewing this record can itself weigh the evidence introduced.”

Pursuant to that permission, plaintiff did offer extensive additional evidence, particularly the testimony of a 16 year-old girl who testified she had been impregnated by defendant and that she had borne a baby boy fathered by defendant in April, 1973. This was the child to which reference was made in the social agency records rejected as evidence at the original hearing. Evidence was also offered with respect to the other allegations of the motion for new trial. At the conclusion of the additional testimony, the court formally overruled the motion for new trial.

Plaintiff’s principal thrust on this appeal is a challenge to the refusal of the trial court to order a change of custody. She argues in support that: a) since the original award of custody was by consent and not pursuant to any contest, the motion to modify was realistically in the nature of an original custody award and therefore should not be dependent upon any showing of change of conditions citing Brand v. Brand, 441 S.W.2d 750 (Mo.App.1969); b) that even if change of conditions is necessary, the evidence does show a change of conditions and that it would be in the best interests of the child to be placed in plaintiff’s custody; and c) the court should have considered the additional evidence offered by plaintiff on her motion for a new trial.

It is unnecessary to consider the first and third of those contentions, since even under the conventional rule requiring the movant to show a substantial change of circumstances making modification necessary in the best interests of the child, plaintiff did carry that burden of proof. Moreover, that burden was satisfied by the evidence submitted at the original hearing without the necessity of resort to the additional evidence subsequently offered on the. motion for new trial.

The trial court treated as controlling its finding that there had been no substantial change of circumstances since the time of the rendering of the original decree. That finding cannot stand scrutiny. While deference is owing to the finding by the trial court, nevertheless it is the duty of this court to consider the record de novo on both the law and the evidence. Rule 73.01— 3.

During the whole period from February until the birth in September, 1973, plaintiff was immersed in constant turmoil. Starting with her background problem of trying to deal with her own sense of guilt, she quickly had to face in rapid succession a whole series of searing problems. These had to do with whether or not to hasten into marriage, whether to have an abortion, in what way financial requirements could be met, and whether to attempt to complete her senior year in high school. All of these were matters which produced highly charged conflicts, beginning with the emotional meeting at which defendant advised plaintiff’s father and mother of her pregnancy and continuing through the last minute efforts of plaintiff’s family to stop the run-away marriage before a Kansas Magistrate. The sense of instability instilled by those problems and events was intensified by plaintiff’s shuttling during this period between making her home with her young husband and then with her parents. After first living with defendant in a small apartment in St. Joseph, she returned to the parental home to finish high school, then went to the husband’s small apartment in Colorado and then returned again to the parental home in August.

Underlying plaintiff’s congery of problems was the basic conflict between her romantic attachment to her young lover and her filial love and respect for her parents. Defendant and plaintiff’s parents were on opposite sides of each of the various issues in which plaintiff found herself enmeshed and she was obviously torn between loyalties and teetered back and forth between the arguments presented by the contestants. To this already seething mix was added a still more powerful ingredient. By September 10, plaintiff had to contend also with the cherishing and strong sense of consecration which every young mother feels to the product of her flesh and blood nourished as part of her own body for so many months.

In view of these intense emotional conflicts, over and above the physical discomforts attendant to the child birth, it is no wonder that plaintiff was distraught and sunk in a depressed and tearful silence from the time of the birth to the date of the divorce. However, the evidence shows that in the ensuing two months there came a very drastic change in the whole situation.

The most important factor in the situation existing at the time of the divorce was the attitude of plaintiff’s parents, or at the very least what plaintiff discerned to be their attitude, which was a firm refusal on their part to accept her child. By November, 1973, when the motion for change of custody was filed, the situation had made a 180° turn. By this time plaintiff had settled her conflicts and had come to a determination that the care of her child was the paramount thing in her life and that this thought was not a passing thing but was “with me all the time.” By this time also her parents had not only become reconciled to the idea of this being their own grandchild, but more than that, they became active, eager participants in plaintiff’s efforts to obtain custody and to have the child in their home. Thus, in the intervening two months a change had occurred by which two powerful emotions, mother love and respect for parents, had ceased to be in conflict and now combined together in driving toward the same objective. Moreover, now for the first time plaintiff had a practical way in which to accept custody and give proper care to the child. To say that there had been no material change of condition between September 21 and November 21, 1973, would be an ignoring of the undisputed facts and a refusal to consider the unavoidable conclusions provided by a reasonable insight into human motivations.

All of this serves merely as a preliminary and by way of opening the door to the much more basic consideration of what custody will be for the best interest and welfare of this child, the vital question which the trial court expressly declined to determine. In connection with this question, it can be noted in passing that plaintiff’s father is a well established professional man and that both of her parents and her older sister are college educated. Her parents have been successfully married for 27 years. Plaintiff herself has been an excellent student, a leader in school activities, and is now enrolled in college with the objective of becoming a medical technician.

By way of contrast, defendant’s mother (in whose home the child is now placed) has been thrice divorced and is now married for the fourth time. The step-father is a railroad machinist, previously divorced, whose daughter by the first marriage lives in the home. Defendant’s mother and sister never completed high school and he, himself, was a very poor student. He has dropped out of high school and is now employed as an unskilled laborer.

It seems obvious that the placement of the child with plaintiff and her family would offer to this child vastly more material and cultural advantages than would be available to her with defendant and his family. Nevertheless, the best interest of the child cannot be determined on the basis that one parent is affluent and the other is of more modest means.

Let us assume, therefore, that both of these homes are equal and that neither of the parents is disqualified on personal grounds. On that assumption, the rule then becomes applicable that a mother is deemed to be the one best able to care for a child of tender years, especially when the child is a girl. Eissler v. Eissler, 468 S.W.2d 217, 221 (Mo.App.1971); Armstrong v. Armstrong, 185 S.W.2d 845, 847 (Mo.App.1945); Hinson v. Hinson, 518 S.W.2d 330, 332 (Mo.App.1975).

Any departures from that usual award of custody have been described by this court in Baker v. Baker, 475 S.W.2d 130, 133 (Mo.App.1972) as “aberrations from normalcy.” That case further holds that where such variance occurs “there must be a finding, evidentially supported, that the best interests and welfare of the children are served by a departure from the normal pattern of family relationships.”

No such finding was made by the court below. Nor, if made, would such a finding have been supported by the evidence. Even though we decline to give affirmative preference to the material advantages offered by plaintiff’s home, it would be ludicrous to say and it would contradict the record to find that plaintiff’s home is in any way inferior to that of defendant or that plaintiff’s personal qualities are in any way less fitting than those of the defendant. Since there is no factual basis upon which to depart from the normal family pattern recognized by the law, the best interests of the child are served under the Baker rule by placing custody with the mother.

The only elements in this case which could possibly tend to a ruling against custody by the mother are the facts that at one time very early in her pregnancy she was willing' to consider an abortion and that later she did request defendant’s consent to placing the child for adoption. With respect to the matter of abortion, it should be noted that this was something within plaintiff’s own sole control and she did not need any consent from defendant for that purpose. Her decision not to have an abortion was hers alone, and no possible reason can be seen why it should be held against her that she did briefly consider abortion as a possibility. In any event, the whole answer to this phase of the case was given by the trial court when he correctly observed that “in no manner should plaintiff’s wish to have the child aborted or that its custody be placed with others, be a penalty against her present claim.”

While the trial court’s ruling on the matter of custody cannot be accepted, his denial of plaintiff’s claim for attorneys’ fees stands in better stead. The governing rule is that the allowance of attorneys’ fees to a wife is discretionary with the trial court and is to be exercised in view of the circumstances of both parties, including the ability of the husband to pay. Engler v. Engler, 455 S.W.2d 36 (Mo.App.1970); Graves v. Wooden, 291 S.W.2d 665 (Mo.App.1956); Papenberg v. Papenberg, 289 S.W.2d 468 (Mo.App.1956); Mince v. Mince, 481 S.W.2d 610, l.c. 612 (Mo.App.1972).

On the facts here, a comparison of the circumstances of the parties shows no superior resources by the husband. At the time of the hearing, he was employed at gross wages of $160 to $170 a week. Out of the net payments to him of approximately $115 per week, at the time of the hearing he was subject to a number of bills being paid in installments and he was paying for the support of the child. At the present time, he is under an obligation to pay the expense of his own legal fees and he will be obligated for the substantial costs on this appeal. Even though plaintiff may be in need herself (which to be true would require disregard of support furnished by her parents), no allowance of an attorney’s fee against defendant should be made absent a showing of his financial ability to pay. Schneider v. Friend, 361 S.W.2d 308 (Mo.App.1962). The denial of the application for attorneys’ fees here was a proper exercise of the trial court’s discretion.

There remains for consideration what contribution, if any, should be made by defendant for the support and maintenance of the child. This matter can be better determined by the trial court rather than by this court. The case will be remanded for further hearing and determination of this point.

Reversed and remanded for hearing as to the amount of child support to be awarded appellant and with directions to enter a decree granting custody of the minor child to appellant, determining an appropriate amount of child support and providing rights of visitation.


author: SWOFFORD, Presiding Judge.

text:
    Jeanne Gertrude KANADY, Respondent, v. Berlin L. KANADY, Jr., Appellant.
    No. 27517.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      G. L. DeLapp, Jr., Cameron, for appellant.
    William Rosenthal, St. Joseph, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The parties to this action were divorced on February 15, 1973, and under the decree the mother-respondent was awarded the custody of the two minor children, a child support award of $225.00 per month, and the appellant-husband was given rights of visitation.

On June 11, 1974, the father filed his motion to modify this decree and asked that he be awarded the custody of the older child, Thomas Bruce Kanady, born October 11, 1957, and that upon such change of custody the child support award be reduced from $225.00 per month to $112.50 per month. As grounds for such motion, he alleged that there had been a change of circumstances since the original decree, in that the boy was presently residing with him; that he refuses to live with his mother (respondent); that he desires to live with his father (appellant); and that the boy’s best interests require the modification of the custody award.

On July 11, 1974, the mother filed her cross-motion to modify the decree, in which she alleged that the father had induced Thomas to leave her home, refused to let him return, asked for an order compelling the father to return the son to her, asked for an increase in the child support award, and for attorney’s fees. By answer to the cross-motion, the father denied the allegations therein.

A hearing was had in the court below on July 26 and July 27, 1974, at which the father, Thomas, and the mother all testified at length. At the conclusion of the hearing, the court below overruled the Motion to Modify and the Cross-Motion to Modify; ordered Thomas to return to his mother’s home; granted visitation rights to the father; ordered the father to keep medical and hospitalization insurance in force for the benefit of Thomas and his sister; and, allowed the mother $350.00 in attorney’s fees. From that judgment, this appeal was taken.

Some preliminary observations are in order before the merits of this appeal are reached.

The appellant’s brief herein does not even substantially comply with the requirements of Rule 84.04, and is of little help to this court. His jurisdictional statement [Rule 84.04(b)] shows that the appeal is taken from a judgment of “Division No. 1 of the Circuit Court of Jackson County, Missouri, Riederer, J.” Respondent’s brief, however, supplies a correct jurisdictional statement. Leave was given at oral argument for appellant to file an amended jurisdictional statement, but such has not been forthcoming.

Appellant’s statement of facts [Rule 84.-04(c)] is inadequate to give this court a view of the evidentiary record in this case, and unduly emphasizes evidence favorable to appellant, and is completely misleading as to the attitude of the trial judge, as demonstrated by the whole record.

The brief contains an “Assignment of Error”, no longer required or desirable under Rule 84.04 which is completely argumentative.

The two “Points and Authorities” [Points Relied On, Rule 84.04(d)] cite one case and one section of the statute, and thus impose upon the court the entire burden of research.

Regardless of these deficiencies in appellant’s brief (which in other types of actions would justify dismissal of the appeal sua sponte), the record has been carefully studied and the research accomplished for the reason that the interests and welfare of a minor child are involved. The conclusion has been reached that the judgment below should be affirmed.

The two points raised by appellant are: (1) the trial court erred in its refusal to consider the wishes of the boy, Thomas; and (2) the trial court erred in its failure to consider evidence of interaction of the child with his parents, his sibling and with the community in general.

Since the motions to modify were filed, and the judgment appealed from was entered, after the effective date of the Dissolution of Marriage Act, Chapter 452 RSMo 1969 (Laws 1973, effective January 1, 1974), the statutory terms of that act are applicable. Section 452.415(2) RSMo 1969.

That act contains a section which sets forth guidelines for the trial court’s use in determining custody of a child, Section 452.-375, upon which the appellant bases his claims of error. This section provides:

“Factors to be used in determining custody of child
The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to, his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.” (Emphasis supplied)

Another section of the act pertinent here is Section 452.410, which provides:

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

These sections of the Dissolution of Marriage Act codified the long existing de-cisional law in this state, and such decisions are therefore still efficacious and authoritative.

It has long been the rule in this state that in custody proceedings, if the child involved is of sufficient age to form and express an intelligent preference as to which parent should be awarded custody, he should be permitted to do so, and the court should consider such statement of preference along with all the other facts and circumstances before it. Smith v. Smith, 435 S.W.2d 684, 687[7] (Mo.App.1968). However, a necessary corollary to that rule is that the preference and wishes of the child should be followed only if the welfare and interest of the child, as determined by all the evidence, are consistent with that preference. Fordyce v. Fordyce, 242 S.W.2d 307, 313[2] (Mo.App.1951); Graves v. Wooden, 291 S.W.2d 665, 668-669[4] (Mo.App.1956); J. v. E., 417 S.W.2d 199, 204[11] (Mo.App.1967). The provisions of Section 452.375(2), supra, are entirely consistent with these authorities.

The interests and welfare of the child remain the ultimate goal of paramount importance in such proceedings.

But appellant states in his brief in the statement of facts that “The Court refused to permit Thomas Bruce Kanady to testify as to his desire of custodial parent (Tr. 105).” The record does not support that assertion.

At the outset of the hearing, the father-appellant appeared pro se and placed his son on the stand as his first witness. The following appears:

“Q (By the father) Which parent would you prefer to live with?
A (By the son) You.”

The record then discloses that present counsel for appellant was in the courtroom advising with the appellant, and upon being interrogated by the court as to his function in the proceeding, he orally entered his appearance as counsel of record for appellant and took over that role for the balance of the proceeding.

Both the father and mother testified at length, and even aside from the direct testimony of the son, above quoted, it is unmistakably clear that his preference was to live with his father and that his father be awarded his legal custody. However, counsel for appellant placed the boy back on the stand in “rebuttal” and attempted to again elicit his preference, and the court sustained an objection. This was clearly not a refusal to permit the boy to state his preference, but simply a refusal to permit him to restate such preference, a fact by then crystal clear from the boy’s and other testimony before the court.

That such preference is established in the record is in truth conceded by appellant, for the reason that his first point relied on charges that the court erred in its “refusal to consider the wishes of the child”, an entirely different charge than that the court refused to permit the boy to express such wishes.

There is nothing in the record to indicate that the court below did not consider the wishes and preference of the boy along with all the other factors in evidence, in the exercise of its discretion as to the custody of the boy. The court did make it emphatically clear to the parties that the ultimate responsibility for this decision rested with it and not with the father, mother, or the boy. Appellant’s first point is ruled against him.

The appellant’s second point is that the court failed to consider the “interaction of the child with his parents, his sibling and with the community in general”, as required by Section 452.375(3), (4) and (5), supra. This area was fully covered in the hearing and there was much conflicting evidence. No useful purpose would be served by reiteration of such evidence in this opinion. Again, suffice it to say, that there is nothing in this record to indicate in any way that the trial court failed to consider and weigh all of this evidence in the judicial exercise of its discretion in arriving at its ultimate judgment. Indeed, the presumption that the trial court did consider all the evidence and decreed the custody of the boy by what it believed to be his best interests must be indulged and its determination thereof should not be lightly disturbed. L_E_(S_) v. J_A_E_, 507 S.W.2d 681, 684[4] (Mo.App.1974); J. L. W. n/k/a (sic) J. L. P. v. D. C. W., 519 S.W.2d 724, 729-730[8, 9] (Mo.App.1975); Larison v. Larison, 524 S.W.2d 159, 160-161[1, 2], (Mo.App.1975).

The function and scope of appellate review in this type of action are to review both the law and the evidence, and to make our own findings and conclusions. However, “initially, the determination of all factual issues rests with the trial court and due deference to its findings will be accorded unless they are clearly in conflict with the preponderance of the evidence or disclose an abuse of discretion.” C_ C_ v. J_ A_ C_, 499 S.W.2d 809, 811[2, 3] (Mo.App.1973). The appellant’s second point is ruled against him.

The duty of the court below (and of this court) in determining the award of custody of minors so as to preserve their welfare and best interest is always a difficult one. In a case of this nature, concerning a boy of this age, who expresses a definite preference as to his custodian, it is particularly onerous and fraught with unknown consequences. However, a concentrated study of this record shows that the decision of the court below was supported by competent evidence, and no abuse of discretion appears.

The judgment is accordingly affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Gerald D. WORD, Appellant.
    No. KCD 27534.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Gerald M. Handley, Acting Public Defender, James F. Speck, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

On an information charging armed robbery and one prior felony conviction, the defendant was found guilty by a jury and sentenced to ten years by the trial court.

The single issue raised is the propriety of the trial court’s overruling of defendant’s motion to suppress identifications on the ground that the lineup was so unnecessarily suggestive and so conducive to irreparable mistaken identification as to be violative of due process. Defendant relies alone on Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The judgment and conviction are affirmed.

The armed robbery out of which the conviction arose was the robbery of a taxi driver, one Fisher. He had deposited one fare at an address in a low rental housing project, and the robber approached the cab and had a flirtatious discussion with another female passenger who had remained in the cab. The robber then asked the driver to take him to a specified address, and the request was refused by the driver. The robber then produced a weapon and, after taking the money from the driver, entered a nearby building. The whole affair was observed by one Bartlett, a security guard, who did not realize a robbery was occurring. When later advised a robbery had, in fact, occurred, he arrested the defendant on the basis of his having seen him on the occasion in question and having known him from seeing him in the vicinity of the crime on three or four prior occasions.

Only Fisher appeared at the lineup and identified the defendant. Both Fisher and Bartlett made positive in-court identifications of the defendant as the robber.

The claim of the defendant here is on the ground that a lineup may be so suggestive and improper as to violate the due process rights of the defendant by causing an irreparable mistaken identification as is suggested in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967,18 L.Ed.2d 1199 (1967). Such an attack could not prevail in this ease because of the independent identification of the defendant by Bartlett whose identification could not have been based upon the lineup he did not participate in. The State likewise urges that the point is not preserved since the defendant did not object to the identification testimony of either Bartlett or Fisher when it was offered at trial. It is unnecessary, however, to rest the decision in this case upon the procedural ground asserted by the State, for clearly, there is on this record a factual basis to dispose of the issue, even aside from the independent identification of Bartlett.

Unlike the lineups in Stovall and in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the composition of this lineup is available for review. There were pictures taken of the four individuals at the lineup. They were in evidence at the motion to suppress and are here with the record. The trial court examined these photographs which were the only evidence presented to the trial court on the motion other than the statement of Fisher as to the basis of his appearing at the lineup. Thus, these pictures formed the basis for the trial court’s finding that the lineup was not unduly suggestive. The photographs have been examined, and the trial court’s holding appears to be clearly correct since the photographs do not in and of themselves produce any suggestion of the identity of the defendant as the culprit. The photographs are of four Negro males of approximately the same height and build, and there is no facial scarring or other distinguishing characteristics which would eliminate any of the other persons in the lineup as not being a suspect. Counsel for the defendant makes a valiant effort to point out the dissimilarities in facial characteristics, hair lengths and facial hair, as well as judgmental statements with respect to the apparent age and complexion of the persons shown in the photographs. The lineup does not require an exact physical conformity of the participants and such a requirement would make compliance impossible. The issue of differences in weight or complexion, or even height, as well as differences in hair styling, do not, in and of themselves, make a lineup unduly suggestive. Gaitan v. State, 464 S.W.2d 33, 35 (Mo.1971); State v. Hampton, 509 S.W.2d 139 (Mo.App.1974).

Judgment and conviction affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Raymond E. McCOLLUM, Appellant.
    No. KCD 27384.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.

      Willard B. Bunch, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment and sentence to consecutive 50-year terms on jury verdict finding Raymond E. McCollum guilty of forcible rape and sodomy.

No question is raised on the appeal as to the sufficiency of the evidence. The prose-cutrix testified that late in the evening of October 10, 1973, she was walking on a Kansas City street when a man and a woman, later identified as Raymond E. McCol-lum and his wife, drove up in an automobile and offered to take the prosecutrix to her destination. She got into the automobile, but instead of taking her where she requested, appellant drove her to an apartment where he and his wife and four children lived. There prosecutrix was forced against her will to undergo numerous sexual activities with appellant and his wife. Appellant and his wife threatened the pros-ecutrix with what she thought was a pistol and both struck her on several occasions.

The prosecutrix was permitted to leave the apartment after two or three hours. She promptly called the police department and officers responding to her call were directed by her to the apartment where appellant and his wife were placed under arrest.

Appellant testified that the prosecutrix, whom he did not know, came to his apartment on the night in question and was allowed to use the telephone. He stated that she remained there 15 to 20 minutes and was then driven in a car by him and his wife to an address given by the prosecutrix. He denied any sort of attack on the prose-cutrix.

Appellant’s first assignment of error is based upon the trial court’s overruling his motion to suppress a gas gun seized upon his arrest and in permitting the device to be introduced in evidence.

At a hearing on the motion to suppress, a police officer testified that when he met the prosecutrix after her call, she gave him a description of her attacker, which included a large tattoo on his chest and a tattoo of a knife on his arm. She told the officer that a small silver gun was used in the attack. She accompanied the officer to the apartment. He knocked on the back door, but received no response. He was leaving with the prosecutrix to take her to the hospital when another police car arrived and three officers went to the front door. They knocked and McCollum opened the door, wearing only his trousers. The tattoo described by the victim was apparent and they placed appellant under arrest and handcuffed him.

Two of the officers went to a bedroom in the rear of the apartment to place Mrs. McCollum under arrest. As he entered the bedroom, one of the arresting officers saw a pistol on a dresser just to the right of the bedroom door. One of the officers took the weapon, a gas pistol.

Appellant contends that the trial court erred in failing to sustain his motion to suppress because the weapon was the object of an unreasonable search, made without a warrant, and not incident to his arrest. The thrust of his argument is that it was only after he had been arrested and after the police had “invaded” the entire apartment and arrested his wife that they re-entered her bedroom and seized the gun, introduced in evidence against him. Appellant does not challenge the legality of the arrest of either himself or his wife.

The trial court properly concluded that the weapon was not the product of an unlawful search. Far from being a search such as was condemned in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the action of the police here was clearly within the limits laid down in that case. In that case the court stated (395 U.S. 762-763, 89 S.Ct. 2040):

“ * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

According to the arresting officer, the gun was in plain view when they entered the bedroom to arrest Mrs. McCollum. Under the above-quoted language of Chimel, its seizure was not the result of an unreasonable search. Appellant’s version that the gun was obtained upon a re-entry of the bedroom following the arrest is supported by neither the testimony of the police officers nor the testimony of Mrs. McCollum at the hearing on the motion to suppress. Appellant’s further citations of Root v. Gauper, 438 F.2d 361 (8th Cir. 1971), and United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972), are not in point, as neither involved a search incident to an arrest.

The fact that the weapon was observed and seized following appellant’s arrest and in another room does not make its seizure illegal. “ * * * And the Chimel decision has been construed not to prevent a search incident to an arrest from extending to rooms of a house other than the room where the arrest is made, where the arresting officers have reasonable cause to believe, based upon facts available at the time, that additional persons might be on the premises and might be involved in the offenses charged or might pose a security risk for the officers. Upon making a search for additional persons, the ‘plain view’ rule applies and justifies the seizure of evidence falling into the officers’ plain view, although the Chimel doctrine would have prevented any such search for the sole purpose of discovering evidence.” 68 Am.Jur.2d Searches and Seizures § 94, p. 749 (1973). See People v. Block, 6 Cal.3d 239, 103 Cal. Rptr. 281, 499 P.2d 961 (1971).

In this case the police knew that two people were involved in the attack and that a weapon had been employed. In such circumstances, they properly looked elsewhere in the apartment for the second participant and properly took the weapon, after observing it in plain view.

Appellant next contends that the trial court erred in failing to sustain his motion to suppress evidence pertaining to the victim’s identification of his automobile as the one in which she was taken to the apartment. According to one of the officers, he, accompanied by the victim, first went to the rear door of the apartment and knocked but no response was received. When they left to go to the front of the apartment, the victim pointed out an automobile parked on the street as the “suspect’s car.” Following the arrest, the auto was “impounded” and towed to police headquarters. No warrant for its seizure was obtained. Defense counsel’s motion to suppress evidence concerning the automobile was overruled. The objection was renewed at the trial and overruled and the victim was permitted to testify that she identified an automobile that she had ridden in earlier in the evening. She stated that she recognized it from, among other things, “two bag things like” in the rear seat. A police officer testified that the victim stated that she could identify the auto by the fact that she had torn a piece of upholstery off the rear seat. He testified that he examined the auto and found the torn upholstery.

On this appeal, appellant contends that the evidence pertaining to the automobile was the result of an illegal search and seizure. No evidence was presented regarding any items taken from the vehicle. The claim that the testimony of the victim identifying the vehicle was the product of an illegal search is tenuous, at the best, but any question is obviated by appellant’s own testimony that he had driven the victim in his auto to the destination she had requested, following her uneventful, by his version, visit to his apartment. See State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 140-141[2, 3] (1948).

Appellant’s next point is argued in his brief as follows:

“The prosecuting attorney began to question Detective Alfred Fracassa concerning a statement taken from the wife of the Appellant who was not charged in the same case with him. Appellant’s counsel objected and after some discussion among counsel and the Court, the prosecuting attorney asked no further questions on that line to that witness. (T. 145-T. 146)

“Thereafter, during the closing half of his argument, the prosecutor said as follows:

‘He couldn’t explain away this (indicating) nor could he explain away this except when he told Sergeant Cowdry that he had his shirt off. His testimony is the only testimony rebutting any of the State’s testimony, even though we know Detective Fra-cassa that he interviewed Sharon McCollum and . . . ’

“At that point, Appellant’s counsel objected and the Court sustained the objection and cautioned the jury not to consider the prosecutor’s statement. (T. 205) Appellant’s counsel then asked for a mistrial and it was denied. (T. 206)

“Counsel may not refer to facts which are not in evidence during his closing argument; State v. White, [Mo.], 440 S.W.2d 457.

“In the case at bar, counsel’s reference to a statement taken from the wife of the Appellant, in the context of his closing arguments, only leaves the jury with the implication that such a statement constituted an admission against the Appellant’s interest, and was highly prejudicial and inflammatory. State v. Woodard, [Mo.App.], 499 S.W.2d 553. Appellant was denied a fair trial because of this reason and should be given a new trial.”

The transcript shows that, following the remarks of the prosecutor above quoted, appellant’s counsel made the following objection:

“MR. SCHWARZ: We object to counsel’s reference to the fact that Sharon McCollum did not testify in this cause.

* * * * * *

“It is obvious to the jury she didn’t testify. She sat through the whole trial. He referred to her being questioned by Sergeant Fracassa and he knows quite well that the statutes of Missouri provide that the spouse of a defendant is an incompetent person to testify in a defendant’s case without the defendant’s consent and that the defendant’s fifth amendment constitutional rights to self-incrimination extend to his spouse through the statute and constitution of Missouri.

“Now we contend that this is error and prejudicial error for the prosecutor to mention this in his closing argument. I ask the Court to sustain the objection and admonish the jury not to consider the counsel’s statement and at this time we will ask the Court to do that.

“THE COURT: All right.

“(Proceedings returned to OPEN COURT:)

“THE COURT: The objection is sustained and the jury is instructed to disregard the last comment of Mr. Dakopolos.

“Counsel approached the bench and the following proceedings were had:)

“MR. SCHWARZ: And we ask the Court to declare a mistrial because of that.

“THE COURT: Motion for mistrial is overruled.”

Comparison of the argument here advanced with the objection voiced at the trial shows that appellant is now attempting to rely on a ground of objection, different from that voiced at the trial. This he cannot do and present a question for appellate review. State v. Davis, 482 S.W.2d 486, 488-489[6-8] (Mo.1972); State v. Stevens, 467 S.W.2d 10, 18[4] (Mo.1971).

Appellant finally attacks the constitutionality of Rule 24.04, which permitted his trial on a multiple count information. This contention is answered by the recent decision of the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), in which the court held unconstitutional § 546.480, RSMo 1969, requiring mandatory consecutive sentences in a case such as this, but held Rule 24.04 constitutional.

Appellant is, however, entitled to consideration of his sentencing in the light of State v. Baker, supra, the transcript here not showing that the consecutive sentences were not imposed under the compulsion of § 546.480. Accordingly, the judgments of conviction are affirmed; the consecutive sentences are set aside, and the cause is remanded for the limited purpose of resen-tencing by the court in an exercise of discretion as to whether the sentences shall run concurrently or consecutively.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Mabel Edd DANCER, Appellant, v. C. Douglas CHENAULT et al., Respondents.
    No. KCD 27080.
    Missouri Court of Appeals, Kansas City District.
    Sept. 8, 1975.

      James L. Muller and Dennis D. Palmer, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.
    Fred Bellemere, Jr., Kansas City, for respondent; Bellemere, Manford & Bellem-ere, Kansas City, of counsel.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

The issue is whether appellant is entitled to recover substantial damages from former constable, C. Douglas Chenault, of the 7th District Magistrate Court of Jackson County, because of his admitted failure affirmatively to apprise appellant that she was entitled to a 90% exemption upon the garnishment of her savings account in the Southeast State Bank, garnishee, as required by § 513.445, RSMo 1969.

Appellant claims that the trial court erred in awarding her (nominal) damages of $1.00 and costs, and against respondent Chenault alone, omitting to grant judgment also against his surety, State Surety Company.

On July 19,1971, Household Finance Corporation obtained judgment against appellant, then Mabfe Edd and Rochester Edd for $1,291.81. Execution issued thereon on March 7, 1972, from the magistrate court. Respondent Chenault thereupon issued Notice and Summons of Garnishment to the Southeast State Bank, returnable June 5, 1972. The bank was served with the garnishment notice of summons on March 15, 1972, and it first, on the next day, filed answer to interrogatories that it was “Unable to locate account in the name of Mable Edd Dancer.” On March 20, 1972, Household Finance’s counsel wrote Southeast State Bank that it had verified the fact that appellant had an account with it in her name. The next day, March 21, 1972, respondent Chenault (by a deputy, Cassidy) issued a “Release and Order on Garnishee” directing this: “You are hereby ordered to pay into this court the sum of $356.96 held by you as garnishee in the above entitled cause and upon such payment you will be discharged from all liability as such garnishee.” On March 22,1972 (the date is not clearly legible) the bank issued its cashier’s check to the “Clerk Seventh District Magistrate Court” for $356.96, and notified appellant that it had charged her account for that amount.

On March 23, 1972, appellant contacted her then counsel with respect to the instant garnishment. According to appellant, her “Affidavit for Claim of Exemption”, prepared by her counsel, was not filed, and received by respondent Chenault personally, until April 7, 1972, because she had to go out of town for a whole week or better to be with her sick mother in Arkansas. Prior to that conference, appellant had another conference on March 16,1972, with her then counsel in regard to a garnishment^ of wages upon her employer, American Building Services. Her counsel advised her that as head of a family and that only 10% of her wages could be held, “and he had it released for her.” Further, appellant first testified that her counsel advised her that her household goods would have been exempt up to $200 and that she would have the right to have other property up to the amount of $500 exempt, but she later recanted that testimony on the ground that she did not understand, and denied that her counsel told her that she could have those exemptions. It is fairly inferable from appellant’s entire testimony, and the trial court must have so found, because it entered judgment for nominal damages for appellant, that at the time of the garnishment she did not have knowledge of her exemption of property up to $500.00 in value other than 90% of her wages or under § 513.440. The case relied upon by respondents, State ex rel. Bellemere v. O’Neill, et al., 78 Mo.App. 20 (1899), is not in point. [Coincidentally and historically it is interesting to note that counsel for respondents, Mr. Fred Bellemere, Jr., in this garnishment-exemption case, stated to the trial court that the parties in the garnishment-exemption case of Bellemere, supra, were his grandfather, George L. Bellemere, and his brother, John H. Bellemere.] It was in Bellemere agreed that between the time of the garnishment and rendition of judgment against the garnishee the relator (the judgment debtor) notified the sheriff of his exemption claim. The failure of the sheriff to apprise relator that he was entitled to the exemptions under the statutes was the sole stated ground for recovery, the court noting “ * * * [T]here are cases, to some of which we have been referred, where the above stated breach has been coupled with one to the effect that the officer had failed to allow and set off the exemption. If the petition in the present case had contained such an additional allegation, possibly the case would occupy a more favorable attitude before us than it does.” (78 Mo.App. 27) Here, appellant pleaded that she filed an affidavit for claim of exemption with the magistrate court (it shows that respondent Chenault also received it) on April 7, 1972, but “defendant Chenault refused to hold such amount exempt.” Another distinguishing factor noted by the court in the Bellemere case (78 Mo.App. 26) is: “A claim of exemption may be made with effect at any time before the money is paid out or the property sold. (Citing cases.) It is therefore obvious that relator was apprised of his exemption rights in ample time to claim the same.”

Here respondent Chenault took it upon himself to direct the Southeast State Bank to pay the $356.96 into court. § 525.-410, relating to garnishments from magistrate courts provides that the garnishee may discharge himself by surrendering property, money or effects of the defendant to the constable. There is no provision for the garnishee to pay the money into court or the the clerk. Although the time does not appear from this record, the clerk of the magistrate court paid the money received from the Southeast State Bank to the judgment creditor, Household Finance. Respondent Chenault put it beyond his power to allow appellant her statutory exemption when she became aware of it and made demand upon him for it. It has been held that the constable is the only person who may set apart the exempt property to a judgment debtor under § 513.445 — the magistrate court has no jurisdiction to perform that act. State, to the use of Conklin v. Barada, 57 Mo. 562, 565 (1874), “[T]he court sustained the plaintiff’s theory to the effect that the protection of the execution debt- or’s rights in the premises, was incumbent on the constable, and could not be remitted to any course of procedure before the justice of the peace. In this we think the court properly declared the law;” and (57 Mo. 567), “We hold that the duty of the constable in the present case was to allow, to the extent of his authority, the exemption to which the debtor was entitled.” See also State ex rel. Lewis v. Barnett, et al., 96 Mo. 133, 8 S.W. 767, 769 (1888); Eisenberg v. Northwestern Turn and Liederkranz Ass’n, 70 Mo.App. 436, 438 (1897), holding that a circuit court, on appeal from a judgment of a justice’s court, has no jurisdiction to hold as exempt from execution a garnishment debt, “The money should have been paid by the garnishee to the sheriff, and Paulus given the opportunity to make his claim of exemption to him, where the law says he may make it”; and Pacific Finance Loans, Inc. v. Richardson, et al., 412 S.W.2d 509, 512[1, 2] (Mo.App.1967).

There is no claim here that appellant made any knowing waiver of her right to exemption, or that she was guilty of laches in not filing her claim of exemption with respondent Chenault when she first became aware of that right.

Respondent Chenault, in addition to admitting that he did not advise appellant of her exemption rights on the garnishment of the Southeast State Bank, testified that it was his customary practice to notify judgment debtors of exemption rights on executions but not on a garnishment. That is not a correct interpretation of the duties imposed on him by § 513.445. The right to be notified of exemption rights at the time of the levy applies not only to executions but to garnishments issued in aid of executions. See these ancient cases announcing that rule, unchanged to date: State to the Use of Lalley v. Carroll, et al., 9 Mo.App. 275, 279 (1880) [citing Barada, supra]; State to the Use of Maher v. Sondag, 15 Mo.App. 312, 315 (1884); Bellemere, supra, loc. cit. 78 Mo.App. 26. These cases and others such as State to the Use of Woodrome v. Freeman, 173 Mo.App. 294, 158 S.W. 726 (1913); State ex rel. Cotton v. Lindsay, et al., 73 Mo.App. 473 (1898); Parketon v. Pugsley, 142 Mo.App. 537, 121 S.W. 789, 791 (1909); make the constable liable on his official bond for failure to apprise the judgment debtor of his exemptions and to set off the same to him if claimed.

Defendant State Surety Company was a party below and filed answer admitting that it had issued an official bond to respondent Chenault. The bond, as required by § 63.030, RSMo 1969, was conditioned in the words of that statute, part of which requires payment to the proper parties all money received by him by virtue of his office, § 63.120 provides that when proceedings are issued against the constable on his bond, his sureties shall be liable, jointly or severally in the same action, and may or may not be joined with him. State Surety was of course joined below, but no judgment was rendered against it, which was error.

There is no dispute that $356.96 of appellant’s funds were garnisheed from her bank account, $321.26 of which was exempt under the statute. The latter amount, of which appellant was deprived, is the measure of her damages, plus interest from the date of collection thereof, March 22, 1972, and costs.

The judgment is reversed and the case is remanded with directions to enter judgment in favor of appellant, Mabel Edd Dancer, against respondent, C. Douglas Chenault, and his surety, State Surety Company, in the amount of $321.26, plus interest thereon from March 22, 1972, and for costs.