text:
    In re Pamela Jeanette (Delaney) KERR, a minor. Donald Frederick DELANCY, Appellant, v. Ruby L. KERR, Respondent.
    No. 37740.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 18, 1977.
    Motion for Rehearing or Transfer to Court en banc of Transfer to Supreme Court Denied March 15, 1977.
    Application to Transfer Denied April 11, 1977.

      Ray Dickhaner, Richeson, Roberts, Weg-mann, Gasaway, Stewart & Schneider, Hillsboro, for appellant.
    J. W. Thurman, Dana Hockensmith, Thurman, Nixon, Smith, Howard, Weber & Bowles, Hillsboro, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Donald Frederick Delaney has appealed from the judgment of the Circuit Court of Jefferson County dismissing his petition to set aside the decree of adoption of Pamela Jeanette (Delaney) Kerr.

For a better understanding of the issues we shall set forth certain facts as to which there is no dispute, some of which are from the allegations in the pleadings and others are set forth in the findings of the trial court.

Pamela Jeanette was born in St. Louis, Missouri on July 28, 1965, the child of Sandra and Donald F. Delaney. Following a hearing, the Juvenile Division of the Circuit Court of Jefferson County determined that the child was neglected and that the natural parents had refused to provide proper support for its well being and directed that effective December 29, 1966, the custody of the child be placed in the Division of Welfare, Jefferson County, Missouri, which placed the child with Ruby L. Kerr for care and maintenance. In January, 1972 Ruby L. Kerr filed a petition in the Juvenile Court of Jefferson County seeking to adopt Pamela Jeanette and temporary custody was placed in Ruby L. Kerr. She alleged in the petition for adoption that the natural mother had consented in writing to the adoption and that the natural father had willfully neglected to provide proper care and maintenance for more than one year immediately preceding the filing of the petition. A final decree of adoption was entered on March 25, 1974.

On June 19, 1973, in the Domestic Relations Court of Dallas County, Texas, Donald was granted a divorce from Sandra. The court purported to award the care and custody of Pamela Jeanette to Sandra, and it ordered Donald to pay, starting July 1, 1973, $40.00 per month as child support, none of which was ever paid.

The record does not reveal the circumstances whereby Donald obtained possession of Pamela Jeanette in 1975 and removed her to Irving, Texas, but pursuant to a Writ of Habeas Corpus filed in the Domestic Relations Court of Dallas County, Texas, by Ruby L. Kerr, Pamela Jeanette was ordered to be and was returned to the custody of Ruby L. Kerr.

Following the return of Pamela Jeanette to Ruby L. Kerr, appellant filed a petition in Juvenile Division of the Circuit Court of Jefferson County to set aside the decree of adoption entered on March 25, 1974. The court dismissed that petition, and also adjudged that appellant “pay into this Court as an attorney’s fee the sum of $500.00.” It is from this judgment that appellant has appealed.

Appellant alleged that he did not appear at the adoption proceedings, was not represented by counsel and “had no recollection of receiving any notice thereof,” and that he “first learned of [the] adoption in July 1975, when the child was taken from his custody by a Writ of Habeas Corpus.” He then alleged that the decree of adoption is null and void because the court did not have jurisdiction for the reason that a decree of adoption can not be entered without the consent of the natural father unless it is shown that the father willfully failed to support the child or abandoned the child for one year, and there was no abandonment of Pamela Jeanette by him because he and Pamela Jeanette “exchanged much correspondence and telephone calls during the period in which it is alleged that [he] abandoned” her. Appellant “suggests” to the court that at no time by either word or deed did he evidence any of the required intent or mental attitude to foresake his status as that of parent during the period in question, and that to vacate the decree of adoption would be in the best interest of Pamela Jeanette because he had remarried and is able to provide an adequate and suitable home for her. His final allegation is that “since he was not personally served with notice of [the] proceedings” (emphasis added), the adoption proceeded on “a quasi-default basis” and the statutory rules for vacating and setting aside a default judgment should apply and that at the time the decree of adoption was entered he had a good and valid defense to the adoption, namely “the lack of his consent * * * and the lack of any fact sufficient to allow the court to proceed in the absence of his consent.”

Consent to an adoption is not required from “a parent who has, for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.” § 453.040 RSMo 1969. However, even though his consent is not required, a writ of summons and a copy of the petition must be served on him, In re Adams, 237 S.W.2d 232 (Mo.App.1961), and if the summons cannot be personally served in the manner prescribed in § 506.150 RSMo 1969, “the service shall be made by mail * * * as provided in section 506.160 RSMo.” In a responsive pleading Ruby L. Kerr alleged that in the adoption proceeding appellant was “properly served by registered mail in accordance with the adoptive statutes.” Although the record before us contains no proof of this allegation (but the trial court could take judicial notice of its own records) the trial court found and recited in its judgment that “service by registered mail of said petition for adoption was had upon [appellant] on August 29, 1972.” There is no specific challenge on this appeal to that finding.

It is clear that appellant has not alleged facts which would authorize a challenge to the decree of adoption on the basis that he, as the natural father, was not given the required notice of the adoption proceedings. However, as stated in In re McDuffee, 352 S.W.2d 23 (Mo. banc 1961) “the broad equitable powers vested in our courts of general jurisdiction (and which are also vested with jurisdiction of the laws of this state relating to adoption) empower them to vacate a decree of adoption upon any of the classical grounds that entitle such courts to vacate any other decree, such as judgments procured by fraud or to prevent injustice where such final judgments were the result of unavoidable accident or excusable mistake.”

There clearly are no allegations in the petition which if proved would authorize a finding that the decree of adoption was the result of accident or mistake. However, appellant asserts that he is entitled to have the decree of adoption vacated because of fraud, and in his brief he states his contention as follows: “Appellant’s position is that fraud was committed on the court by the introduction of testimony or statements to the Court and Welfare Agency concerning appellant’s alleged abandonment of the child and by the further willful withholding of the evidence of letters, phone calls and communications between appellant and the child which would have negated the Court’s finding of abandonment.”

The decree of adoption was entered on March 25, 1974, the petition to set aside that decree was filed October 14,1975; over one and a half years later. In § 453.140 RSMo 1969 it is provided that “After the expiration of one year from the date of entry of the decree of adoption, the validity thereof shall not be subject to attack in any proceedings, collateral or direct, by reason of any irregularity in proceedings had pursuant to this chapter.”

This is not a case where there was any fraud practiced upon the court pertaining to its acquisition of jurisdiction of the subject matter, see In re Novack, 536 S.W.2d 33 (Mo. banc 1976), and it is not a case where an essential party or person was not given the statutory and required notice. In re Adams, supra. Apparently appellant elected not to avail himself of the opportunity to appear in person or by counsel at the hearing on the petition for adoption and present the evidence he now asserts would have been material. The basis advanced by appellant to challenge the decree of adoption falls squarely within the meaning of the term “irregularity in proceedings” as used in the above statute of limitation. This unquestionably is correct because even in the absence of this statute appellant would not have been entitled to challenge the decree for the reason alleged in his petition.

It is the well settled rule that in the absence of most impelling circumstances a court will not interfere with a judgment unless there was fraud in the procurement of the judgment extrinsic or collateral to the matters tried upon which the judgment was entered. Reis v. La Presto, 324 S.W.2d 648, 653 (Mo.1959), and “A judgment cannot be set aside on the ground of fraud unless it is shown that fraud was practiced in the very act of obtaining the judgment; that the fraud went to the manner in which the judgment was procured rather than operating upon matters pertaining to the judgment itself; that the fraud prevented the unsuccessful party from presenting his case or defense; or that the fraud otherwise went to extrinsic, collateral acts or matters not before the court for examination or determination in the suit or proceeding in which the judgment was rendered. * * * Such a proceeding cannot be used to obtain a further hearing upon matters, which were or could have been brought before the court to make a case or defense, either because the parties found further evidence bearing upon the truth or falsity of the testimony there, or because the parties neglected to litigate such matters in the original case. ‘Courts of equity do not grant such relief for the purpose of giving the defeated party a second opportunity to be heard on the merits of the case.’ ” Hockenberry v. Cooper County State Bank of Bounceton, 338 Mo. 31, 88 S.W.2d 1031, 1036 (Mo.1935). Relating directly to the point in issue, we find this statement in 2 Am.Jur.2d Adoption § 75: “While a judicial determination of some particular fact, such as abandonment of the minor by his parent, or the consent of his next of kin to the adoption, may be essential to the exercise of jurisdiction to enter the order of adoption, this does not make it essential to the jurisdictional validity of the decree that the fact be determined upon proper evidence, or necessarily in accordance with the truth; a mere error cannot affect the jurisdiction, and the determination must stand until reversed on appeal, and hence cannot be collaterally attacked. If this were not the rule, the status of adopted children would always be uncertain, * * (Emphasis added.) See also Smith v. Benson, 542 S.W.2d 571 (Mo.App.1976).

Appellant’s contention that the allowance of attorney fees as costs is erroneous must be sustained. As a general rule attorney fees are personal in nature and unless authorized by statute or allowed by a court of equity in what has been described as “very unusual circumstances” they are not allowable as costs. The circumstances of this case do not fall within the exceptional rule announced in Johnson v. Mercantile Trust Company National Association, 510 S.W.2d 33 (Mo.1974). We consider this case to be comparable to any action in which the jurisdiction of a court of equity is sought to set aside an instrument in writing or a judgment.

The dismissal of the petition is affirmed. The allowance of attorney fees is reversed.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, and Wanda J. Tackett, Defendants-Respondents. BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, and Joanne Barbarick, Defendants-Respondents.
    Nos. 9762, 9763.
    Missouri Court of Appeals, Springfield District.
    Jan. 31, 1977.
    Motion for Rehearing or to Transfer Denied Feb. 17, 1977.
    Application to Transfer Denied April 11, 1977.

      Thomas A. Vetter, Jefferson City, for plaintiff-appellant.
    Charles B. Fain, Jefferson City, for respondent Industrial Commission of Missouri.
    Terry C. Allen, Jefferson City, for respondent Division of Employment Security.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   STONE, Presiding Judge.

These appeals in the above-captioned consolidated cases involve and challenge the allowance to claimants, Mrs. Joanne Bar-barick and Mrs. Wanda J. Tackett, of unemployment benefits under the Missouri Employment Security Law (the Law). Chapter 288. Both claimants were employed by the Belle State Bank (a “country bank”), Mrs. Barbarick as an assistant cashier and Mrs. Tackett as a bookkeeper, when the ownership of the bank changed hands on July 26, 1973,. On August 16, 1973, shortly after a meeting of the new Board of Directors, vice-president Hunter informed claimants and other bank employees of certain changes, which the new management proposed to put into effect on a trial basis on September 1, 1973. In the meantime, Mrs. Barbarick voluntarily quit her job on the morning of August 17 and Mrs. Tackett followed suit on August 23.

On August 27, each filed a claim for benefits under the Law; and on September 13, a deputy of the Division of Employment Security (the Division) handed down a “determination” in each case finding that claimant was disqualified for the reason that (as summarized in each determination) the proposed changes were “not unreasonable and did not give the claimant good cause to quit.” On claimants’ separate appeals from the deputy’s determinations, an appeals referee of the Division (the referee) conducted an informal consolidated hearing at which, with none of the parties represented by counsel, both claimants and Dean Hunter, the executive vice-president of employer Belle State Bank, testified at length and without limitation or restriction by evi-dentiary rules or otherwise. For that matter, the transcript is liberally laced not only with the garden varieties of testimonial statements commonly received in administrative hearings of this character but also with self-serving statements, conclusions and comments, some of which were in response to the referee’s express invitation. In due time, the referee made written findings, concluded that claimants were not disqualified for benefits, and reversed the deputy’s determinations to the contrary. These findings and decision of the appeals referee, subsequently adopted by the members of the Industrial Commission (the Commission) in orders denying the Bank’s applications for review, became the findings and decision of the Commission for the purpose of judicial review. § 288.200(1); Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403, 404 (Mo.App. 1972); Associated Grocers’ Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 397(1) (Mo.App. 1965).

Before proceeding to the testimonial evidence presented to the referee, we note certain relevant and significant statutory provisions bearing upon claimants’ right to unemployment benefits, and then remind ourselves of the scope of our appellate review. When the present Law was enacted in 1951, the legislature declared that “the public good and the general welfare” required such enactment “for compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own ” [Laws of Mo. 1951, pp. 565-566] — a declaration which has been carried forward unchanged to this date. § 288.020(1). (All emphasis herein is ours) And, since 1957 the Law has contained a provision expressly disqualifying a claimant for benefits if “he has left his work voluntarily without good cause attributable to his work or to his employer . Laws of Mo. 1957, p. 541; now § 288.050, subd. 1(1). Thus, instant claimants qualified for benefits under the Law only if they quit their employment for good cause, and the burden of establishing such qualification for benefits rested on them. Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1007, 291 S.W.2d 166, 173(2) (banc 1956); O’Dell v. Division of Employment Security, 376 S.W.2d 137, 142(7) (Mo. 1964).

As to questions of fact, our appellate examination is limited to ascertaining upon the whole record whether the Commission reasonably could have made its findings and decision, viewing the evidence in the light most favorable to the award. However, as to questions of law, we are not bound by decisions of the Commission [Citizens Bank of Shelbyville v. Industrial Commission, 428 S.W.2d 895, 897(4) (Mo.App. 1968); Combustion Engineering, Inc. v. O’Connor, 395 S.W.2d 528, 529(1, 2) (Mo.App. 1965)]; and, “[w]hether the favorable evidence establishes good cause is a question of law.” Citizens Bank of Shelbyville v. Industrial Commission, supra, 428 S.W.2d at 897(3). See Poggemoeller v. Industrial Commission, 371 S.W.2d 488, 498(5) (Mo.App. 1963). In reviewing the record, we remain mindful that § 288.020(2) requires a liberal, yet fair and reasonable, construction of the Law, and that the disqualifying provisions of § 288.-050 must be strictly construed. O’Dell v. Division of Employment Security, supra, 376 S.W.2d at 141-142(3-5); Kroger Company v. Industrial Commission, 314 S.W.2d 250, 254(3) (Mo.App. 1958).

Turning to the facts, we find that the changes proposed by the new bank management, which claimants cited as motivating and justifying their voluntary termination of employment, pertained to the periodic wage payment dates, sick leave benefits, and scheduling of bank employees’ working hours each week, (a) Wage payment dates. Employees were being paid every two weeks. The proposed change was to pay them the first and fifteenth of each month, (b) Sick leave benefits. The former management had granted sick leave of seven days each year with any unused sick leave carried over and accumulated. The new management proposed to grant annual sick leave of five and one-half days, any unused portion of which could not be carried over and accumulated, (c) Scheduling of working hours each week. The bank was open for business five and one-half days each week, with banking hours from 9 A.M. to 3 P.M. on Monday through Friday and 9 A.M. to noon on Saturday. Claimants testified that they “started” at 8 A.M. and “worked until done,” whenever that might have been. However, there was no showing or suggestion that any record reflecting the number of hours worked by each employee during any day or week had been kept. Under the former management, each claimant did not work one day during the week. The plan outlined by new management contemplated elimination of this one day off work each week. Vice-president Hunter insisted that would not necessarily have increased the number of hours either claimant would have worked during the week — a statement for which no explanation or elaboration was volunteered or sought.

Claimants also complained that they would have lost nine days’ holiday pay each year by reason of the proposed elimination of one day off work each week. However, Hunter stated positively that the proposed plan recognized and granted the same holidays with pay, and such explanation as claimants undertook concerning their apprehension that holiday pay would have been eliminated was so diffuse, vague, am-phibological, uninterpretable and meaningless that it afforded no evidentiary basis for administrative or judicial validation of that apprehension.

It is important to note and bear in mind that none of the foregoing proposed changes were presented to claimants as being firm and final. On the contrary, Hunter pointed out to claimants (as they conceded ) that the new owners had purchased the bank only recently and were “in sort of a state of limbo,” that the proposed changes were not hard-and-fast rulings and “adjustments” would be made, and that “we would have to wait and see what the final outcome would be.” And, the referee recognized and confirmed in his written “Findings” that “[t]he employer’s president [Reed] told the claimants that the changes were only temporary [and] . . . that further adjustments were being considered and he asked them to wait and see the final result of the changes.”

The evidence presented to the referee showed that indeed shortly thereafter (and apparently before the proposed changes were to be placed in effect on a trial basis) “adjustments” were made, one of them being a return to the prior practice of scheduling working hours so that each employee had “a day off [each week] as previously,” thus eliminating any basis for complaint in one of the three areas outlined supra, namely, scheduling of working hours each week, and thereby also disposing of the related and dependent nebulous complaint about possible loss of holiday pay.

It is self-evident that, in and of itself, simply changing wage payment dates from every two weeks to the first and fifteenth days of each month, could not have adversely affected any employee; and, there was no evidence or showing that it did. This area of complaint was patently sans substance or validity.

In the sole remaining area of complaint, to wit, sick leave benefits, the proposed change from (a) sick leave of seven days each year with any unused portion thereof carried over and accumulated to (b) sick leave of five and one-half days each year which, if not used, could not be carried over, was implemented and in effect at the time of hearing. We note parenthetically Hunter’s voluntary explanation that the new owners made this change because they thought the former allowance “was excessive . . . the way the pay scale was.” That explanation aside, it appears that the reduction in sick leave benefits was the only implemented change which could have had any economic effect (and that quite limited and relatively minor) upon claimants or other bank employees.

The determinative issue here is whether or not the above-outlined state of facts afforded “good cause," within the contemplation and intent of the Law, for claimants to voluntarily quit their jobs. In considering and resolving this issue, we bear in mind not only that the words “good cause” are not susceptible of precise definition and have no fixed meaning, but also that those words should be accorded “their plain and rational meaning in the light of the purpose of the Employment Security Law” [Citizens Bank of Shelbyville v. Industrial Commission, supra, 428 S.W.2d at 899(7) ], i.e., to set aside funds “to be used for the benefit of persons unemployed through no fault of their own." § 288.-020(1).

Obviously, “good cause,” as used in the Law, should and does contemplate and require a cause reasonably sufficient to justify an employee in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed [Associated Utility Services, Inc. v. Board of Review, 131 N.J. Super. 584, 331 A.2d 39, 40 (1974); Zielenski v. Board of Review, 85 N.J.Super. 46, 203 A.2d 635, 638(4) (1964); O’Neal’s Bus Service, Inc. v. Employment Security Com’n., Del.Super., 269 A.2d 247, 249(3) (1970)], or, otherwise stated, a cause which reasonably would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment with its certain wage rewards in order to enter the ranks of the compensated unemployed. Sun Shipbuilding & Dry Dock Co. v. Unemployment Comp. Board of Review, 358 Pa. 224, 56 A.2d 254, 261(10) (1948); Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827, 829(1) (Fla.App.1973). And “good cause” has been appropriately characterized as requiring not only the merely negative virtue of freedom from fraud but also positive conduct which is consistent with a genuine desire to work and be self-supporting. Lattanzio v. Unemployment Comp. Board of Review, 461 Pa. 392, 336 A.2d 595, 598 (1975); Welker v. Unemployment Comp. Board of Review, 180 Pa.Super. 534, 119 A.2d 658, 659(3) (1956).

To constitute good cause, the circumstances motivating an employee to voluntarily terminate employment must be real not imaginary, substantial not trifling, and reasonable not whimsical, and good faith is an essential element. The standard as to what constitutes good cause is the standard of reasonableness as applied to the average man or woman, and not to the supersensitive. Conrad v. Altmiller, 89 Idaho 214, 404 P.2d 337, 338 (1965); Uniweld Products, Inc. v. Industrial Relations Comn., supra, 277 So.2d at 829(2).

It is plain and indisputable that the legislative purpose of the Missouri Employment Security Law was when enacted [Laws of 1951, pp. 565-566], and still is [§ 288.020(1)], to provide monetary relief for persons “unemployed through no fault of their own ” and thereby to alleviate the distressing consequences of involuntary unemployment; and that, on the other hand, the Law was not designed or intended to benefit those who voluntarily choose to become idle. If every “reason” which appeals to an employee’s head or heart were to be accepted as “good cause” for his or her voluntary termination of employment, the title of the Employment Security Law would become a hollow and misleading mockery and the Law itself would afford open opportunity, if not implied invitation, for abundant abuse and periodic perversion.

As hereinbefore noted, at the same time claimants were initially informed on August 16 of the changes which the new management proposed to put into effect on a trial basis some two weeks later, to wit, on September 1, claimants also were told (as the referee summarized it) “that the changes were only temporary [and] that further adjustments were being considered and he [vice-president Hunter] asked them to wait and see the final result of the changes.” Rejecting this request, claimant Barbarick voluntarily quit the next morning and claimant Tackett likewise quit on August 23.

Applying the standard of reasonableness as reckoned by what an average employee would have done under the same or similar circumstances, and bearing in mind that there was no showing or suggestion that termination of employment by either claimant was predicated upon urgency or necessity, we are of the opinion that claimants’ petulant and hasty action in voluntarily quitting before any changes had been plaeed*in effect and without awaiting the “further adjustments” under consideration by the new management and thus without knowledge of “the final result” of such changes as might be subsequently implemented may not be accepted and approved as reasonable conduct motivated by “good cause.” Nor may claimants’ abrupt and impetuous abandonment of their employment be rationalized and regarded as reasonable conduct motivated by “good cause” on account of the subsequently implemented changes, to wit, (a) the innocuous change in wage payment dates and (b) the change in sick leave benefits which in any event could have had no more than limited and relatively minor economic effect upon claimants. In fine, there is nothing in the record before us which should or may be recognized by the law as “good cause” for claimants’ voluntary termination of employment.

Although the foregoing is dispositive of the present appeal, another aspect of the claims in suit and the hearing thereupon conducted by the referee, albeit not presented by the parties, obtrudes on the face of the record and merits sua sponte comment here, which should be welcomed (so we believe) by those intrusted and charged with judicious and prudent administration of the Law and disbursement of funds only to qualified claimants. Since enactment of the first Missouri legislation in this field, then more appropriately (we think) and certainly more forthrightly entitled as the “Unemployment Compensation Law” [Laws of 1937, p. 574], one of the statutory conditions of eligibility to receive benefits has been that “he [or she] is able to work, and is available for work ” [Laws of 1937, p. 590]; and, since 1943 that quoted condition has been statutorily defined and delimited by the explicit proviso “that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work.” Laws of 1943, p. 933; now § 288.040, subd. 1(2). Thus, as cast in the distinctive style of our departed companion, Ruark, P. J., “[t]he whole kernel in the nut is that [a] claimant is not entitled to draw pay because she lost [or quit] her job” but rather “[t]he compensation is payable because she can’t get another one. She must really and sincerely look for the job, not wait for the job to seek her out. Nor will a lackadaisical, half-hearted, or occasional effort suffice.” Fly v. Industrial Commission, 359 S.W.2d 481, 483-484(3) (Mo.App. 1962).

Again, in discussing the meaning and purpose of the above-quoted explicit proviso, we said in Rapp v. Industrial Commission of Missouri, 360 S.W.2d 366, 370(6) (Mo.App. 1962), that “[i]n putting upon the added language, ‘honestly and faithfully, its plain and rational meaning’ [Cummins v. Kansas City Public Service Co., 334 Mo. 672, 684, 66 S.W.2d 920, 925; Artophone Corp. v. Coale, 345 Mo. 344, 353, 133 S.W.2d 343, 347] and in taking the words of the amended statute ‘in their plain or ordinary and usual sense’ [Section 1.090], we consult the same authority, to which our brethren of the high court have turned; and, so doing, we conclude that, to be deemed ‘available for work’ under the statute [Section 288.-040, subd. 1(2)], which now includes the specific requirement that the unemployed person ‘has been and is . earnestly seeking work,’ a claimant must adduce competent and substantial evidence from which the Commission reasonably may find, and is persuaded to find, that such claimant’s search for work is ‘zealous, ardent, sincere, hearty,’ since ‘earnest’ is synonymous with those terms and ‘always connotes sincerity.’ Webster’s New International Dictionary, Second Edition, p. 808.” To the same effect, see Webster’s Third New International Dictionary, p. 714; The American Heritage Dictionary Of The English Language, p. 409; The Shorter Oxford English Dictionary, Third Edition, p. 578.

In Fly and Rapp, supra, the transcripts on appeal affirmatively disclosed and identified the employers to whom, and the dates on which, each of those claimants had applied for employment. With none of the parties in the instant cases then represented by counsel, such testimony as pertained to instant claimants’ alleged applications for employment elsewhere was elicited by the referee and is here quoted marginally in its entirety. On the face of it, the referee’s shallow, superficial and cursory interrogation of claimants apparently intended to satisfy the above-quoted statutory condition of eligibility for benefits, i.e., that each of them was “actively and earnestly seeking work,” was patently inadequate and insufficient to admit of an informed conclusion as to whether or not either claimant had satisfied that statutory condition of eligibility.

Furthermore, it appears that, when the referee inquired what wage claimant Barbarick was “willing to accept” and she declared unequivocally “[w]ell, nothing lower than I was receiving [approximately $606.67 per month],” she prima facie disqualified herself for benefits under the Law. For, it has been held that “a claimant cannot unduly restrict her availability for employment by arbitrarily limiting the character of work, the area within which employment is sought or would be taken, or the wage which would be acceptable.” Blackman v. Industrial Commission, 491 S.W.2d 18, 24(8) (Mo.App. 1973). See also Rapp, supra, 360 S.W.2d at 371. Additionally, cognizant only of the geographical location and population of Belle (and that by taking judicial notice thereof), and with no other evidence bearing upon this important and relevant subject, neither the referee nor any reviewing agency or court could have known what other positions, if any, then paying no less than $606.67 per month, there might have been in Belle or that vicinity for an employee with the qualifications of claimant Barbarick.

In view of the provisions of § 288.-070, subds. 5 and 6 [Laws of 1972, p. 919], in effect at the time of the initial redetermi-nation by the appeals referee declaring that claimants were not disqualified for benefits, claimants no doubt already have received all of the benefits payable under the Law, none of which can be recovered from them. However, none of those benefits are chargeable, and none shall be charged, to or against the employer, Belle State Bank. § 288.070, subd. 7 [Laws of 1972, p. 919; now Laws of 1974, p. 867]. See Dubinsky Brothers, Inc. v. Industrial Commission, 373 S.W.2d 9, 16(6) (Mo. banc 1963). Accordingly, it is the judgment of this court that (a) the findings and decision of the Industrial Commission adopting the findings and decision of the appeals referee should be, and hereby are, set aside and for naught held, (b) the judgment of the Circuit Court of Maries County approving and adopting those findings and decision as its “decision” should be, and hereby are, set aside and for naught held, and (c) this cause should be, and hereby is, remanded to the Missouri Department of Labor and Industrial Relations, now invested with all of the powers, duties and functions of the Industrial Commission under and by virtue of Section 8 of the Reorganization Act of 1974 [Laws of Missouri 1974, p. 542] with directions to take such action as may be necessary to implement fully the foregoing opinion and the judgment of this court.

HOGAN and FLANIGAN, JJ., concur.

      . Except as otherwise specifically stated, all statutory references herein are to RSMo 1969, V.A.M.S.

      . From the official state highway map, we know judicially that the town of Belle is in the northeast comer of Maries County just south of the east-west boundary line between that county and Osage County on the north, and that this location is some twenty-five miles north of Rolla and nineteen miles south of Linn [In re Village of Lone Jack, 419 S.W.2d 87, 91(6) (Mo. banc 1967); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118(1) (Mo.App. 1975); Galemore v. Haley, 471 S.W.2d 518, 520 (Mo.App. 1971)]; and, as a matter of general public knowledge among Ozarkians of which we need not and do not profess ignorance [Elder v. Delcour, 364 Mo. 835, 838, 269 S.W.2d 17, 19(2), 47 A.L.R.2d 370 (banc 1954)], we observe that the topography of that area “is stamped [with] the grandeur of the magnificent Ozark uplift.” Hobart-Lee Tie Co. v. Grabner, 206 Mo.App. 96, 104, 219 S.W. 975, 977(4) (1920), quoted in Elder v. Delcour, supra, 364 Mo. at 846, 269 S.W.2d at 25. The United States decennial census reports, from which the courts frequently glean information [e.g., Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Moulder v. Webb, 527 S.W.2d 417, 419(4) (Mo.App. 1975); City of Ash Grove v. Davis, 418 S.W.2d 194, 197(7) (Mo.App. 1967)], reveal that in 1960 Belle was a community of some 1,016 souls, all of whom resided in Maries County, and in 1970 embraced 1,133 persons, 91 of whom resided in Osage County north of the aforementioned east-west county boundary line.

      . Claimant Barbarick was an assistant cashier then being paid $140 per week (approximately $606.67 per month), and claimant Tackett was a bookkeeper then being paid $95 per week (approximately $411.67 per month). When claimants voluntarily quit, each insisted that she be paid at her regular wage rate for all unused sick leave accumulated to that date; and, although neither convinced nor agreeing that employees were entitled to translate or convert unused sick leave into cash, the new management acceded to claimants’ demands and paid the gross sum of $728 (after withholding tax, $594.88) to claimant Barbarick for 26 days of accumulated sick leave and the gross sum of $228 (after withholding tax, $180.04) to claimant Tackett for 12 days of accumulated sick leave.

        . Citizens State Bank of Shelbyville v. Industrial Commission, 428 S.W.2d 895, 897(2) (Mo.App. 1968); Buttinger v. Ely & Walker Dry Goods Co., 42 S.W.2d 982, 984(3) (Mo.App. 1931). SeeWiison v. Morris, 369 S.W.2d 402, 407(7) (Mo. 1963); Lambert Brothers, Inc. v. Tri City Construction Co., 514 S.W.2d 838, 842 (Mo.App. 1974).

      . Roby v. Potlatch Forests, 74 Idaho 404, 263 P.2d 553, 555(2) (1953); Barclay White Co. v. Unemployment Comp. Board of Review, 356 Pa. 43, 50 A.2d 336, 340 (1947); Sledziowski v. Unemployment Comp. Board of Review, 195 Pa.Super. 337, 171 A.2d 546, 547 (1961); Kessler v. Industrial Commission, 27 Wis.2d 398, 134 N.W.2d 412, 414(4) (1965). For a factually unique case in which “good cause” was not found and benefits were denied to a female employee who voluntarily quit work on account of the alleged “sexist” attitude of her employer and fellow employees, see McCain v. Employment Division, 17 Or.App. 442, 522 P.2d 1208 (1974).

      . Department of Industrial Relations v. Estes, 45 Ala.App. 360, 231 So.2d 137, 140 (1970); Dwight Mfg. Co. v. Long, 36 Ala.App. 387, 56 So.2d 685, 686(2) (1952); Roby, supra note 5, 263 P.2d at 556(3); Lattanzio v. Unemployment

        Comp. Board of Review, 461 Pa. 392, 336 A.2d 595, 598 (1975); Bentz v. Unemployment Comp. Board of Review, 190 Pa.Super. 582, 155 A.2d 461, 463(7) (1959).

      . See Andala Co. v. Ganus, 269 Ala. 571, 115 So.2d 123, 125(3) (1959); Goldstein v. Unemployment Comp. Board of Review, 181 Pa.Super. 255, 124 A.2d 401 (1956); Kaylock v. Unemployment Comp. Board of Review, 165 Pa.Super. 376, 67 A.2d 801 (1949).

      . See the following unemployment compensation cases in which reductions in wages or discontinuance of bonuses was held not to afford “good cause” for employees’ voluntary termination of employment: Hessler v. American Television & Radio Co., 258 Minn. 541, 104 N.W.2d 876, 882, 883-884(6), 886-887(9, 10) (1960); Longobardi v. Unemployment Insurance Appeal Board, Del.Super., 287 A.2d 690, 692(6) (1971); Kessler v. Industrial Commission, 27 Wis.2d 398, 134 N.W.2d 412, 415(6) (1965); In re Anderson, 39 Wash.2d 356, 235 P.2d 303, 306, 309(6) (1951).

      . See Citizens Bank of Shelbyville v. Industrial Commission, supra note 4, 428 S.W.2d at 899-901, and Burroughs v. Employment Security

        Agency, 86 Idaho 412, 387 P.2d 473 (1963), each denying the claim of a female bank employee who had worked, as had instant claimants, under supervision of the cashier.

      . Claimant Barbarick’s testimony:

      “Q. Did you want to work?
      “A. Yes. I applied for work. While I have been off I have applied for work.
      “Q. And did you refuse any work?
      “A. No, sir, I have not.
      “Q. What hours do you want to work?
      “A. Eight hours a day, starting at seven or eight in the morning.
      “Q. Five days a week?
      “A. Yes, sir.
      “Q. What wage are you willing to accept?
      “A. Well, nothing lower than I was receiving.”

        Claimant Tackett’s testimony:

      “Q. Did you want to work during this period (8/26/73 to 9/22/73)?

        “A. Yes.
      “Q. Were you sick in any of these weeks?
      “A. No.
      “Q. Did you refuse any work?
      “A. No, I haven’t.
      “Q. Did you do any work during these weeks?
      “A. No.
      “Q. Did you go to employers and apply for work?
      “A. Yes, sir.”


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William FRANKLIN, Appellant.
    No. KCD 28442.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

The jury convicted defendant of stealing a motor vehicle, and based upon defendant being charged under the second offender act, the court fixed his punishment at imprisonment for five years. On this appeal, defendant assigns as error: (1) that the jury, not the judge, should have assessed punishment, because the procedure for applying the second offender act, Section 556.-280 (all statutory references being to RSMo 1969) was not followed; and (2) that the trial court failed to require the State to produce certain photographs requested by defendant under Rule 25.32.

I.

The question as to whether the trial court properly proceeded under the second offender act grows out of the following procedural background. The amended information, on which this case was tried, alleged that defendant pleaded guilty on February 23, 1972, to a charge of intent to rob with malice aforethought, and that thereafter on February 23,1972, defendant was sentenced to three years imprisonment and placed on probation for five years. State’s Exhibit 1, the record of the prior conviction, showed that the plea of guilty had been made on October 18, 1971, and that the charge to which the plea was entered was that of assault with intent to rob, without malice, and that defendant was sentenced on February 23, 1972, to three years imprisonment and a parole for five years. The defendant took the stand in his own behalf and admitted that he had previously been convicted of assault with intent to rob and that he had served time. The trial court received into evidence State’s Exhibit 1 and acted throughout the case under the second offender act, but it made no finding as to the application of that statute.

No attack respecting application of the second offender act was included in the motion for new trial, but we nevertheless consider the matter now under Rule 28.02. In this connection, defendant makes two arguments. The first of these is that the proof did not support the allegation of the amended information, but rather that the proof varied in two respects: a) as to the date upon which defendant pleaded guilty; and b) with respect to the conviction being for assault to rob without malice rather than an assault with malice.

As to the date of the plea, the error in the information concerned an unimportant detail. The question of concern is only whether the information sufficiently identified the alleged prior conviction so that defendant could prepare his defense, if any, in that respect. The important date for that purpose of identification was the date of conviction, and in this respect the allegation and the proof were in exact accord.

As to the variance between the allegation concerning assault with malice and the proof of conviction for assault without malice, this variation was also immaterial. See State v. Kirk, 510 S.W.2d 196, 201 (Mo.App.1974). Neither this variance nor that with respect to the date upon which the plea of guilty was entered could prejudice defendant unless he was misled or in some way handicapped in the preparation of his defense. No such misleading nor handicap could have been true here. This is established beyond question by the fact that defendant admitted on his own testimony that he had been convicted of assault with intent to rob and had served time with respect to that conviction. State v. Dean, 400 S.W.2d 413, 416 (Mo.1966.)

As his second reason for claiming that the procedures were not followed which are required for the application of the second offender statute, defendant argues that the trial court failed to make findings of fact as required by § 556.280(2); and he cites in support State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Tettamble, 450 S.W.2d 191 (Mo.1970), and State v. Vermillion, 446 S.W.2d 788 (Mo.1969). Not cited by defendant, but holding that failure to make findings constitutes reversible error are State v. Garrett, 416 S.W.2d 116 (Mo.1967); State v. Holmes, 434 S.W.2d 555 (Mo.1968), and State v. Dixon, 434 S.W.2d 564 (Mo.1968). Those cases, at least to the extent that they held that the second offender statute could not be applied unless the trial court made specific findings of fact as to the various constituent elements prerequisite to application, have been overruled by State v. Blackwell, 459 S.W.2d 268 (Mo.banc 1970) in which it was held that specific findings are not necessary and that it suffices if the record shows the necessary facts and the trial court makes a general finding to the effect that the statute applies. The Blackwell opinion further draws an analogy to Rule 26.01(c), thus tending to indicate that even an omitted general finding can be implied if the necessary facts have been proved.

Although the trial court in this case did not make any explicit finding, even of a general nature, in favor of the application of the statute, that could be treated as immaterial as a logical extension of Blackwell. However, even if that be an overly broad interpretation of Blackwell, still the omission of the finding here would not constitute prejudicial error under the particular facts of this case. State’s Exhibit 1 taken together with defendant’s admissions on the stand prove all of the constituent elements requisite to the application of the second offender act. The actions of the trial court, especially by refraining from instructing the jury concerning sentencing and by assessing the sentence itself, supply an unmistakable basis for implying a finding that the second offender act applies. That implication is further strengthened and made almost explicit by the court’s statement at time of allocution that defendant “was tried under the Habitual Criminal Act.” If the trial court’s oversight and failure to make a specific finding had been called to its attention in the motion for new trial, that oversight could easily and surely would have been corrected at that time— the necessary finding can be made even after rendition of the jury verdict. State v. Abernathy, 515 S.W.2d 812 (Mo.App.1974).

Under this record, there is no genuine question of fact for resolution concerning the application of the second offender act. If this case were reversed and remanded for the solitary purpose of securing an explicit finding as to the application of the act, the only result from a practical point of view would be to give defendant a one-day holiday from the penitentiary to accomplish a pure formalism. Insisting upon such meaningless ritual would serve no useful purpose. Everything considered, the missing finding must be considered a harmless omission.

II.

Defendant’s second point, having to do with nonproduction by the State of certain photographs, arises in the following factual context. Prosecution witness Burke was in the parking garage from which and at the time when the car in question was stolen, and he identified defendant as the one who was riding in the front passenger seat of the stolen automobile as it was being driven alongside of Burke toward the exit of the garage. Shortly after the date of the theft, Burke was shown a group of “mug shots,” out of which he selected a photograph of defendant as the one who was riding in the passenger seat and he also selected two others whom he stated to be somewhat similar in appearance. Two days later the police showed Burke another group of police photographs, out of which he again selected and identified the photograph of defendant.

Defendant filed a motion under Rule 25.-32 to compel production of the various photographs which had been displayed to Burke. The prosecution answered to that demand that it could not make production because the police had retained no record of the photographs which had been displayed to Burke. Notwithstanding the resulting inability of the State to make production of the photographs in question, defendant nevertheless persists in his complaint, taking the position that there was a duty upon the State to make and preserve a record of the photographs so used. He states his position in his brief as follows: “Appellant submits that this Court should not sanction a limitation imposed upon an accused’s ability to meet the State’s evidence simply because the State has lost, mislaid or failed to keep records of potentially valuable defense evidence.”

Virtually the identical argument was rejected by the Massachusetts Supreme Court in Commonwealth v. Gibson, 357 Mass. 45, 255 N.E.2d 742, 743 (1970), the court holding as follows:

“We agree with the Commonwealth that to require segregation of all photographs shown to witnesses in the investigatory stage of all crimes would be to place a heavy if not intolerable burden upon investigatory processes at a time when these processes are already overtaxed, and we are not disposed to do it. In any event, the jury had before them the complete story of the photographic identifications for such weight as they chose to give it.”

To the same effect is Commonwealth v. Meggs, 341 N.E.2d 699 (Mass.App.1976). See also State v. Solem, 220 Kan. 471, 552 P.2d 951, 956 (1976). Those rulings are persuasive. The police had no duty to preserve a record of all photographs shown to Burke, and in the absence of any way in which to identify those photographs, the State violated no duty of disclosure to defendant.

Affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Terry Lee ABBOTT, Appellant.
    No. KCD 28392.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

      Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (defendant) was convicted of Burglary Second Degree and Stealing and was sentenced by the court, under the Second Offender Act, to five (5) years on each offense, the sentences to run concurrently. He raises two points on this appeal. ■ First, that the trial court erred in failing to grant judgment of acquittal because the evidence was insufficient to sustain a conviction for Burglary and Stealing. Second, that the trial court erred in failing to give mandatory Instruction MAI-CR 1.08.

The state’s evidence of the defendant’s criminal agency in the burglary and stealing is based upon circumstantial evidence, as hereafter related. The defendant takes the position that such evidence was insufficient to support his conviction under the well recognized and unchallenged doctrine as stated in the case of State v. Sallee, 436 S.W.2d 246, 249—250[1] (Mo.1969), where the court said:

“The general guide for testing the sufficiency of circumstantial evidence is whether the facts and circumstances relied upon by the State are consistent with each other and with the hypothesis of defendant’s guilt, and are inconsistent and irreconcilable with his innocence, and point so clearly and satisfactorily to his guilt that they exclude every reasonable hypothesis of innocence. (Cases cited).”

To like effect are State v. Walker, 365 S.W.2d 597, 601[5] (Mo.1963); State v. McGlathery, 412 S.W.2d 445, 447[2] (Mo.1967); State v. Thomas, 452 S.W.2d 160, 162[1] (Mo.1970); and cases collected 9 Mo. Digest, Criminal Law <¾=> 552(3). Neither the state nor this court has any argument with the soundness of that rule, but it is also the law that any fact may be proved by circumstantial evidence, including the criminal agency of the defendant. State v. Chase, 444 S.W.2d 398, 401-402[2] (Mo. banc 1969), and cases cited therein.

A further refinement of the foregoing general rule is that where a case rests upon circumstantial evidence, the circumstances need not be absolutely conclusive of guilt and they need not demonstrate the impossibility of innocence. State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974); State v. Brunson, 516 S.W.2d 799, 803[7] (Mo.App.1974).

In testing the sufficiency of the evidence in a criminal prosecution, this court is bound to consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the state, and to reject all evidence and inferences to the contrary. State v. Watson, 350 S.W.2d 763, 766[1] (Mo.1961); State v. Boone, 490 S.W.2d 318, 320[1] (Mo.App.1973); State v. Harrison, 539 S.W.2d 119, 121[6] (Mo.App.1976). The scope of review thus delineated applies with equal vigor to direct and circumstantial proof. State v. McGlathery, 412 S.W.2d 445, 447[1] (Mo.1967).

The ultimate resolution of defendant’s first point, considering the total facts and circumstances as shown by the evidence, requires a determination, under the foregoing principles, of whether or not a reasonable and fair inference may be reached that the defendant was a participant in the crime. State v. Simmons, 494 S.W.2d 302, 304-305[3] (Mo.1973).

Eddie and Betty Smith left their home at 3512 East 58th Street Terrace in Kansas City, Missouri with their son on October 13, 1974, at about 7:00 p.m., to visit Mrs. Smith’s mother. Before leaving, Mr. Smith locked both the front and the back doors and the windows were secured. The front door, he locked from the outside, so that he could not and did not fasten the safety chain installed on the inside of the door. Upon the Smiths’ return to their home at about 9:00 p.m., he discovered that he could not open the front door because the safety chain had been fastened. He observed through a window that one of his TV sets was missing and heard noises inside the house like someone running toward the rear. Mr. Smith thereupon ran around the side of the house to the back door, which was wide open. He entered the back door into the kitchen and observed “stuff all over the floor”. He let his wife and son in the front door; told her to call the police; obtained a handgun from his kitchen, and thus armed, ran into his back yard.

There is a partial unused alley behind the Smith property and a three-foot fence and bushes along the rear of the back yard. While Smith was looking over his back yard, he heard a “mumbling” and “rustling bushes around” in the back yard and right next to the alley. Upon approaching the area of this noise, Smith discovered two Negro males, one of whom was the defendant, kneeling in the bushes. He brought these two to the front of his house where he held them until the police arrived and placed them under arrest.

Upon further search of the back yard, Smith and one of the police officers found the Smiths’ 19-inch TV set, stereo component and speaker on the ground in some bushes near where the defendant and his companion were apprehended.

The Smith home had been ransacked, including a bedroom and a dresser therein, which contained Mr. Smith’s clothing. A window in the bedroom had been opened. Mrs. Smith had laundered four pairs of her husband’s white socks that day and placed them in a drawer in his dresser, with two clean pairs already in the drawer. An “inventory” of the clothing disclosed only five pairs of these socks in the house. The missing pair was found in the back pocket of Vernon Henderson, the person found in the bushes and apprehended with the defendant. Two police officers testified that burglars often use this type of sock to conceal their fingerprints. Both Mr. Smith and his wife identified the socks as the missing pair owned by Mr. Smith.

Neither the defendant nor Vernon Henderson testified in the trial and the record does not contain any testimony as to any oral or written statement made by either of them. No explanation of their presence in the bushes in close proximity to each other and to the stolen goods was proffered.

A burglary of the Smith residence was undeniably committed. The jury could reasonably find from the evidence: That during the Smiths’ absence from their home, the burglar or burglars entered the house through a bedroom window; took a pair of Mr. Smith’s clean socks to prevent fingerprints; secured the front door with the inside lock; ransacked the house; removed the TV, stereo and speakers through the back door and placed them in the back yard for further transportation; returned to the interior for further looting; and, that while so engaged, they were surprised by the return of the Smiths and fled through the back door. Further, the jury could find that within a very short time, Mr. Smith apprehended the defendant and Henderson hiding in bushes at the back of the property within a few feet of the stolen items in the back yard, and that defendant’s companion had the stolen socks in his pocket. In the absence of evidence of any other persons or vehicles in the vicinity and any explanation of their presence in this situation, the reasonable inference could be (and was) drawn by the jury that the defendant and Henderson were the burglars.

This court cannot declare as a matter of law that this evidence was so insufficient as to require the court to enter a judgment of acquittal. Rule 26.10, Rules of Criminal Procedure; State v. Colthorp, 437 S.W.2d 75 (Mo.1969); State v. Thompkins, 515 S.W.2d 808, 812 (Mo.App.1974); State v. Mayfield, 520 S.W.2d 680, 683[2] (Mo.App.1975). Defendant’s guilt or innocence was a jury issue.

Each case of this nature must be determined in the light of its own facts under the principles hereinabove discussed. Each of the authorities cited by the defendant in support of his position has been carefully reviewed and found to be inapposite on the facts. Defendant’s first point is ruled against him.

The trial of this case commenced on Monday, September 8,1975. The first occasion, after the jury was sworn, that a recess was declared was the afternoon break of that day. At that time, the trial court admonished the jury as required at the first recess by MAI-CR 1.08(a), as follows:

“It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of the Court. Until this case is given to you to decide you must not discuss any subject connected with the trial among yourselves, or form, or express any opinion about it. And until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you, or in your hearing, or read, view, or listen to any newspaper, or television report of the trial.
The bailiff and other officers of the Court are not permitted to talk to you about any subject connected with the case, and you are not permitted to talk to them about it. * * * ” (Emphasis supplied)

At the time the jury was excused at the evening adjournment September 8, 1975, the court admonished the jury, as required at recesses or adjournments (subsequent to the first) by MAI-CR 1.08(b), as follows:

“The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves, or with others, or permit anyone to discuss it in your hearing. You are not to form or express any opinion about the case until it is finally given to you to decide." (Emphasis supplied)

The parties agree and the record discloses that MAI-CR 1.08(b) was not given before the noon recess the following day, September 9, 1975, and that omission forms the basis for defendant’s second point on this appeal. It should be noted, however, that at the adjournment the evening of September 9, the jury was again given MAI-CR 1.08(b) and the verdict was returned the following day.

It is conceded that under Rule 20.02(a), Rules of Criminal Procedure, MAI-CR 1.08 must be used. The giving of MAI-CR 1.08(b) before each recess is mandatory, and a failure to do so is error. However, Rule 20.02(e) provides:

“Violation of Rule — Effect. Giving or failing to give an instruction or verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.” (Emphasis supplied)

Rule 20.02 finds its counterpart on the civil side in Rule 70.01, Rules of Civil Procedure. Under the latter rule, courts called upon to “judicially determine” the prejudicial effect of the error arising from a failure to comply with its strict mandate have frequently held that minor violations are not to be deemed prejudicial. For example, see: State Farm Mutual Automobile Insurance Co. v. Jessee, 523 S.W.2d 832, 836[7] (Mo.App.1975), and Ernst v. Emerick, 525 S.W.2d 573, 574[1] (Mo.App.1975). Likewise, courts have judicially determined that, dependent upon the facts of each case, minor deviations or violations in criminal cases did not constitute such prejudicial error so as to require reversal. State v. Fox, 521 S.W.2d 507, 510-511[3, 4, 5] (Mo.App.1975), involving MAI-CR 7.62; State v. Billingsley, 534 S.W.2d 484, 485[3] (Mo.App.1975), involving MAI-CR 2.03 and MAI-CR 2.80; and, State v. Knox, 529 S.W.2d 455, 463[11] (Mo.App.1975), involving MAI-CR 7.62.

Prior to MAI-CR 1.08, the area of trial admonishment of juries before recess or adjournment was covered by Section 546.-230 RSMol969. Failure to comply with the strict terms of that statute has commanded the attention of the appellate courts.

In State v. Harris, 477 S.W.2d 42, 46[6] (Mo.1972), the court noted that the statute required the trial court, at each recess or adjournment, to admonish the jury

“that it is their duty not to converse among themselves, nor to suffer others to converse with them or in their hearing on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.”

In Harris, the court’s admonition consisted in telling the jury, “Don’t talk about the case, don’t hear it discussed”, which the court held constituted substantial compliance with the statute, and that “absolute and literal compliance” therewith was not required.

In State v. Brown, 502 S.W.2d 295, 299[3, 4] (Mo.1973), the trial court failed to meet the requirements of Section 546.230 by simply stating at each recess that the jury was to “keep in mind” its previous admonition. The court in Brown (following Harris) held the admonishment adequate under the statute and added, “but assuming some deficiency, the error was harmless beyond a reasonable doubt.” The court in Brown also noted:

« * * * Appellant’s counsel interposed only a general objection on the ground that the admonishment was not complete, but he did not state in what respects he considered there was a deficiency, * * Appellant makes no effort to demonstrate any improper conduct of the jury resulting from what he contends was a failure to comply with the statute. * * * ” (Emphasis supplied)

In State v. Vernor, 522 S.W.2d 312, 316-317[6] (Mo.App.1975), a case decided under Rule 1.08, the trial court failed to give a verbatim admonition to the jury at a recess as required by Rule 1.08(b) and such failure was urged as reversible error. In Vernor, the court said:

“MAI-CR No. 1.08(b) is substantially the same as the admonition required in pre-MAI days by § 546.230, RSMo 1969, V.A. M.S. * * * The requirements under MAI-CR are more stringent than under § 546.230. Absolute and literal compliance with MAI-CR is ordered and expected by the Supreme Court. Any deviation from the printed page now constitutes error, the prejudicial effect of which is to be judicially determined. Rule 20.02(e). For the same reasons excusing literal compliance with § 546.230 in State v. Brown, supra, we find the error harmless in this case.” (Emphasis supplied)

A very recent case of State v. Gaye, 532 S.W.2d 783, 792-793[6] (Mo.App.1976) involved the failure of a trial court to strictly comply with the mandate of Rule 1.08(a), wherein such failure was asserted as reversible error. The court held that the admonishment of the court adequately met the requirements of Rule 1.08(a) and, while error, was harmless “in the absence of any showing of misconduct” of the jury.

It is true that in each of these cases some admonition was given the jury, however imperfect or inadequate, and here before the noon recess on September 9, 1975, no admonition was given.

The following facts are very relevant: The jury here involved had, prior to the time of this omission, been fully admonished as required by Rule 1.08(a) and Rule 1.08(b); the jury was given instruction under Rule 1.08(b) subsequent to such omission; counsel for the defendant did not at the time (nor at any time until the motion for a new trial) object to this omission or ask that the instruction be given, or ask that the jury be polled as to its conduct during that particular recess, or ask for a mistrial; neither did he attempt to demonstrate any misconduct of the jury by reason of the omission. Further, the trial judge was in a position to “judicially determine” if this omission had any prejudicial effect upon this particular jury or affected its verdict, by reason of his observation of their conduct, his appraisal of their personalities, backgrounds and characters, and he did, in fact, make such determination by overruling the defendant’s motion for a new trial. This court finds nothing in the record of the trial, nor here, that would compel a different determination. The omission, under the particular facts of this case, while error, is held to be nonprejudicial and harmless.

This ruling is not to be considered as any attempt to soften the requirement of absolute and strict compliance by both bench and bar to the mandatory requirements of MAI-CR and the Notes on Use. Any deviation therefrom flys in the face of the decisions of the Supreme and appellate courts of this state. This ruling is confined solely to the facts before this court in this case, and merely represents an exercise of the obligation and authority reposed here by Rule 20.02(e). The defendant’s second point is ruled against him.

The judgment is affirmed.

All concur.


text:
    George BARNHILL, Appellant, v. Pauline BARNHILL, Respondent.
    No. KCD 28188.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.

      C. John Forge, Jr., Independence, for appellant.
    Monte C. Phillips, Blue Springs, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

The parties were divorced in 1968, at which time the custody of the child now in question who was then 5 years old was awarded to the mother, and the father was ordered to pay $100 per month for its support. In June, 1975, the mother moved under § 452.370 RSMo 1969 for an increase in the amount of that child support. After a hearing in July, 1975, the court granted an increase to $450 per month and allowed $600 to the mother as attorney’s fee. The father appeals, assigning as error: 1) that the court modified the decree without evidence of the father’s ability to pay; 2) that the increase in child support was an indirect method of paying maintenance to the mother; and 3) that the award of attorney’s fees was excessive.

With respect to the father’s ability to pay, the evidence shows that he is the president of two businesses, George Barn-hill Trucking Company and George Barnhill Trucking Company, Incorporated. The evidence further shows that his income from the first of those companies in 1974 was $3,222.48 per month and his income from the other company was $1,083.33 per month, making a total aggregate annual income from those sources of $51,669.72. This income figure is to be compared with that which he had at the time of the divorce in 1968, which was $20,000 per year. This evidence amply supports the trial court’s conclusion that the father is able to pay the increased child support awarded. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

With respect to the father’s second point, the pertinent evidence is as follows. The mother has a total income of $190 per month consisting of $100 child maintenance paid by the father and $90 per month received as Aid for Dependent Children. The mother has become unable to work because of cervical cancer and the treatments which she has been receiving for that condition. She gets along financially by the small monthly income mentioned together with help from friends and a married daughter and assistance by the food stamp program and a welfare department medical card.

In the course of cross-examining the mother, the father’s counsel attempted to pin her down as to the amount of money which she spent for support of the child. Counsel drew out certain monthly figures which he tabulates in his brief in this court as follows:

Clothes 50.00
Food 150.00
Rent 145.00
Entertainment 30.00
Bus 7.00
Medical 10.00
Car Expenses 5.00
School Expenses 10.00
Insurance 20.00
Total $457.00

With respect to two of these items, namely food and rent, the mother admitted that the figures given reflect in part benefit to herself as well as benefit to the child. On the basis of that concession, the father now erects his whole argument that a major part of the increased award constituted in effect an indirect or disguised belated award of alimony to the mother. The major fallacy of this argument lies in the fact that the father’s tabulation of expenses set forth above does not represent the full extent of expenses on behalf of the child which would be made were the funds available.

Thus, in addition to the items listed, the mother testified that the child at one time was receiving organ lessons at a cost of $8 per week but that these lessons had to be discontinued because of lack of money. In addition, utilities cost approximately $70 per month. Further, a desirable hospital plan would cost at least $30 per month. Still further, food for the child’s pets runs at approximately $25 per month. Still further, the automobile which is used in part to transport the child requires repair in some unspecified amount. And on top of all that, the child needs special dental work at a cost of $500 to $600. These additional items substantially offset whatever personal benefit the mother receives from the tabulated expenditures. Also to be noted is that many of the figures listed in the above tabulation are merely estimates largely suggested for each category by the father’s attorney as part of his cross-examination, and those figures are lower in some instances than somewhat higher estimates given by the mother in her direct testimony.

Moreover, some of the items of expense claimed, principally that for rent, can be considered overly modest, arising from the all too apparent fact that this mother and daughter have been suffering in the recent past from severe financial stringency. Many budget items such as rent and food are flexible, depending in amount on how much money is available. This child’s standard of living, particularly in view of the father’s substantial income, should not be held to a minimum, bare subsistence level. Wonneman v. Wonneman, 305 S.W.2d 71, 79 (Mo.App.1957); Montgomery v. Montgomery, 257 S.W.2d 189, 197—98 (Mo.App.1953); Houston v. Snyder, 440 S.W.2d 156, 159 (Mo.App.1969). The amount of additional support from the father necessary to accomplish an appropriate improvement should not be withheld merely because that may unavoidably result in some incidental personal benefit to the custodian mother.

Appraising the whole record, the trial court concluded that the care and support of the child alone, apart from any consideration of maintenance to the mother warranted the increased figure of $450. The finding of the trial court in this respect was: “I find that as custodial parent the expenses in maintaining a home for the child, providing food, clothing and shelter to be something in the neighborhood from $400.00 to $500.00 per month on a reasonable basis; and that those items include the necessary dental care, reasonable food, reasonable clothing, reasonable transportation as needed for the child.” The amount to be awarded as child support is a matter resting in the sound discretion of the trial court. Fugate v. Fugate, 510 S.W.2d 705, 706-07 (Mo.App.1974); Rodgers v. Rodgers, 505 S.W.2d 138, 144 (M6.App.1974); Houston v. Snyder, supra at 159; Murray v. Murray, 538 S.W.2d 587, 588 (Mo.App.1976). The finding of the trial court cannot be said to be contrary to the weight of the evidence and therefore must be affirmed. Murphy v. Carron, supra.

Coming now to the father’s third point respecting the amount of attorney’s fees, the mother’s attorney testified that he had devoted 25.4 hours to this matter and requested payment at $40 an hour, which would have resulted in an award of $1,016. The trial court awarded a lesser sum, namely $600. The trial judge is himself an expert on the matter of attorney’s fees. Cascio v. Cascio, 485 S.W.2d 857 (Mo.App.1972); Gross v. Gross, 319 S.W.2d 880 (Mo.App.1959); Housing Authority v. Baumann, 512 S.W.2d 436 (Mo.App.1974). The award of fees rests peculiarly within his discretion and will not be interfered with absent a manifest absence of discretion. Keefe v. Keefe, 435 S.W.2d 313 (Mo.1968); Johnson v. Johnson, 481 S.W.2d 543 (Mo.App.1972); L_ J_ S_ v. V_ H_ S_, 514 S.W.2d 1 (Mo.App.1974). There was no abuse of discretion here.

The disposition of this case by affirmance renders it unnecessary to pass upon the mother’s motion to dismiss the appeal.

Affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Adrian B. GIBSON, Appellant.
    No. KCD 28057.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 28, 1977.
    Robert D. Kingsland, Asst. Public Defender, Jefferson City, for appellant.

      John C. Danforth, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Adrian Gibson appeals his jury conviction of robbery in the first degree by means of a dangerous and deadly weapon, Section 560.-120; assault with intent to kill with malice, Section 559.180; and kidnapping, Section 559.240, RSMo 1969. He was sentenced to a term of 75 years on the robbery count, life imprisonment on the assault with intent to kill count, and 10 years on the kidnapping count, such sentences to run consecutively.

On this appeal Gibson raises the single point that the court erred in failing to sustain Gibson’s motion to suppress his oral statements when the evidence showed such statements were made while he was in fear of his life. Affirmed.

Gibson does not question the sufficiency of the evidence to support his multiple convictions. For that reason, a brief statement of the facts will suffice.

In April, 1974, at least two men committed an armed robbery of The First Bank of Commerce West in Columbia. During the course of the robbery, an alarm was activated. As the police responded to the alarm, the robbers ran out of the Bank, jumped into a car, and an extended chase, both by automobile and on foot, ensued. The result of this chase was the arrest of Gibson in the basement of a home while he was standing with his arm around the neck of the lady of the house. When the police confronted him, the lady stated Gibson had a knife and an officer thereupon rushed Gibson and placed a gun at his head and forced him to surrender. Gibson was led from the house while the officer still had his gun drawn. Gibson was placed in the front seat of a police vehicle and Detective Vemer entered the vehicle at the driver’s side and two other police officers sat in the back seat. Following this, the statements in question were made.

The court held a hearing outside the presence and hearing of the jury on Gibson’s motion to suppress his statements made in the automobile immediately after his arrest, and in the police station as soon as he arrived there. The only evidence presented in this hearing was the testimony of Detective Vemer and Officer Duncan.

Detective Vemer testified after Gibson and the officers were all in the vehicle, he orally informed Gibson of his “Miranda” rights. Vemer stated he then asked Gibson if he understood his rights, and Gibson stated he did. Vemer asked Gibson how many of them were in the Bank and Gibson replied there were two. Vemer then informed Gibson the Bank employees had stated there were three, and Gibson stated they were wrong because he, Gibson, had stayed outside in the car.

Officer Duncan was in the rear seat and overheard the conversation between Vemer and Gibson and corroborated Vemer’s testimony. When the officers arrived at the station, Gibson was given a paper with the Miranda warning printed thereon and he signed the waiver acknowledging he understood his rights and- waived the right to remain silent. Thereafter Vemer asked the same question about the number of robbers in the Bank and Gibson gave the same reply he had given in the car.

At the request of Gibson, the venue on this case was changed from Boone County to Cole County. At the conclusion of the hearing on the motion to suppress, the court found the statements made by Gibson were willing and voluntary and that the matter of the voluntariness, willingness, weight and value attached to the statements were issues of fact for the jury to determine.

When Detective Vemer and Officer Duncan testified before the jury concerning the arrest of Gibson and the statements he made in the car and at the police station, Gibson’s counsel made no objection. Counsel cross examined both officers fully about the statements and the circumstances surrounding the making of each.

On this appeal Gibson complains only that the court erred in failing to sustain his motion to suppress the oral statements because the evidence clearly showed the totality of the circumstances in which the statements were made depicted Gibson as being in fear of his life. By failing to object when evidence of the making of such statements was presented, and further by cross examining the officers, concerning the circumstances of the making of both statements, Gibson has not preserved this issue for appellate review. State v. Hampton, 509 S.W.2d 139, 142[6] (Mo.App.1974); State v. Stevens, 467 S.W.2d 10, 19[7], 50 A.L.R.3d 96 (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546. The only review which may be made is to determine if there has been any plain error under Rule 27.20(c).

Since Gibson was in custody when the statements were made, the burden of proving such statements were given voluntarily is upon the State, but such burden may be met by the presentation of a prima facie showing of voluntariness. State v. Thomas, 522 S.W.2d 74 (Mo.App.1975).

A prima facie case of voluntariness is made when there is a showing that at all stages of the interrogation the person questioned was informed of his constitutional rights, that he understood his rights, and that no physical force or coercion, promises, threats, or other unlawful means of inducement were employed. State v. Hunter, 456 S.W.2d 314 (Mo.1970).

In this case the State met its burden through the testimony of the officers to make a prima facie showing of voluntariness. In that circumstance, there cannot be any plain error in overruling the motion to suppress such statements.

The evidence relied upon by Gibson to show he was in fear of his life when he made the statements was contained in Gibson’s own testimony before the jury. This was after the hearing on the motion to suppress and the court’s ruling thereon. This evidence was, therefore, not presented to the court prior to the ruling of which Gibson now complains. The court overruled the motion based upon the testimony of Detective Vemer and Officer Duncan. As demonstrated above, such evidence provided an ample basis to justify the court in overruling the motion. In this circumstance the court was correct in overruling the motion to suppress.

Of course, Gibson’s testimony was heard by the jury and his version of the events surrounding the making of the statements was fully considered by the jury when it passed on the voluntary nature of the statements under the proper instruction.

The judgment is affirmed.

All concur.