author: WINTERSHEIMER, Judge.

text:
    M. C. MILLER, Ron Coy and Don Hudson, Individually and as Representatives of a Class Consisting of Members of the Fire Department of Lexington-Fayette Urban County Government, Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, H. Foster Pettit, Mayor, Councilmen William Hoskins, William Ward, Joe Jasper, Pam Miller, Cecil Frost, Bill Carey, Bart Peak, Scotty Baesler, Bob Finn, O. M. Travis, Don Blevins, Jack Hall, Tony Curtsinger, Paul Rose and J. Fara Vanmeter, Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.

      John Frith Stewart, Kenneth L. Sales, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    Richard V. Murphy, James T. Hodge, Charles D. Weaver, Jr., Dept, of Law, Lexington, for appellees.
    Before PARK, WHITE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This is a class action instituted by the appellants, who are firefighters employed by' the Lexington-Fayette Urban County Government, on June 20, 1974, petitioning the trial court to restrain and enjoin the Urban County Government, the appellees, from enacting and enforcing Ordinance 110-74 on the grounds that it conflicted with KRS 337.285, otherwise known as House Bill 477. The request for a temporary injunction was denied. The ordinance in question was introduced, read publicly on June 19, 1974, and approved on June 20, 1974, but was not published until June 26, 1974. The trial court overruled the appellants’ motion for summary judgment and entered a summary judgment for the appel-lees. This appeal followed.

The Supreme Court of Kentucky, in the cases of Snyder, et al v. City of Owensboro, et a I, Ky., 555 S.W.2d 246, and Walker, et a I v. City of Paducah, et a1 and George R. Wagoner, etc. v. City of Paducah, et al, Ky., 552 S.W.2d 660, opinions rendered June 10, 1977, found that similar ordinances which were properly adopted prior to the effective date of House Bill 477, KRS 337.285, which was June 21,1974, were not in conflict with the statute. The Supreme Court held that there could be no retroactive application of the statutes so as to void ordinances adopted prior to the effective date of the statute. This Court finds that the appellants’ arguments here are not persuasive in challenging the decisions referred to above. Therefore, the crucial question to be decided in this case is whether the ordinance complained of was in fact properly passed prior to the effective date of the statute.

The specific issue is whether the trial court erred in granting a summary judgment.

The judgment of the trial court is affirmed. There is no genuine issue as to any material fact and the appellees are entitled to a judgment as a matter of law. CR 56.03.

The principal question properly before this Court is the timing of the publication of the ordinance in question.

The record indicates that the City of Lexington had been operating as a second class city with the city manager form of government pursuant to KRS 89.-390. The Urban County Government was permitted to exercise all powers and privileges possessed by that specific form of government. K.R.S. 67A.040. KRS 89.545 governs the publication of ordinances and provides, in part, that within ten days after the adoption of an ordinance it shall be published. The appellants argue that KRS 84.100(6) requires that no ordinance shall be effective until it is published. However, KRS 89.400 provides that upon the adoption of the city manager form of government in cities of the second class all laws that are applicable shall continue to apply, except where there are inconsistent provisions. Clearly, KRS 89.545 is inconsistent with and nullifies the effect of KRS 84.100(6). In this specific instance the ordinance provides that it is to become effective immediately upon its passage on June 20, 1974. Such a provision is entirely within the purview of the legislative branch of government.

It is well settled that publication is necessary before an ordinance can become effective only when the statute expressly requires such publication. The opposite result has been reached where the statute does not so provide. City of Newport v. Newport National Bank, 148 Ky. 213, 146 S.W. 377 (1912). In that case the court said that provisions with reference to publication of ordinances can be merely directory where publication is not made a prerequisite to the taking effect of the ordinance. This is not the type of ordinance which requires legal notice to the public. Since KRS 89.545 says that the ordinance shall be published within ten days after its adoption, it is clear that the ordinance became effective June 20,1974, the date of its passage.

The ordinance is not in conflict with KRS 337.285 because it became law prior to the effective date of the statute. The state law requires the appellee to pay a minimum hourly wage rate and to pay time and one-half for hours worked in excess of forty each week. The ordinance accomplished that purpose. It did not decrease the income of the firefighters. Its only effect was to change from a monthly salary to an hourly rate. KRS 337.285 cannot be given retroactive effect so as to invalidate an ordinance that is otherwise properly enacted prior to the effective date of the statute.

Under Section 9.04 of the Urban Government Charter, the appellees had sufficient authority to enact the ordinance. It appears that the wage rates authorized by the ordinance exceed the minimum requirements of the statute and comply with the overtime requirements. The ordinance was enacted prior to the effective date of the statute and prior to the promulgation of regulations by the Department of Labor.

The appellants’ arguments relative to the computer printout are not persuasive since it is a well settled rule that any unit of government speaks only through its official documents. In this instance, the appellees only official document is the ordinance which establishes salaries. Prior to the adoption of the subject ordinance, appellants were not paid on an hourly basis and therefore no hourly rate had been established. The contention that the hourly rate of pay was reduced is without merit.

The action of the appellee does not violate KRS 95.450. The record clearly indicates that the appellees’ action was not disciplinary in nature and in fact was not a reduction as contemplated by the disciplinary statute.

In this instance the record indicates that the ordinance was properly adopted pursuant to applicable Kentucky law. The local government has authority to fix hourly rates of pay for firefighters. The ordinance in question did not decrease the income of the appellants and its only effect was to change such income from a monthly salary to an hourly rate. The rates involved exceed the minimum requirements of the statute and otherwise comply with it.

Therefore, the trial court was correct in granting summary judgment for the appel-lees.

All concur.


source: Caselaw Access Project

author: MARTIN, Chief Judge.

license: Public Domain

text:
    William A. BELL and Phyllis Brooks Gilliam, Appellants, v. BOARD OF EDUCATION OF HARLAN, Kentucky, INDEPENDENT SCHOOL DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.

      Arthur L. Brooks, Brooks & Sullivan, Lexington, and John J. Slattery, Jr., Louisville, for appellants.
    F. C. Bryan, Mount Sterling, for appellee.
    Before MARTIN, C. J., and VANCE and WHITE, JJ.
   MARTIN, Chief Judge.

This is an appeal from a circuit court judgment upholding the dismissal of the Harlan Elementary School Principal and one of its teachers.

The appellants argue the circuit court did not review their dismissal as required by Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967), and KRS 161.790. They contend the case was treated as an administrative review rather than a new proceeding as these authorities direct. They also allege that while the Superintendent recommended the dismissal of both appellants as required by statute, KRS 161.-790(3), he withdrew this recommendation at the conclusion of the hearing before the Harlan County Board of Education. Appellants also argue that the decision to dismiss should have taken place at an open public meeting.

During the school year 1975-1976, the appellant William A. Bell was the Principal of Harlan Elementary School and the appellant Phyllis Brooks Gilliam was a classroom teacher of mathematics and science in that school. Both had taught in the Harlan school system for a sufficient period of time to have become tenured teachers. They . had worked during this school year with continuing service contracts from the School Board. In May of 1976 both appellants were served with written charges seeking to terminate their tenured positions. These charges, made pursuant to KRS 161.790, detailed a long list of alleged misconduct and inefficiency on the part of both appellants. A hearing on these charges before the Harlan County Board of Education began on June 17, 1976 and produced some six hundred pages of testimony before ending on June 24. On June 29, the Board notified both appellants of their dismissal. An appeal to the Harlan Circuit Court followed. After the transcript of the School Board hearing was filed with the circuit court, an order directing both sides to submit briefs was entered. On December 17, detailed Findings of Fact and Conclusions of Law were filed by the circuit court. This appeal followed. We affirm.

At oral argument, counsel for appellants strenuously pursued the issue of the school superintendent’s withdrawal of his recommendation that appellants be dismissed from their positions. Appellants contend that if the superintendent at any time withdraws his recommendation of dismissal, then the Board is without a necessary prerequisite under KRS 161.790(3) to effect a tenured teacher’s removal. A reading of the testimony of the superintendent makes it clear he was not making an unequivocal withdrawal of his recommendation, but that he was merely confused after having been present at the entire hearing. We are of the opinion that it was the intention of the legislature in enacting KRS 161.-790 to allow the local board of education to make the final determination of dismissal. Thus, once the board’s hearing was commenced, the superintendent may not attempt to terminate the proceedings by withdrawing his recommendation.

Another ground for reversal advanced by appellants is the School Board’s failure to make any written findings at the conclusion of the hearing. The Board did not specify which charge or charges it found to be grounds for terminating either appellant. While it is helpful, such findings are not required by KRS 161.790. The circuit court must, when a review of a school board decision is sought, begin with the charges and insure first that there was adequate notice of them to the teacher. He may, but is not required to, conduct a further hearing. Having been satisfied with the adequacy of the notice, he must then determine if there is substantial evidence to support the conclusion reached by the Board. See Hoskins v. Keen, Ky., 350 S.W.2d 467, 469 (1961). In the present case we agree with the circuit judge that the conclusion of the Harlan County Board of Education is supported by substantial evidence. The appellants received adequate notice and the record is replete with evidence unrefuted by appellants. They testified on their own behalf and were represented by counsel at the hearing. After reading the complete transcript of the hearing before the school board, there can be only one conclusion. The charges were proven and the dismissal of the appellants from the status of tenured teachers was proper.

Appellants’ concluding argument is that the action of dismissal was void because it was taken during a closed session of the Board. Appellants in response to the charges of the Board asked for and received a public hearing. KRS 161.790. They now argue KRS 61.805 and 61.810 require the Board’s dismissal discussion be held in public. In attempting to harmonize the appropriate sections of KRS 161.790 and KRS 61.810, we can not reach such a conclusion. KRS 161.790(4) provides that the hearing in a teacher dismissal case may be a public hearing at the teacher’s option. However, there is no requirement that the Board’s deliberation and decisions must be held at a public meeting. Indeed, KRS 61.810(6) exempts such deliberations because of their confidential nature. Thus, the hearing and the Board’s decision based on the evidence at the hearing are two separate phases of the termination proceeding. The Board’s power to reach a decision on the evidence in closed session is preserved by KRS 61.-810(6).

The judgment of the circuit court is affirmed.

All concur.


author: GANT, Judge.

text:
    Wayne STEWART, Appellant, v. KENTUCKY PAVING COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.

      Raymond L. Suell, Preston L. Terry, III, Louisville, for appellant.
    Eugene H. Alvey, Louisville, for appellee.
    Before GANT, VANCE and WILHOIT, JJ.
   GANT, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court holding the appellant, Wayne Stewart, and James E. Keene jointly and severally liable to the appellee for the sum of $5,847.00.

The appellee, Kentucky Paving Company, Inc., and a subsidiary company known as the Kentucky Garage Builders are operated out of the same offices and both are solely owned by John C. Chandler. Kentucky Paving’s business consists of obtaining contracts for paving jobs, subcontracting for the furnishing of labor and materials, collecting for the job on completion and paying the subcontractor. Kentucky Garage Builders does nearly one million dollars worth of business annually and Kentucky Paving does perhaps one-tenth of that business.

James E. Keene was hired in March of 1971 by Chandler to run, manage and operate Kentucky Paving. The appellant, who is the son-in-law of Keene, was employed on a salary and commission basis as a salesman by Kentucky Garage Builders on February 7,1972. In May of 1972, he was transferred to Kentucky Paving as a salesman where he remained for approximately one month when he was transferred back to Kentucky Garage Builders.

In the latter part of April, 1972, Stewart opened a checking account in the name of Custom Paving and in July, 1972, filed the necessary papers to do business as a proprietorship under the same name. This fact was never made known to Chandler. During the spring of 1972 the business of Kentucky Paving was not operating at its usual level of activity. Chandler had a conference with Stewart and Keene at which they stated that they were considering going into business in the paving field but that they were going to continue as employees of Chandler’s companies and that they were not going to go into any other business. Some one week later Chandler and Keene entered into a “supplemental agreement” to his employment contract which prohibited him from competing with Kentucky Paving or Kentucky Garage Builders after termination of his employment.

In late June or early July Chandler discovered that the records of Kentucky Paving, such as leads, contracts and contract proposals, were missing and learned that they were being kept at Keene’s apartment. Subsequently, on July 11, 1972, Chandler dismissed Keene from his employment and obtained the records, leads and contracts of Kentucky Paving which were then at Keene’s apartment. Chandler testified that many leads were missing and that he obtained only eight of 22 that were logged in the books of the company on the dates of July 10 and July 11,1972. Prior to going to Keene’s apartment, Chandler went by Stewart’s residence, dismissed him from his employment and obtained what materials and records Stewart had in his possession.

The lower court in its opinion, findings of fact and conclusions of law found that the appellant had a working relationship with the appellee, which relationship required a high degree of fidelity to the employer; that Keene and Stewart had performed several jobs totalling $14,618.00 which were not done for Kentucky Paving; that Kentucky Paving Company made a gross profit of 40% on its contracts; and that Kentucky Paving had been damaged in the amount of $5,847.00. The lower court opinion mentioned eight jobs which were done by Keene and Stewart individually while under the employment of Kentucky Paving Company. The jobs and the evidence concerning them are as follows:

Wash-O-Rama — Contracted for November, 1971, completed the same month, paid for on December 22 by check made payable to J. E. Keene.

Hopewell Baptist Church — Contract between S. C. Watkins (subcontractor) and Hopewell Baptist Church dated November 9, 1971, work completed about April, 1972.

Deluxe Marine Sales —Contracted on May 26, 1972, over signature of Keene on behalf of Custom Paving.

Mr. Transmission —Contracted on May 26, 1972, over signature of Keene on behalf of Custom Paving.

Zimlich ■ — Contracted on June 1, 1972, over signature of Keene on behalf of Custom Paving.

Fugate — Contracted on June 10, 1972, over signature of Keene for Custom Paving.

Koster-Swope — Contracted on July 7, 1972, over signature of Keene for Custom Paving.

Valley Community Church —Contract proposal signed by Keene for Kentucky Paving on June 23, 1972, but proposal was never accepted. Keene testified that after he left Kentucky Paving he was contacted by the church and Custom Paving did the job in the fall of 1972.

This Court has long held that an agency is a contract either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, by which the other assumes to do the business, and to render an account of it. The agent is a substitute or representative of his principal and derives his authority from him. City of Covington v. Reynolds, 240 Ky. 86,41 S.W.2d 664 (1931). The appellant during his employment with either Kentucky Garage Builders or Kentucky Paving Company had the authority to solicit paving contracts for his employer. In fact, Stewart received a commission for paving jobs contracted between the time of his initial employment and his transfer to Kentucky Paving as a salesman in addition to his regular salary and he testified that “. . . most generally I probably would have gotten it every week.” Thus it cannot be denied that the appellant was an agent of Kentucky Paving Company from the date of his employment until his dismissal.

The cases of Byer v. International Paper Co., 314 F.2d 831 (1963) and Conklin v. Joseph C. Hofgesang Sand Co., Inc., 407 F.Supp. 1090 (W.D.Ky.1975) properly summarize the relation of principal and agent in situations similar to the case at bar. Therein the court stated:

One who acts as agent for another is not permitted to deal in the subject matter of the agency for his own benefit without the consent of the principal. (Citing cases). Profits realized by an agent in the execution of his agency belong to the principal in the absence of an agreement to the contrary. The agent is bound to a high degree of good faith toward his employer, and is not entitled to avail himself of any advantage that his position may give him to profit at the employer’s expense beyond the terms of the employment agreement. (Citing cases).

The highest court of this Commonwealth has had several opportunities to comment on the fiducial relationship between principal and agent. See McAlister v. Whitford, Ky., 365 S.W.2d 317 (1962); Urban J. Alexander Co. v. Trinkle, 311 Ky. 635, 224 S.W.2d 923 (1949); Maxwell v. Bates, 239 Ky. 600, 40 S.W.2d 304 (1931); Hoge v. Kentucky River Coal Corporation, 216 Ky. 51, 287 S.W. 226 (1926).

The case of Hoge v. Kentucky River Coal Corporation, supra, aptly summarizes the degree of loyalty required by one presently employed in a fiduciary capacity as follows:

Everyone — whether designated agent, trustee, servant or what not — who is under contract or other legal obligation to represent or act for another in any particular business or for any valuable purpose must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is rule of common sense and honesty as well as of law. The agent is not entitled to avail himself of any advantage that his position may give him to profit beyond the agreed compensation for his services. He may not speculate for his gain in the subject matter of the employment. He may not use any information that he may have acquired by reason of his employment either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest. He will be required to account to his employer or principal for any gift, gratuity or benefit received by him in violation of his duty, or any interest acquired adverse to his principal without a full disclosure, though it does not appear that the principal has suffered any actual loss by fraud or otherwise.

Neither Stewart nor Keene disclosed the appellant’s ownership of Custom Paving or Keene’s active solicitation for the company. Without such disclosure, the appellant clearly violated his duty of loyalty to his employer with regard to the jobs from which he profited. The judgment of the lower court attributes eight jobs to Keene and Stewart whereby they profited individually while they were in the employment of Kentucky Paving Company and Kentucky Garage Builders. However, a review of the record by this Court reveals that only seven of the eight jobs were either contracted or performed during the appellant’s period of employment. The Wash-O-Rama job was contracted, completed and paid for by Keene alone prior to the appellant’s initial employment with either of the companies owned by Mr. Chandler. Therefore the appellant cannot be held responsible for the profits gained from this

job. The fact that the appellant may have received the other seven leads from his father-in-law and that he had contracted the jobs for Custom Paving does not affect appellant’s duty to disclose his adverse interest in Custom Paving since his company acted upon the leads and profited from them during a period when he owed a duty of loyalty to his employer, John Chandler.

Appellant relies heavily on the case of Aero Drapery of Kentucky, Inc. v. Engdahl, Ky., 507 S.W.2d 166 (1974) for the proposition that a salesman does not stand in a fiducial relation to a corporation. In commenting upon the relationship between a co-defendant who was an officer and the corporation, the court stated that “The duties and liabilities of any agent to his principal are parallel to the nature of the particular office which the agent agrees to perform” and that there existed a fiducial relationship even without the statutorily imposed fiducial duty since he had a “ . . . position of trust, the freedom of decision and access to confidential corporate information.” The opinion did not reveal the duties and the nature of a salesman within the corporate structure of Aero Drapery but merely concluded without setting forth the reasons that there was no fiducial duty between this particular salesman and the corporation. Upon a review of the record in the present case, this Court is convinced that the ties Stewart had to the management of Kentucky Paving Company placed him in a position of trust and permitted him access to confidential corporate information. It is also worthy of note that the salesman in Aero Drapery was involved only in the organization of a competing business whereas Stewart organized and actively solicited contracts through his father-in-law, James Keene.

Appellant cites Progress Laundry Company v. Hamilton, 208 Ky. 348, 270 S.W. 834 (1925) and Birn v. Runion, 310 Ky. 805, 222 S.W.2d 657 (1949) for the contention that Stewart did not breach any obligation to Kentucky Paving Company by utilizing the leads to promote his own business. Both cases are distinguishable in that the employee had resigned prior to the solicitation of clients for a competing business. With regard to this distinction, the court in Aero Drapery, supra, stated:

After the termination of his fiduciary relationship he is allowed the freedom to compete, and he may carry with him his personal experience, enterprise, and knowledge, but he may not use prior fi-ducial confidences to profit at the expense of his former employer.

For the above stated reasons, the judgment of the lower court is affirmed in part and reversed in part with directions to modify the judgment in accordance with this opinion.

All concur.


author: WHITE, Judge.

text:
    Terry GREGORY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    Jack Emory Farley, Public Defender, Margaret Marie Allison, Asst. Public Defender, Com. of Ky., Frankfort, for appellant.

      Robert P. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
    Before WHITE, PARK and WINTER-SHEIMER, JJ.
   WHITE, Judge.

This appeal comes from a conviction of criminal possession of a forged instrument in the second degree (KRS 516.060). The appellant was sentenced to one year’s confinement on the charge.

The evidence introduced at trial showed that Mrs. Sara P. Alexander of Nashville, Tennessee, owned certain apartments located in Franklin, Kentucky. The manager of those apartments, Mrs. Eddie Bunch, hired Jessie Law to trim trees on the property for $400. In response to Mrs. Bunch’s letter of March 1, 1976, informing her of this fact, Mrs. Alexander mailed to Mrs. Bunch her check # 3425 dated March 3,1976, for $400 made payable to Jessie Law. This check was drawn on the Simpson County Bank. It was never received by Mrs. Bunch nor Jessie Law.

On March 6, 1976, the appellant, along with a lady friend, went to Sullivan’s Department Store in Franklin, Kentucky. The manager of the store, Larry Dixon, testified that appellant selected several items of men’s wear. The cheek in question was tendered to Chip Phillips, the clerk who waited on them. As was store policy, Phillips brought the check to Dixon for approval. Dixon testified that he examined the check and immediately noticed that there had been an erasure on the payee line. Dixon testified that the appellant had followed the clerk to the manager’s office and was very nervously awaiting the fate of the check. When Dixon went out to tell appellant he could not accept the check, the appellant and his companion left without the check. The incident at Sullivan’s Department Store took place within a matter of a few minutes.

An inspection of the check reveals that there is a noticeable erasure on the payee line. The check is filled out in black ink except that the name “Terry Gregory” has been written in blue ink over the erasure as being the payee.

On the basis of this circumstantial evidence, the appellant now contends that he was éntitled to a directed verdict. His contention is based on the failure of the commonwealth to prove by direct evidence that the alteration of the check was unauthorized and that appellant, rather than his companion, was the person uttering or possessing the check.

A review of the evidence persuades us that the jury could reasonably draw the inferences it did from the evidence presented. Mrs. Alexander had drawn the check payable to Jessie Law, not to Terry Gregory. No one entitled to receive or handle the cheek did so before Gregory and his companion attempted to cash it. When they attempted to cash it they appeared very nervous and jumpy. The check had a noticeable erasure and the appellant’s name had been written over it in a very obvious and amateurish fashion. The check was tendered as payment on men’s clothing. The appellant and his companion left without the check when it became obvious that it would not be cashed without inquiry. All the reasonable inferences point to appellant’s guilt, not his innocence. On the basis of this evidence the jury could reasonably believe that Gregory forged the check, or knew it was forged, and possessed or uttered it as the chief beneficiary of the act.

When the evidence shows that the name attached to the instrument had been forged, the inference arises that the person who uttered it as genuine either forged the instrument or knew it was forged, and unless the uttering or forgery was explained satisfactorily the presumption becomes conclusive. Smith v. Commonwealth, Ky., 307 S.W.2d 201 (1957). Here the appellant presented no evidence, so the presumption becomes conclusive. Though the evidence was not as strong as it could have been, we find no error in the failure of the trial court to direct a verdict for appellant.

Appellant’s second point on appeal is that certain of the prosecuting attorney’s closing remarks were prejudicial. During closing argument the prosecuting attorney stated:

Ladies and Gentlemen the law in cases such as this is that you can convict on circumstantial evidence. Had it not been so the Court would never have let you consider this case. The Court would have said, Mr. Steers [the prosecuting attorney], you have not presented sufficient evidence to enable to [sic] jury to find this Defendant guilty.

Gregory’s trial counsel objected to these remarks. The trial judge overruled the objection, stating “Overrule your objection, go ahead.”

In Martin v. Commonwealth, 255 Ky. 529, 75 S.W.2d 13 (1934), this state’s highest court condemned a similar argument. In that case, the prosecuting attorney stated in closing argument:

If there had been no evidence against him, or not sufficient evidence against him to convict him, then the court after hearing the evidence, his Honor on the Bench, would have taken the case from the jury and the jury would not have been called upon to consider it and write a verdict.

The defendant’s trial counsel objected to this argument. The trial court failed to sustain the objection. In reversing the judgment of conviction because of this and other remarks made during closing argument, the Court of Appeals stated:

It was manifestly unfair to lead the jury to believe that the judge believed the defendant to be guilty and that he was collaborating in the prosecution. We are not unaware of the weight which a jury attaches to the views of the trial judge. It was the duty of the court to sustain the objections to the argument and to admonish the jury clearly and emphatically that it was improper instead of telling the jury that they should be the judge of its propriety.

75 S.W.2d at 14. See also United States v. Gambert, 410 F.2d 383 (4th Cir. 1969).

The commonwealth relies upon a decision in Rupard v. Commonwealth, Ky., 475 S.W.2d 473 (1972). In that case a similar remark was made in the prosecuting attorney’s closing argument. The court found that the remark did not constitute prejudicial error. However, no objection was made to the closing argument. The trial court in the Rupard case never had an opportunity to correct the error created by the prosecuting attorney’s remark. In the present case, there was an objection which was overruled. The action of the trial judge, who overruled the objection and told the prosecuting attorney to “go ahead,” necessarily reinforced the jury’s impression that the court believed the evidence in the case was sufficient to convict.

In overruling the motion of Gregory’s trial counsel to direct a verdict for the defendant, the trial judge commented in chambers that there was “just barely” enough proof to take the commonwealth’s case to the jury. Because of the quality of the proof in this case, the prosecuting attorney’s remarks during closing argument were not only improper but were prejudicial.

Appellant’s final contention is that the final judgment of the trial court did not clearly disclose that there had been compliance with the mandatory provisions of KRS 532.050 and KRS 532.010. We agree. However, the error is moot in light of our reversal on the prosecutor’s arguments.

The judgment is reversed with directions to grant appellant a new trial.

All concur.


author: COOPER, Judge.

text:
    Edith G. GEORGI, Appellant, v. FIRST NATIONAL BANK OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1977.
    Robert J. Jones, Jones & Celebrezze, Louisville, for appellant.
    Elmer E. Morgan, Morgan & Pottinger, Louisville, for appellee.
    Before MARTIN, C. J., and COOPER and HOWARD, JJ.
   COOPER, Judge.

This is an appeal from a Summary Judgment dismissing the complaint of the appellant and granting the appellee the right to sell certain collateral in its possession as security for a debt.

On or about May 24, 1971, the appellant, Edith G. Georgi, and Robert T. Georgi, now deceased, executed a ninety (90) day note to the appellee, First National Bank of Louisville, in the amount of $7,000. They pledged as collateral for said loan sixty (60) shares of Xerox stock in the individual name of Edith G. Georgi, and eighty (80) shares of International Telephone and Telegraph stock registered in their joint names.

In August of 1971, $1,500 was paid and a renewal note in the amount of $5,500 was executed by Robert T. Georgi, individually. The facts are not clear as to why appellant was not made a party to the renewal note, or whether she signed any renewal notes.

On July 9, 1973, Robert T. Georgi passed away. The appellant, Edith G. Georgi, filed suit for the return of her stock, and that she be discharged from further liability on any indebtedness. The trial court held that the stock secured the debt and dismissed the complaint.

The only appealable issue to be considered by this Court is:

WHETHER THE EXECUTION OF A RENEWAL OR SUBSEQUENT NOTE BY ONE OF THE ORIGINAL OBLI-GORS FOR SAME DEBT RELEASES THE COLLATERAL WHICH IS PLEDGED FOR THE DEBT.

Kentucky adheres to the general rule as outlined in 11 Am.Jur.2d Bills and Notes, Section 307, page 333, which states in part:

. Where a note is given merely in renewal for another note and not in payment, the renewal does not extinguish the original debt or in any way change the debt except for postponing the time of payment, even though the first note was surrendered.

A very similar case to the one at bar is that of Amlung v. First National Lincoln Bank of Louisville, Ky., 411 S.W.2d 465 (1967). There, a husband and wife signed a note and pledged her individual property. Later, additional amounts were loaned to the husband for which he signed notes without her signature. Renewals were made to the husband who forged his wife’s name on the notes and on a new hypothecation agreement. The original hypothecation agreement authorizes the lending of additional amounts to the husband. The wife sued to recover the collateral. The court held that the bank was entitled to hold the collateral and sell it in satisfaction of the debt which was in existence and for which the wife had pledged her stock. In the instant case, the appellant signed each certificate of stock and delivered them to the bank for the sole purpose of securing the debt as long as it existed.

We have examined the record in this case, and have determined that the trial court was correct in granting a Summary Judgment to the appellee in this matter.

The judgment is affirmed.

All concur.


author: HOGGE, Judge.

text:
    C. Lester PAUL, Appellant, v. Stanley BUTLER and wife, Maxine Butler, Appellees.
    Court of Appeals of Kentucky.
    Oct. 28, 1977.
    David R. Choate, Hicks & Choate, Albany, for appellant.
    Thomas E. Carroll, Lovelace & Carroll, Albany, for appellees.
    Before HOGGE, HAYES and LESTER, JJ.
   HOGGE, Judge.

This case is an appeal from a Default Judgment entered in favor of the appellees, plaintiffs below.

The determinative issue in this case involves a question of a civil rule construction. Does CR 4.10 require that a motion for an extension of time be filed with the court before the court will permit a party to defend under the provisions of that rule?

On January 6, 1975, appellees filed suit against the appellant. Constructive service of process was achieved upon the appellant by warning order attorney. It is not clear why constructive service was the proper means of achieving jurisdiction, since the appellant was a resident of Taylor County, Kentucky. Due to problems in determining the appellant’s actual address, he did not receive actual notice of the suit against him for several months after the filing of same.

On March 7, 1975, the trial court granted to the appellees a Default Judgment. That judgment was not, however, entered in the docket book until April 5, 1975. Also on April 5, 1975, but earlier in the day, the appellant filed an answer with the court. The judgment, even though signed, was not effective until it was entered into the docket book on April 5th. CR 79.01 and CR 58. On May 7, 1975, the trial court entered an order overruling the appellant’s motion to file an answer and to set aside judgment.

In that order, the court stated that “the answer of the Defendants was not properly before the Court at the time the judgment was entered by the Clerk because of failure to obtain permission to file it.” The appellant contends that CR 4.10 does not require that one defending under the provisions thereof make application to the court before he may appear and defend the action.

Prior to its amendment in 1960, CR 4.10 stated in part: “If service is constructive the defendant shall be permitted to defend before judgment upon application to the court . . . ” [Emphasis ours.] In an appeal arising under the pre-1960 rules, where the defendant submitted his answer after the expiration of the period in which he was allowed to file his answer and he thereafter made a motion to extend the time for filing his answer, the court stated:

It is difficult to misconstrue the language or purpose of CR 4.10. Because constructive service procedure does not insure that the defendant will receive timely actual notice of a proceeding against him, he is allowed additional protection in the form of an absolute right to appear and defend the action at any time before judgment.

Sache v. Beams, Ky., 337 S.W.2d 678, 679 (1960).

As amended, CR 4.10 now reads in part: “A party before the court by constructive service . . ., shall be permitted to defend at any time before judgment . . ”

Thus, the basic effect of the' amendment was to eliminate the requirement that the party seeking to defend the action make “application to the court.”

Furthermore, the words, “shall be permitted” are mandatory and leave the court no discretion in whether or not the defendant shall be allowed to appear and defend the action. Thus, it would be meaningless to require that the defendant apply to the court for permission to appear and defend, when CR 4.10 clearly grants him an absolute right to do so. Accordingly, granting of the Default Judgment was error, and this action is remanded for proceedings consistent with this opinion.

Judgment reversed.

All concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Steven MORRISON, Appellant.
    No. 59992.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.
    J. Martin Kerr, Independence, for appellant.
    Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

This appeal is from a conviction for a sale of 1000 amphetamine pills. A jury found the defendant guilty but was unable to agree on punishment. The trial court sentenced defendant to thirty years imprisonment.

The court of appeals, Kansas City district, affirmed the conviction, ruling, among other points, that defendant was not in position to challenge the alleged error of the trial court in failing to sustain his challenge for cause of a venireman. The court of appeals ruled that defendant must either have used one of his peremptory challenges to remove the juror or else have exhausted them elsewhere, before he could complain on appeal. The cause was ordered transferred here on the application of defendant, largely because of the above ruling on the juror question. We reach the same result as the court of appeals, but reject the view as to what defendant must do to be in position to raise the juror matter on appeal.

This appeal involves the second of the two offenses described in State v. Morrison, 545 S.W.2d 376 (Mo.App.1976). It was tried in the same county approximately one month after State v. Morrison, supra, was tried.

The evidence in the present case is similar to the evidence in the first case. The same highway patrolman testified to a sale of 1000 tablets, identified the defendant, described his appearance at the time of the sale and identified a picture taken June 2, 1974, thirty days after the alleged sale as being a picture of the defendant. The state was careful in the second trial not to have the trooper testify any way as to the sale of the 100 tablets which constituted the basis for the first charge. The trooper testified as to May 1 activity only that he had made an arrangement for the sale on May 2 which constituted the basis of the charge in the present case.

Defendant asserts the trial court erred in failing to strike venireman Sharon Pierson for cause, she having, in response to a question asking if any of the panel had read or learned about the case in the radio, newspapers or otherwise, answered, “I read about it, the previous trial”, apparently referring to defendant’s trial a month earlier on a similar charge, but that she had formed no opinion as to guilt or innocence. The court of appeals overruled the claim of error on the part of the trial court in overruling the challenge for cause, but, as said, did so on the ground that defendant was not in a position to raise the point because he failed to show that she served either because defendant’s peremptory challenges were exhausted or else that she was removed by his exercising one of his peremptory challenges, citing State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 504 (1939) and State v. Simpson, 529 S.W.2d 19, 21 (Mo. App.1975). This holding is not correct. Under the law defendant is entitled both to a qualified panel and the statutory number of peremptory challenges. He need not sacrifice one to the other. The law was well stated by Somerville, J., in State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976) as follows:

This state has steadfastly hewed to the proposition that an accused in a criminal case must be afforded a full panel of qualified jurors before he is required to expend his peremptory challenges, and denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes reversible error. State v. DeClue, 400 S.W.2d 50 (Mo.1966); State v. Land, 478 S.W.2d 290 (Mo.1972); State v. Lo-vell, 506 S.W.2d 441 (Mo.banc 1974). This proposition is rooted in the constitutionally guaranteed right of every accused to a “public trial by an impartial jury”, Mo. Const. Art. 1, Sec. 18(a), and personifies a dedicated judicial effort to preserve inviolate this constitutionally guaranteed right in the broadest sense. Experience has taught that it is not always possible to objectively demonstrate juror partiality. Not infrequently, juror partiality is subtle, elusive, and highly subjective. When juror partiality is capable of being objectively demonstrated, challenges for cause have been devised as a means for achieving impartial jury. When juror partiality is sensed, but incapable of being objectively demonstrated, peremptory challenges have been devised as a means for achieving an impartial jury. Together, they serve the ultimate goal of obtaining a jury free from the taint of both objectively demonstrated and subjectively sensed partiality. Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and “spend” them as he alone sees fit. Therefore, if an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to “spend” them as he alone sees fit is accordingly impinged. The strength and integrity of trial by jury in a criminal case lies in the composite impartiality of the jury finally selected to try a particular case, and both are eroded to an unknown extent when even a single or isolated instance of partiality creeps in, whether objectively demonstrated or subjectively sensed.

In one of the cases in point cited in the above quotation, State v. DeClue, 400 S.W.2d 50, 57 (Mo.1966), we said:

If such a juror [referring to one who should not be permitted to remain on the panel] serves in the trial of a criminal case, the defendant thereby takes on a burden which he is not supposed to have. If such prospective juror does not serve only because he is removed on the basis of the exercise of one of defendant’s peremptory challenges, the defendant thereby has fewer than the number of true peremptory challenges to which he is entitled.

In State v. Land, 478 S.W.2d 290, 292 (Mo.1972), we reiterated that it is the “settled law” of this state “that the defendant in a criminal case is entitled to a full panel of qualified jurors before he is required to make his peremptory challenges.” The court there held the trial court should have sustained defendant’s challenge for cause “and not have preempted one of the peremptory challenges accorded appellant by the laws of this state.” Id.

In State v. Hirsack, 465 S.W.2d 543, 545 (Mo.1971), we said: “There is no doubt or question as to the rule upon which appellant relies, aside from the statutory grounds of challenges for cause he is entitled to a qualified panel, and, as in this case, may not be compelled to exercise peremptory challenges to rid the panel of disqualified jurors

In Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 361 (1905), a civil suit for damages, the court said:

Under our statute each party is absolutely entitled to three peremptory challenges. The statute also gives parties litigant the right to challenge a juror for cause. If error appears in the ruling of the court on a challenge for cause, that question should be decided wholly independent of any consideration of whether the party litigant had or had not exhausted his peremptory challenges. In other words, the statute provides for two classes of challenges, one for cause and the other peremptorily without assigning any cause. And in the determination of the question of the propriety of the ruling upon a challenge for cause, it is improper to mix with it a consideration of the question as to whether or not the complaining party had exhausted his peremptory challenges.

This sound reasoning applies equally to a criminal case.

To the same effect is Golden v. Chipman, 536 S.W.2d 761, 762-63, (Mo.App.1976), where the court said:

We note parenthetically that plaintiffs did not pursue their unsuccessful challenge to venireman Duffy by peremptorily challenging him. Plaintiffs contend, and defendant does not deny, that plaintiffs did not thereby waive their challenge for cause. We agree, since a litigant is entitled to a full panel of qualified jurors before making peremptory challenges.

We therefore conclude and rule that the defendant in the present case did not waive his right to challenge on appeal the action of the trial court in overruling his challenge to the prospective juror for cause regardless of whether his peremptory challenges were already exhausted or, if not, whether he used a peremptory challenge to dispose of the juror. Cases to the contrary are overruled.

However, while defendant is in a position to raise the point on appeal, his claim fails because what the juror said, as set forth above, is not sufficient, by itself, to convict the trial court of error in overruling the challenge and defendant did nothing further by way of interrogation of the juror to show what her views were beyond the foregoing. It does not follow from what she said that she necessarily was not impartial. On the scanty record before us, defendant has failed to show that the trial court was in error in overruling the challenge.

Defendant contends his sentence of 30 years constitutes cruel and inhuman punishment in violation of his constitutional rights, state and federal. The sentence of 30 years is severe. The sentence is by far the longest in our jurisdiction for the offense of selling amphetamines, at least among those convictions which were the subject of appeals. The trial judge, as soon as he excused the jury following trial, announced his intention of fixing punishment at 30 years. He unquestionably was influenced, and so indicated, by the evidence introduced at trial without objection that defendant was prepared to provide many times the 1000 pills, the sale of which resulted in his conviction. The trial judge was also personally aware, having presided at the first trial, of the conviction which was the subject of State v. Morrison, supra, where a jury gave this defendant five years for selling 100 amphetamines, an offense which occurred the day before he sold the 1000 which are involved in the present case. Under the circumstances we do not believe the punishment assessed in the present case is violative of the constitutional provisions invoked.

Defendant has other points which we have considered and overruled but we do not, however, lengthen this opinion by setting them forth. One of them — unconstitutionality of the Missouri provisions requiring the court to excuse women from jury service on request — has been ruled to the contrary in State v. Duren, 556 S.W.2d 11, decided by this court on September 27, 1977 and, further, this claim in not supported by any evidence that the panel was not representative. The others do not involve novel questions or matters with respect to which an opinion would be of precedential value.

Judgment affirmed.

MORGAN, C. J., and BARDGETT, FINCH and RENDLEN, JJ., concur.

HENLEY and DONNELLY, JJ., concur in result.

      . By stipulation filed in this court, the parties agree that defendant did, in fact, use one of his peremptory challenges to strike the venireman in question.

      . The present is not a case where it cannot be determined from the record whether the venireman may actually have been stricken peremptorily by the state. We express no opinion as to whether the failure of the trial court to sustain defendant’s challenge for cause can, in a case where the state makes such strike or where the record on appeal does not disclose whether the venireman may have been stricken by the state, be error as to the defendant.


author: WASSERSTROM, Judge.

text:
    Marian Ellen GROSS, Appellant, v. Isadore H. GROSS, Respondent.
    Nos. KCD 28585, KCD 28639.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 31, 1977.

      Richard L. Colbert, Kansas City, for appellant.
    David Waldman, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

The question for determination here is the manner in which an order for division of marital property entered in a dissolution proceeding can be enforced. Under the terms of the decree entered on May 12, 1975, dissolving the marriage between Marian Gross and Isadore Gross, the family home went to Marian and she was ordered to make monthly payments due with respect to carpeting in the amount of $127.06 per month to Commerce Bank and payments on the air conditioning in the amount of $103.12 per month to Columbia Union National Bank. Among other provisions, the decree granted her maintenance of $200 per month and child support of $500 per month.

The current problem commenced when Marian refused to pay the monthly installments due to the two banks. Isadore had signed the notes to the banks, and they therefore made demand for payment upon him. He began making those payments, but understandably he desired some relief in that respect against Marian.

Accordingly, on July 31, 1975, he filed application for modification of the maintenance award to authorize him to make payments direct to the banks and deduct those payments from the sums due Marian for maintenance and support. Marian filed cross-motions “to set aside for fraud or for error coram nobis and to complete division of marital property.” The basis for the latter motions were allegations by Marian that Isadore had falsely stated that the indebtednesses to the two banks existed by reason of purchase price of the household carpeting and air conditioning, whereas there were in fact no outstanding debts at either bank for carpeting and air conditioning. A hearing was held upon those motions and on August 5, 1975, Judge Murphy overruled all motions.

Following the ruling by Judge Murphy, Marian continued in her non-payment of the two bank indebtednesses. On October 28, 1975, Isadore filed a new application, this time a petition for Marian to show cause why she should not be punished for contempt of court. In response to that petition, Marian filed a cross-motion to modify the decree by increasing the amount of maintenance and child support, and she asked that she be awarded suit money and attorney’s fees.

A hearing on the petition and motions was held before Judge Randall on November 18, 1975. Evidence was taken again with respect to the legitimacy of the indebt-ednesses being asserted by the two banks. At the close of the hearing, Judge Randall found Marian guilty of contempt of court, suspended imposition of sentence and placed her on probation for one year on condition that she pay the sum of $1,400 (the amount of the bank indebtednesses). Isadore was authorized to withhold maintenance payments for the period of seven months, at the end of which time Isadore’s obligation to pay maintenance for the seven months would be satisfied and Marian’s obligation to pay the bank indebtednesses would also be satisfied. An order to that effect was entered on November 18, 1975, from which Marian duly appealed. Thereafter, on March 4, 1976, Judge Randall denied Marian’s application for attorney’s fees from which she filed a second appeal dated March 4, 1976.

On these consolidated appeals, Marian assigns the following as error: 1) that Judge Randall erroneously treated Judge Murphy’s order dated August 5, 1975, as res judicata of her contentions made in the contempt proceeding that the bank indebt-ednesses were fraudulent and nonexistent; 2) that Judge Randall failed to give res judicata effect to Judge Murphy’s denial to Isadore of the right to offset the maintenance payments against payments being made by him to the two banks; 3) that Judge Murphy lacked jurisdiction in making the original decree of May 12, 1975, ordering Marian to make installment payments to the two banks; 4) that the finding of contempt against Marian violated the imprisonment for debt restrictions of Article I, Sec. 2 of the Missouri Constitution, the due process clause of the Missouri Constitution, Article I, Sec. 10, and the due process clause of the 14th Amendment of the United States Constitution; 5) that Marian was not guilty of contemptuous conduct, and 6) that Judge Randall erred in denying the allowance to her of attorney’s fees. Each of those points will be taken up in the order stated, except that the subject matter of point No. 2 will be considered in connection with and as part of point No. 4.

I.

Marian argues that Judge Murphy’s order on her motion to set aside for fraud or for writ of error coram nobis can be res judicata only in a subsequent action, and that the contempt proceedings cannot be considered a “subsequent action” because a proceeding for contempt is merely a continuation of the original action. That argument lacks reality. At the hearing held before Judge Murphy in August of 1975, the subject as to the legitimacy of the bank debts was fully litigated and resolved against Marian. The order entered by Judge Murphy on August 5,1975, overruled Marian’s motions constituting a final ap-pealable order under Sec. 512.020 , but no appeal was taken. She should not be permitted to relitigate the same issue yet again before Judge Randall, and Judge Randall’s . statements to that effect during the course of the hearing were completely justified.

Nevertheless, the fact is that Judge Randall did permit full evidence to be introduced on the issue of the validity and honesty of the bank indebtednesses and did specifically determine that “the evidence in this case affirmed that there was such an obligation. The petitioner’s own evidence showed that there was a refinancing of a note, which original note had been paid for this specific purpose of buying the air conditioner, so the Court, at the time of the divorce decree, ordered the petitioner to pay that indebtedness incurred to buy an air conditioner and to buy carpeting.” Thus, Marian was in fact given the opportunity to relitigate the issue even though she had no right to so insist. She has no room for complaint with respect to not having had full opportunity to challenge the legitimacy of the bank debts in question.

II.

Marian concedes, as she must under the authority of Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975), that a court in dissolution of a marriage may order that one spouse receiving property not divisible in kind to pay an equalizing sum of money to the other spouse. However, she attempts to distinguish that situation from the present one by saying that the court has no authority to order one of the spouses to make payments to a stranger who is not a party to the dissolution proceedings. She cites no authority for that purported distinction, and on principle the attempted distinction has no appeal. The only reason given by Marian for not allowing such an order is that it would give rights of enforcement to a stranger; but even if this were so, no basis for a valid objection can be perceived.

In truth, however, the third parties (the banks) will have no right to enforce the court order. The judgment of May 12, 1975, contains nothing expressly or by implication showing any intention to give rights thereunder to either of the banks. The only right of enforcement rests with Isadore. 50 C.J.S. Judgments § 857, p. 431; 46 Am.Jur.2d Judgments Sec. 903, p. 1035. See also Nola v. Merollis Chevrolet Kansas City, Inc., 537 S.W.2d 627, 1. c. 633 (Mo.App. 1976).

III.

Although in her Point Relied Upon Marian cites the constitutional due process clauses as well as the constitutional prohibition against imprisonment for debt, her argument limits itself solely to the latter provision. In that respect, she relies almost entirely upon the decision in Ex parte Fowler, 310 Mo. 339, 275 S.W. 529 (banc 1925). That opinion contains language to the effect that a probate court order upon an executor to pay money to an administrator pendente lite cannot be enforced by contempt. Fowler has subsequently been explained on the basis that the order there sought to be enforced was void for failure of the probate court to comply with constitutionally required procedures. Fuller v. Smedley, 48 S.W.2d 131 (Mo.App.1932).

In any event, all prior law in Missouri (at least as respects enforcement of matrimonial decrees) has been preempted by the recent decisions of the Missouri Supreme Court En Banc in State ex rel. Stan-hope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), Teafey v. Teafey, 533 S.W.2d 563 (Mo. banc 1976) and State ex rel. McCurley v. Hanna, 535 S.W.2d 107 (Mo. banc 1976). Stanhope expressly overruled a long line of previous rulings headed by Coughlin v. Ehlert, 39 Mo. 285 (1866), which had held alimony to be “simply an order for the payment of money” and therefore within the scope of Article I, Sec. 11 of the Missouri Constitution. Stanhope and its companion cases make clear that Missouri has joined the unanimous authority elsewhere in holding that alimony and child support judgments have a special status and may be enforced by contempt proceedings despite constitutional prohibition against imprisonment for debt.

The recent decisions of the Missouri Supreme Court do not, however, reach the question as to whether orders for payment of money as part of property settlement between the spouses are also enforceable by contempt proceedings. On this subject there is a sharp division of opinion among the courts of this country. 24 Am.Jur.2d Divorce and Separation Sec. 944, p. 1078; 27B C.J.S. Divorce § 300(3), p. 380; Fowler and Krauskopf, “Property Provisions,” 29 Journal of Missouri Bar 508,1. c. 515 (1973); Clark, “Law of Domestic Relations,” p. 467; Dobbs, “Contempt of Court: A Survey,” 56 Cornell Law Rev. 183 (1971); 41 Texas Law.Rev. 141 (1962).

Under the facts of this case, it is unnecessary to voice any opinion on that question. Likewise, it is inappropriate in this case to express any opinion on the view held by the trial court that the prohibition against imprisonment for debt would not be violated inasmuch as he announced that any punishment which he might ultimately impose would be limited to that of a fine. The reason why those issues can be passed in this case is that the order of the trial court now in question was premised upon the placing of Marian upon probation. Because probation is not permissible in this proceeding, the whole solution devised by the trial court is improper and cannot stand.

The contempt order issued here viewed as a whole was clearly intended to be remedial and coercive in nature. Therefore, under Teefey v. Teefey, supra, the proceeding is one of civil contempt rather than for criminal contempt. Probation cannot be used in cases of civil contempt, inasmuch as “[probation and civil contempt are conceptually incompatible.” In re Marriage of Vanet, 544 S.W.2d 236, 1. c. 247 (Mo.App. 1976). The theory of the trial court for permitting Isadore to withhold the maintenance payments for seven months was that this was a condition to the probation granted Marian. Because the placing of Marian on probation was itself improper, the peg disappears upon which the trial court attempted to hang the permission for the withholding of the seven maintenance installments.

Nevertheless, the circumstances of this case cry loudly for relief to Isadore and for vindication of the court’s authority. These objectives can be served through the agency of Sec. 452.365 which provides:

“If a party fails to comply with a provision of, a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended, but he may move the court to grant an appropriate order.”

The purpose of this new section is explained in the commentary in the Commissioners’ Note to Sec. 315 of the Uniform Marriage and Divorce Act, 9 Uniform Laws Annotated, p. 500, wherein it is stated: “This section is intended to abolish self-help remedies, now all too common in family litigation, whereby one party withholds support or maintenance payments to force the other party to comply with visitation orders and vice-versa. Disputes of this kind should be settled by the court * * * .” The present situation demonstrates the reason for the new rule. When Marian refused to pay the bank installments, Isadore was first tempted and indeed succumbed to the temptation of resorting to self-help by withholding maintenance payments. That resort to self-help by him was unwarranted and soon was remedied by Marian’s use of garnishment process. Still, Isadore was entitled to some relief, and that was available to him under Sec. 452.365.

Although his proceeding in October, 1975, was denominated as one in contempt, full evidence was heard bearing on the whole situation just as if Isadore had moved for “an appropriate order” specifically designating Sec. 452.365. Judge Randall did hear evidence on the then current situation of the parties, he was satisfied by the evidence that Marian was in fact failing to comply with the order of May 12, 1975, that she had no just excuse for that failure, and that she had the means with which to comply. An order that Isadore be permitted to withhold maintenance payments was therefore fully justified. The order actually entered, although unduly complicated by attempting to use contempt concepts, was in effect a proper order under Sec. 452.365. The judgment of the trial court which reaches a correct result, even though for an incorrect reason, should be affirmed. Advance Concrete and Asphalt Co. and Turnpaco, Inc. v. Ingels et al, 556 S.W.2d 955 (Mo.App.1977). See also Rule 84.14.

Taylor v. Taylor, 548 S.W.2d 866 (Mo. App.1977) tends to support (or at the very least does not oppose) the use of Sec. 452.-365 in the present situation. That case involved a child custody order which provided that the mother should pay transportation costs for visitation trips and that if she failed to make such payments in advance then the father might deduct such costs from the support payments. The court on appeal disapproved that provision, saying that under Sec. 452.365 the party seeking relief should file a motion for an appropriate order “such as” an order to show cause why the offender should not be held in contempt.

Taylor should be read as meaning only that a provision for deduction should not be made in advance of any default. If and when a default occurs, the party seeking relief can then file a motion and give the court an opportunity to review the entire situation at that time. That is exactly what has been done in this case, thereby complying with the intention expressed by the Taylor opinion.

Furthermore, the same result can be reached on grounds independent of Sec. 452.365. Marian’s obstinate disobedience of the court’s order constituted a change of conditions which under conventional principles warranted a modification of the maintenance provision. R.L.S. v. J.E.S., 522 S.W.2d 5 (Mo.App.1975).

Marian argues that if relief cannot be given by way of contempt, then no relief can be afforded on any other theory, for the reason that Isadore has chosen and has pursued the particular contempt procedure. That result does not follow. Regardless of the form in which the proceeding was originally cast, the hearing before Judge Randall was far ranging and encompassed all the problems and circumstances in which these two former spouses found themselves. Both parties have treated this proceeding as a vehicle to obtain a determination of their respective rights, and no good reason exists why that determination should be further delayed. See Davis v. Broughton, 382 S.W.2d 219 (Mo.App.1964).

Marian also argues that no relief can be granted by way of permitting Isa-dore to withhold maintenance payments because Judge Murphy refused such permission on August 5, 1975, and his ruling is now res judicata. Judge Murphy’s ruling does have res judicata effect, but only as to the facts then existing. 24 Am.Jur.2d Divorce and Separation Sec. 676, p. 795; Ward v. Ward, 534 S.W.2d 593 (Mo.App.1976). At the time of Judge Murphy’s ruling on August 5, 1975, it appeared that Marian had been refusing to pay the banks because of a good faith belief on her part that the indebtedness due those banks did not truly relate to the carpeting and air conditioning: When Judge Murphy determined that issue against her, he could very well have believed that she would then submit and commence obedience to the order of the court without further coercion. As Judge Randall aptly stated at the hearing in November, 1975: “It’s very possible that at that time Judge Murphy assumed your client was going to follow his orders. When we had the hearing, it was proved that she refused to follow them, so that makes a lot of difference.” By November, 1975, the situation before Judge Randall was substantially different than it had been before Judge Murphy the preceding August. It was obvious that Marian would not comply with the order of May 12, 1975, in the absence of some further action by the court. Her recalcitrant disobedience was a sufficient change of circumstance to prevent the previous order of August 5 from being res judicata. R.L.S. v. J.E.S., supra.

IV.

Marian contends that the evidence established . that her conduct was not willful, contemptuous or contumacious. In light of the conclusion under Section III of this opinion that the order of the trial court will not be enforced as one of contempt, it becomes unnecessary to review the evidence and findings in the light of requirements which apply in contempt proceedings.

Of course, even under procedure appropriate to Sec. 452.365, the court should consider the ability of Marian to pay the bank indebtedness and the family circumstances which will result from her compliance with the order that she do so. Here there was a full exploration of all the pertinent facts and circumstances. In May, 1975, when Judge Murphy originally ordered Marian to pay the bank installments, she was earning $50 to $55 a week in addition to the $500 monthly child support and $200 monthly maintenance which was ordered in her behalf. The order of May 12, 1975, reflects Judge Murphy’s determination that those sums provided sufficient income to permit payment by Marian of the bank installments. By November (the date of the hearing before Judge Randall), Marian’s earnings had increased to approximately $80 per week. If her financial situation in May was adequate to justify requiring her to meet the bank installments, there is no reason to say that her ability was less so in November.

The trial court found that Marian “having the ability to do so” willfully refused to comply with the order of May 12, 1975. That finding must be affirmed. Murphy v. Garron, 536 S.W.2d 30 (Mo. banc 1976).

V.

For her final point, Marian argues that she is financially unable to bear the expenses of this litigation and that she should have been allowed those expenses including an attorney’s fee to be paid by Isadore. The evidence shows that Marian has income of over $1,000 a month and that has not been made to appear clearly inadequate for her to bear her own costs in this litigation.

In any event, her financial ability is only one factor to be considered. In re Marriage of Vanet, supra. Section 452.355 provides that the court may order payment by one party of the litigation expenses of the other “after considering all relevant factors.” One very relevant factor here is the obstinate refusal of Marian to obey the court order of May 12, 1975, and her insistence upon relitigating the legitimacy of the bank debts even after the determination of that question by Judge Murphy on August 5, 1975. Marian certainly should not be rewarded for that defiant conduct. To the contrary, her conduct fully justifies the denial of any allowance of litigation costs. 27A C.J.S. Divorce § 222g., p. 976; Reibstein v. Reibstein, 220 Ark. 783, 249 S.W.2d 847 (1952); Kirkwood v. Kirkwood, 83 Idaho 444, 363 P.2d 1016,1019 (1961). In the case last cited, the court pertinently held:

“In denying the motion the court correctly found that plaintiff had persistently evaded and obstructed the court’s order with reference to visitation. Her continued willful disobedience of the decree occasioned the repeated applications by defendant for the help of the court in securing his right of visitation. Under such circumstances she was not entitled to an order having the effect of requiring the defendant to finance her defense in litigation resulting solely from her contemptuous conduct.”

Those portions of the order of November 18,1975, finding Marian guilty of contempt, suspending imposition of sentence and placing her on probation are set aside. As so modified, the judgments of the court below are affirmed.

All concur.

      . All statutory references are to RSMo 1969, except the references under Chapter 452, which are to RSMo Supp. 1973.


text:
    Sophie HARPER, Trustee for Norman Harper, and L. M. Shapiro, M.D., Respondents, v. Alexander J. BARKET, Appellant.
    No. KCD 29174.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 31, 1977.

      Michael B. Shteamer, Kansas City, for appellant.
    Leonard B. Rose, David R. Frensley, William J. Shapiro, Kansas City, for respondents.
    Before TURNAGE, P. J., and WASSERSTROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

This suit is to recover on two notes executed by the defendant. The trial court took the case from the jury and entered judgment for plaintiffs at the close of all the evidence. Defendant appeals.

The parties were the owners of stock in Staff Investment Company which owned two doctor buildings in the 700 block on East 63rd Street, Kansas City, Missouri. In 1972, defendant purchased the shares of all four of the other stockholders, making part payment by certain notes. Those notes to plaintiffs were later superseded by the promissory notes now in suit, which came due May 31, 1974.

Defendant admits execution of the notes, non-payment at the due date, due demand by plaintiffs, and failure by him to pay. He nevertheless attempts to defend on the basis of alleged fraud on the part of the sellers. At the trial, he offered to testify that the buildings at the time of sale had been mismanaged and poorly maintained; that a large new medical building nearby was being proposed at the time of the stock purchase; that a number of important tenants in the Staff Investment Company building had given letters of intent to take leases in the proposed new medical building; that many of the leases in the Staff Investment Company building had expired; that plaintiffs knew of the foregoing facts but that defendant was not active in the management of Staff Investment Company and was unaware of those facts; that the sellers of the stock had displayed to him rent rolls of tenants in the building which were misleading; that the Staff Investment Company building by reason of the facts mentioned was of much less value than defendant believed at the time of his purchase; and that he would not have made said purchase had he been aware of the true facts.

Plaintiffs objected to that offer of proof on the grounds that: (1) fraud was not adequately pleaded under Rule 55.15; and (2) defendant had neither tendered back the stock purchase consideration nor counterclaimed for damages and therefore had not properly invoked either of the two alternative remedies available in a case of fraud. Defendant contends that the sustaining of that objection by the trial court was improper, that the jury should have been permitted to hear the evidence, and that the issue of fraud should have been submitted to the jury.

With respect to the first ground of objection, Rule 55.15 provides: “In all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Defendant’s answer as it relates to fraud states only: “As an affirmative defense, the defendant states that material misrepresentations were made to him by the plaintiffs which induced said defendant to execute the promissory notes.” That allegation is far from the pleading with particularity enjoined by Rule 55.15. Detailed consideration of this matter is unnecessary, however, because the defense of fraud so clearly fails under plaintiffs’ second objection.

When a purchase has been induced by fraud, the buyer has two alternative remedies: (1) he can rescind the purchase and recover the purchase price, or (2) he can affirm the purchase and seek damages for the tort. Both parties agree that the following quotation from Auffenberg v. Hafley, 457 S.W.2d 929,1. c. 935 (Mo.App.1970), correctly states the controlling principle:

“Where a seller has been guilty of fraud, the purchaser, upon discovery of the fraud has an election of two remedies. Under one he may make a timely rescission of the sale and recover whatever of value he has parted with. Under the other, he may keep the property and recover, by suit or counterclaim, the damages occasioned him by the fraud. The victim of a fraud may elect to pursue one of the remedies, but once having elected, he may not pursue or attempt to intermingle the remedies, for they are wholly inconsistent, the first being a disaffir-mance of the contract and the last being an affirmance. An offer to rescind is a repudiation of all right and title to the property and the basis of the right to rescind is a tender of the property back to the seller with reasonable promptness after discovery of the fraud.”

Here, by his own admission, defendant did not tender back to the sellers the stock which he had purchased. Neither did he file any counterclaim. Not having properly followed either course open to him to raise the issue of fraud, there was nothing for submission to the jury.

Affirmed.

All concur.