text:
    Sudie ENGLEMAN, Plaintiff-Appellant, v. CITY OF DEARBORN, Missouri, et al., Defendants-Respondents. Sudie ENGLEMAN, Plaintiff-Appellant, v. PLATTE COUNTY, Missouri, et al., Defendants-Respondents.
    Nos. KCD 27681, KCD 27682.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      James W. Farley, Farley, for plain tiff-appellant.
    Aaron A. Wilson, City Atty., John E. Ingraham, Robert D. Munro, Asst. City At-tys., Kansas City, for respondent Kansas City.
    Deaey & Deacy, Kansas City, for defendants-respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Plaintiff is the administratrix of the Estate of Robert E. Engleman who was the collector of Platte County, Missouri between the years of 1963 and 1971. Plaintiff brought suits against various political subdivisions to recover excess commissions which plaintiff’s decedent failed to retain and to which plaintiff claims he was entitled under Section 52.260(15) RSMo 1969. The appeals have been consolidated here.

Specifically, the petitions alleged that Robert E. Engleman was the collector of Platte County for a term beginning in March of 1963 and ending in March of 1967, during which he was entitled to retain a commission pursuant to Section 52.260(14) RSMo 1959, as amended (Section 52.260(14) RSMo 1969); that Platte County came under Subsection 15 of Section 52.260 in 1968; and that Robert E. Engleman was re-elected county collector in 1967 for a term ending in March of 1971. The petitions further alleged that settlements filed with defendants during Robert E. Engleman’s second term were erroneously filed under Subsection 14 of Section 52.260 for the years 1968, 1969 and 1970, resulting in the overpay-ments by plaintiff’s decedent to various subdivisions of government.

Judgment was entered for plaintiff against the cities of Dearborn and Weather-by Lake pursuant to offers of judgment. The remaining defendants moved for a dismissal of plaintiff’s petitions alleging only a failure to state a cause of action. These motions were summarily sustained by the trial court. Plaintiff’s motion to set aside the trial court’s order sustaining defendants’ motions to dismiss and for a rehearing were overruled. Plaintiff appeals from the evident determination of the trial court that plaintiff was not entitled to recover as a matter of law.

The scope of review which is incumbent upon this court in an appeal of this nature is well settled. “In determining if a petition states a claim upon which relief may be granted, the averments of the petition are to be given a liberal construction, and they should be accorded their reasonable and fair intendment ... So considered, a petition should be held sufficient if its factual averments invoke substantive principles of law which entitle the plaintiff to relief.” Dallas v. City of St. Louis, 338 S.W.2d 39, 41 (Mo.1960). “Under modern pleading principles, a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle it to relief.” Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630 (Mo.App.1975). If a petition states a cause of action upon any theory, it will withstand a motion to dismiss.

The record does not reveal the ground for the trial court’s order of dismissal. The parties have briefed and argued the case centering on the issues of whether the petitions plead a mistake of law or fact and the liability under either theory.

Defendants insist that under either a mistake of law or of fact the plaintiff’s petitions do not state a cause of action. As noted, if a recovery can be had upon either theory, the petitions should not have been dismissed. The issue of the evidence admissible under these pleadings is not reached or decided. The allegation of the petitions that “said settlements were filed in said bracket 14 erroneously for the years 1968, 1969 and 1970 . . can be reasonably construed as alleging a mistake of law inducing such action. If plaintiff could maintain an action for a mistake of law, the motion should not have been sustained.

Defendants argue the general rule that a party may not recover when payment has been made under a mistake of law, while plaintiff claims the general rule does not apply to payments made between public officials.

Defendants rely principally upon the case of Hethcock v. Crawford County, 200 Mo. 170, 98 S.W. 582 (1906) in which the collector of Crawford County failed to retain a 5% commission in his settlements with the county. The court held that the mistake was one of law which precluded recovery, “[T]he mistake is not of fact, but of law, and . . money so paid voluntarily cannot be recovered back.” l.c. 584. While this decision has never been expressly overruled, its continued vitality is in doubt in view of subsequent determinations by Missouri courts.

In Lamar Township v. City of Lamar, 261 Mo. 171, 169 S.W. 12 (1914), the Supreme Court adopted the exception which plaintiff relies upon. In that case, the Township of Lamar sought to recover road and bridge funds paid to the City of Lamar under a mistake of law. The court, after discussing the various rationales for the rule that equity will not relieve a mistake of law, determined that the rule has no logical application in the case of dealings between public officers dealing with the public’s money. See also State ex rel. Barker v. Scott, 270 Mo. 146, 192 S.W. 90 (1917); Consolidated School District No. 2 of Pike County v. Cooper, 28 S.W.2d 384 (Mo.App.1930), cer-tiorari quashed State ex rel. Consolidated School Dist. No. 2 of Pike County v. Haid, 328 Mo. 739, 41 S.W.2d 806 (1931); Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857 (1939).

The holding in Lamar was recently reaffirmed in State v. Ludwig, 322 S.W.2d 841 (Mo.banc 1959), in a reverse factual setting from the instant case. In Ludwig, the state brought suit to recover fees and commissions retained by the ex-officio collector of Carroll County in excess of those allowed by law. Defendant argued that in accepting his final settlements the state was es-topped from asserting its claim.

The court in Ludwig noted Hethcock and the cases upon which it relied, State ex rel. Scotland County v. Ewing, 116 Mo. 129, 22 S.W. 476 (1893); State, to Use of Lawrence County v. Shipman, 125 Mo. 436, 28 S.W. 842 (1894); and State ex rel. Shannon County v. Hawkins, 169 Mo. 615, 70 S.W. 119 (1902). In discussing these cases, the Ludwig court reasoned:

“But in all of the cases upon which the respondent relies there were two factors which the court said were determinative; one was the fact that the county courts acted judicially in approving the settlements and the other was ‘that the money was voluntarily paid, upon a mistake of law, and without fraud or mistake of fact; and (as) in ordinary cases, in transactions between individuals, money thus paid could not be recovered back.’ ” (l.c. 850)

Then the Ludwig court cited the Lamar case and quoted with approval from that opinion as follows:

“ ‘The shadowy reason behind the holdings in these cases smacked of the doctrine of res adjudicata, and accord and satisfaction.’ ” (l.c. 850-851)

Ludwig noted that since the 1945 Constitution settlements with eounty courts do not have the force they once had and further that eounty courts do not now act judicially in accepting and approving collectors’ reports. Ludwig then held that recovery could be had against the collector despite the settlement.

Defendants’ reliance on Hethcock for a rule of law that settlements between collectors and county courts are final and binding is misplaced, Ludwig having abrogated the holding of Hethcook and the earlier cases on which it relied. Defendant Kansas City makes some point that Hethcock was not cited in Lamar, but the Ludwig court clearly considered it in reaching its result.

Plaintiff argues that since the state was allowed to recover excess commissions retained under a mistake of law in Ludwig, then justice requires that a recovery for overpayments by a collector as in the instant ease also be allowed. Defendants urge that Hethcock is controlling and that the principles in Ludwig do not apply to a voluntary failure to retain sufficient commissions. Both parties omit reference to an important line of cases beginning with State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466 (banc 1924), which shed considerable light on the issue of the converse of the rule in Ludwig. In Hamilton, the former clerk of the circuit court of Crawford County brought a proceeding in mandamus to recover salary allegedly still owing. Under the facts, the clerk’s salary was determined according to a formula based upon the vote in presidential elections. The clerk was paid when he filed an account with the county court and the court, apparently without question, would pay the amount stated. During the years 1921 and 1922, the clerk used the population figures from the 1916 presidential election to ascertain his salary, rather than those from the 1920 election which were higher. A mistake of law was relied on as a defense. In conceding that the mistake might have been one of law, the court found that such would not preclude recovery because the transaction was one between public officials as to public funds, citing Lamar Township v. City of Lamar, supra. “If the law will compel the restitution of public funds paid over under a pure mistake of law, the converse should also be true, i.e., that if such funds have been retained through a mistake of law, the right to their payment should not be denied.” State ex rel. Moss v. Hamilton, supra at 470. See also, State ex rel. Jarvis v. Dearing, 274 S.W. 477 (Mo.App.1925); State ex rel. Chaney v. Grinstead, 314 Mo. 55, 282 S.W. 715 (banc 1926); Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665 (1940).

In view of the doubtful vitality of Hethcock v. Crawford County and the holding of State ex rel. Moss v. Hamilton, and viewing the pleadings most favorably for plaintiff, it cannot be said that plaintiff is not entitled to recover as a matter of law. The trial court, therefore, erred in dismissing the petitions. What has been said concerning the pleadings is not a determination of the plaintiff’s right to recover; that must await the proof. Appellate courts should be reluctant to construe the law on the basis of the suppositions of the pleadings alone. Ingalls v. Neufeld, 487 S.W.2d 52 (Mo.App.1972). An appellate court “ ‘is neither a law school nor a debating society,’ ” and must avoid the theoretical statements of law upon a statement of facts which might never be developed. Ingalls v. Neufeld, supra; Kersey v. Harbin, 531 S.W.2d 76, 82 (Mo.App.1975).

Defendants’ contention that the appeal is untimely is without merit.

The judgment of dismissal is set aside; the cause is reversed and remanded with directions to reinstate the petitions.

All concur.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    Clarence R. SIFERS, Appellant, v. Martha Stevenson SIFERS, Respondent.
    No. KCD 27747.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Howard E. Bodney, Kansas City, Paul Scott Kelly, Jr., Gage & Tucker, Kansas City, of counsel), for appellant.
    Robert E. Sharp, Sharp & Korth, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Clarence Sifers filed a motion to modify a divorce decree in which he had been ordered to pay Martha Sifers $400 per month alimony. The court overruled the motion and this appeal follows.

Clarence contends the court erred in overruling his motion because the evidence showed he had lost his job and was in poor health and did not expect to have any income except social security. Affirmed.

Clarence and Martha were divorced in December, 1972. A motion to modify was filed by Clarence in December, 1974. At a hearing on this motion, Clarence testified the only property he had after the divorce was $19,000 which represented his net share of the sale of the residence he and Martha had occupied. At the time of the divorce, Clarence was employed at a salary of $15,-000 per year. In the divorce decree, Clarence was awarded the custody of a 19 year old daughter for whom he testified he had paid college expenses.

In September, 1973, Clarence underwent surgery for the removal of a malignant kidney. Thereafter he was advised by his physician there was apparently no further malignancy.

In February, 1974, Clarence remarried. Within a week after such remarriage he said his job was terminated by his employer.

Clarence stated at the time of the hearing the $19,000 was completely exhausted. He stated he had paid Martha about $9,000 in alimony, but he did not account for the balance. He stated his present wife pays all of his food, clothing, medical, dental and country club expenses. He had applied for social security benefits on the basis of age and not disability.

Clarence stated he had applied for employment with several chocolate companies since his entire work life had been in this industry, but had been unable to find a job. There was no evidence offered to show Clarence was physically unable to work or that he had any disability which would prevent him from working in the future.

Martha testified she and Clarence were married 33 years. She stated he and she are both about 62 years of age. She said her net worth was about $51,000, but she was being forced to sell her home because she could not afford to keep it up. She stated her income, exclusive of alimony, was about $2,000 per year from stock dividends. Her living expenses are $882 per month. No question was raised concerning the reasonableness of this amount.

Martha said her only work experience was as a sales person. However, she had sustained a broken bone in her foot and even though she had tried to continue her sales work was unable to do so because of her foot difficulty. She further stated she was unable to find any other work. She also had applied for social security benefits but had been rejected because she did not qualify because of her insufficient time of employment.

Martha said Clarence had not actually paid the educational expenses of the daughter because the daughter’s grandfather had purchased a life insurance policy which was paying such expenses. Martha testified she had purchased the daughter’s clothing.

The burden of proof on a party seeking modification of a divorce decree rests with the moving party. McGinley v. McGinley, 513 S.W.2d 471, 473[2-4] (Mo.App.1974). In seeking to carry his burden of proof, Clarence argues the new dissolution of marriage law, §§ 452.300 to 452.415, RSMo 1975 Supp., requires the court to apply the factors enumerated in § 452.335 when it rules on a motion to modify. This contention is in error since § 452.335 applies to the amount of maintenance which the court initially orders. A modification of that amount is governed by § 452.370. Under that Section, the court is authorized to modify a divorce or dissolution decree only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. This was the burden of proof which Clarence was required to carry. The court did not make findings of fact, but it follows from the order made overruling the motion to modify, the court did not find Clarence had sustained his burden. Rule 73.01, subd. 1(b). A review of the evidence leads this court to the same conclusion.

Clarence makes his main argument in an effort to show he sustained his burden of proof by arguing his operation and the loss of his job. However, there was no evidence introduced to show he was unable to work at the time of the hearing or that he would be unable to work thereafter. Further, he made some attempt to show he was unable to obtain work, but confined this effort to showing he had applied at a relatively few chocolate businesses. He did not show there was any reason to expect he would not be able to find employment if he seriously sought it.

Modification was sought on the basis Clarence had lost his job, was in poor health and was unable to obtain other employment. His evidence did not support these contentions.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Joan Alderman WALTER, Respondent, v. Harry Jacob WALTER, Appellant.
    No. KCD 27432.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Charles P. Schleicher, William M. Wun-derlich, Kansas City, for appellant.
    Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The parties were divorced by decree of May 3, 1968, and in anticipation of that event, executed a Stipulation and Separation Agreement and a later addendum to settle the marital property and make provision for alimony and support of the children. The court approved the agreement, awarded the wife a fixed alimony and custody and support for the seven children according to the terms of the marital contract, which the court adopted into the decree for those purposes.

The writings are not made part of the transcript on appeal, nor is the original decree, and what we know of them comes from the comment of court and counsel.

In March of 1973, the wife moved to modify the decree to increase alimony and child support and asked for an allowance for attorney fee. The husband responded with a motion to eliminate alimony, or to decrease it, and to reduce the child support previously awarded. The parties now agree that the alimony provision in the contract made in anticipation of divorce binds them both and may not be modified without their consent. They also agree that no concurrence between parents may oust a court of jurisdiction to make provision for the support and other welfare of minor, unemanci-pated children properly before the tribunal. Accordingly, court and counsel proceeded on the premise that the alimony obligation arose from the Separation Agreement, not statute, and was not subject to judicial modification. They adopted the procedure, also, to treat the pending motions as a request for the court to fix the obligations for alimony and child support under the Agreement and then to determine whether the evidence proved the change of circumstance contended by the respective parties. The alimony and child support provisions of the contract were expressed by a formula which allocated definite amounts for each, but also other sums payable to third persons — such as purveyors of food and services — for the benefit of the children. The parties had become uncertain of their rights and obligations for alimony under the contract and for the child support as adopted into the decree from the contract.

The court determined, first, that the contract and decree obligated the husband to pay the wife $314.35 as alimony per month and $97.95 as support for each of the seven children per month. The court determined, second, that change of circumstances justified an increase in support payments of $75 per child and entered judgment that the husband pay the wife $172.95 for the support of each of the seven children per month. The court determined, third, that the wife have judgment for costs and $1275.00 allowance for attorney fee.

The parties have each appealed from this judgment. The wife contends that the evidence justified a much larger increase for child support. The husband contends, variously, that 1) the court miscalculated his obligation for alimony under the Agreement; 2) the mother failed her burden of proof and did not show the needs of the children by evidence; 3) the increase for child support was excessive; 4) the awards for costs and attorney fee were not justified, or at least excessive.

The husband asserts the first point that the terms of the Stipulation and Separation Agreement are unambiguous and so to be enforced according to the plain terms without resort to construction. He complains that the judgment rests on testimony by the husband, extrinsic to the agreement, that he considered his total family obligation under the contract to be $12,000 per year, and so violates the parol evidence rule within the principle of Dutcher v. Harke, 377 S.W.2d 140 (Mo.App.1964).

Our study of the writings leave no wonder that the parties have previously sought definition of the terms — only to be abandoned in frustration — and must now call on the court again to fix their rights and obligations under those instruments. Only a disingenuous argument can insist that the calculations they describe are self-evident. The statement of the financial undertaking, rather, is ponderous, involved, contingent, qualified and tedious in detail. These observations are expressed more poignantly by the trial court:

[T]he Court has reviewed these agreements in detail and finds the terms respecting support of the wife and children to be complex to the point of absurdity. These agreements qualify admirably as an example of legal draftsmanship having no recognition of practical necessities and containing all the inherent ingredients of future controversy.

The court went on to abstract the agreements to these basic terms of support from the husband to the family:

(a) $250 maximum per month for groceries.
(b) Mortgage loan payments on the residence (or $160.00 per month in lieu thereof, taxes, insurance and $15.00 per month exterior maintenance.
(c) $1824.00 annually for entertainment, medical expense, clothing, education and gifts for the children.
(d) $200.00 monthly as alimony to plaintiff.
(e) $25.00 monthly per child as child support.
As to items (a) and (b) above, one-eighth of each payment is designated to be for the benefit of the wife, there being seven children born of the marriage. Other provisions relative to the support payments such as the discretion given [husband] as to whom and for what purposes payments will be made and the use to be made by [wife] of sums given her are of no assistance in the problem at hand and may be disregarded.
Reducing the payment obligation to an amount per month per child, the following result is obtained:
(a) Food (⅛ of $250.00) $31.25
(b) Housing (⅛ of $160.00— payments for taxes, insurance, etc. being indefinite are disregarded) 20.00
(c) Entertainment, clothing, etc. ($1824 -s-12-5-7) 21.70
(d) Unallocated cash payment 25.00
Total Monthly Support Per Child $97.95
The above figure correlates with [husband’s] contention of $1000.00 monthly as his aggregate liability for alimony and child support .. . when the Vs allocations for the wife and the $200.00 monthly alimony amounts are added.
We thus interpret the present decree as obligating the defendant to payments of $97.95 per child support and $314.35 as alimony.

The husband agrees with the summary by the court of the support obligations under the agreements, but contends that the addition of the one-eighth allocations to the basic alimony sum of $200.00 results in a $251.25 monthly support to the wife, not $314.35 as found by the court. The husband complains that the result reached was derived by resort to the extrinsic evidence by the husband that his family support obligations, as he understood the agreements was to pay $12,000 per year —in contradiction of unambiguous writings. This argument assumes, once again, that the instruments express clear meanings. One of the stipulated purposes of the proceeding to modify was to fix the obligations of the husband. Since the taxes and other residence expenses were variable from year to year [as were numerous other items], it was manifestly impossible to fix a sum payable by the husband without an extrinsic frame of reference. That was provided by the testimony of the husband. The finding of the court which defined the monthly family obligation of the husband to the wife at $1,000 per month reflects no more than his own estimate of the contractual obligation. The practical construction which the parties themselves by their conduct give to an ambiguous contract bears directly upon the definition of the performance intended. Robson v. United Pacific Insurance Company, 391 S.W.2d 855, 860[4-9] (Mo.1965). This point is ruled against the husband.

The next contention is that the evidence by the mother does not prove new needs by the children and their cost. There was evidence that the children were by then some five years older and the additional costs that entails. At the time of the divorce, they ranged from three to eleven years in age; at the modification they were from eight to sixteen. There was evidence of the steady inroads of inflation during that period. These are sufficient change of circumstances to justify modification of support allowances. Smolly v. Hoffman, 458 S.W.2d 579, 581[3, 4] (Mo.App.1970).

There was much more evidence of need and expense to keep the children properly, however, and the wife estimated that cost at $2579 per month. At the divorce, the children and their mother were living in the family home, but the dwelling deteriorated into uninhabitability. The plumbing was beyond repair, electricity malfunctioned, the roof leaked, windows were broken— among other defects. These conditions prompted their move into an apartment where the five boys shared one bedroom and the mother and two girls, the other. The cost of those quarters was $275 per month, but the wife estimated $650 per month as the reasonable cost of a suitable home for the family. Then, she testified to the cost for parochial school enrollment for the children — done at the request of the father — estimated at $190 per month. There was also the estimated $150 monthly cost for an automobile for the transportation of the children to numerous activities and for the use of the eldest boy, who had reached the proper age for that activity. The cost of proper feeding, medical care, social activities and clothing for the children, as well as other items of need, were all given. In light of this evidence of need, the court increased the support allowance $75 for each child — or a modification of $525 to a total of $1210.65 per month for the seven children.

The husband contends that the increase cannot be supported by the evidence. This contention must be examined in the context of § 452.370, Laws of 1973, which allows a modification of support only on changes of circumstance so substantial and continuing as to make the terms of the subsisting decree unreasonable. [Sifers v. Sifers, Mo. App., 544 S.W.2d 269 adopted concurrently]

The wife [here the custodial parent] was a registered nurse who for the two years preceding the modification motion had been employed by the Veterans Administration Hospital at a salary of $11,500 per year and enjoyed a net pay of $350 every two weeks. All of this resource was used for the support of the children because funds from her husband were not sufficient to care for the children. She had a $500 savings account pledge for the purchase of a used ear which had long since become useless and for which she still owed $61.94.

The father, on the other hand, owns the entire equity in two construction companies [E. J. Walter Plastering Company and Interstate Building Specialities Company] and substantial interest in two others. Although his two corporations operated at losses for the years 1968, 1969 and 1970, they have been profitable since so that in 1972, the E. J. Walter Company earned over $60,000 after salary and expenses paid to him, and Interstate earned over $22,000 after such payments. One of these companies had just concluded a $3,000,000 contract with Crown Center. While $40,000 remains unliquidated on a Small Business Administration Loan, funds are available but payment is withheld as a favorable business practice. One of the contingencies of the loan restricts the salary payable for each company, so that his present salaries are limited to $31,945 per year. He received other emoluments from these companies, however, free from personal taxation, among them, a Cadillac for personal use, an annual personal expense account of $10,000, memberships in two country clubs and payment for apartment utilities and a portion of the rent. His estimate for unreimbursed living expenses comes to $1262 per month.

This evidence sufficiently proves the basis for the increased child support allowances, the award for the attorney fee and costs, the ability of the father to pay them, and when the means of each parent is compared, the dominant economic means of the father to satisfy these obligations and expenses.

The judgment of the trial court rests on sound evidence and is affirmed in every respect.

All concur.

      . The husband testified, in fact, he had paid for support and alimony to the wife during the years from the decree to the modification proceeding annual sums which varied from some $13,600 to $15,600.


text:
    CARSON-MITCHELL, INC., Plaintiff-Respondent, v. MACON BEEF PACKERS, INC., Defendant-Appellant.
    No. KCD 27796.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    William D. Powell, Porter, Sprick & Powell, Columbia, for defendant-appellant.
    J. David Collins, Collins & Grimm, Macon, for plaintiff-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Carson-Mitchell, Inc., brought suit against Macon Beef Packers, Inc., to recover the balance due for engineering services. The court entered judgment on a jury verdict in favor of Carson-Mitchell for $3,842.15.

On this appeal Macon contends the court erred in overruling its motion for directed verdict made at the close of plaintiff’s evidence and in overruling its motion to have verdict and judgment set aside and to have a judgment in accordance with the motion for directed verdict because Carson-Mitchell was barred as a matter of law from recovery. The second ground urged by Macon is the refusal to give an instruction. Affirmed.

Carson introduced evidence to show that its owner, Chester Carson, was a registered engineer and at the request of Macon, he had prepared plans for the renovation of a building in which Macon was going to perform slaughter and meat packing operations. Macon made no objection to any services performed by Carson, but delayed payment because of its inability to obtain a small business loan. After waiting almost two years, Carson brought suit for the balance due.

Macon raised the defense that Carson-Mitchell, Inc. was not authorized as a corporation to practice professional engineering under Chapter 327, RSMo 1969. Macon’s pretrial motion on this ground was overruled, and at the close of plaintiff’s evidence, Macon filed a motion for directed verdict on the same ground. This too was overruled.

At the conclusion of Carson’s evidence, Macon introduced evidence. No motion for directed verdict was filed at the close of all the evidence.

Following the entry of judgment on the jury verdict in favor of Carson, Macon filed a “motion to have verdict and judgment set aside and to have judgment in accordance with the motion for directed verdict.” Coupled with this motion was a motion for new trial. On this appeal, Macon contends the court erred in overruling the motion to have the verdict and judgment set aside. The motion filed by Macon was intended to be a motion for judgment notwithstanding the verdict as authorized by Rule 72.01(b). However, the motion authorized by Rule 72.01 refers to a motion for a directed verdict made at the close of all the evidence. The rule requires the motion for verdict to be made at the close of all the evidence because a motion for directed verdict made at the close of the plaintiff’s evidence is waived when the defendant thereafter puts on evidence. Garvis v. K Mart Discount Store, 461 S.W.2d 317, 320[1] (Mo.App.1971).

Macon does not present a point which can be reviewed since it did not file a motion under Rule 72.01(b). The matter Macon seeks to question in the manner utilized was required to be raised in a motion for directed verdict filed at the close of all the evidence followed by a motion for judgment in accordance with such motion for directed verdict. Since Macon waived its motion for directed verdict at the close of plaintiff’s case, there was no subsisting motion for directed verdict to support an after trial motion.

Macon’s second point complains of the refusal of the court to give Instruction A. That instruction authorized a verdict for Macon if Carson-Mitchell, Inc., was not registered as being authorized to perform professional engineering services. Macon states in its brief it was entitled to “a determination by the jury as to whether or not the provisions of V.A.M.S. § 327.260 and § 327.461 were applicable to the instant action.”

The Sections relied on by Macon declare contracts to be void when they are made in violation of the requirements of Chapter 327 which relate to the registration of professional architects and engineers. The defense Macon relied upon was purely legal based upon the failure of Carson-Mitchell, Inc. to be authorized by the State Board of Registration for Professional Engineers to perform engineering services. The court ruled on Macon’s defense as a question of law. Thus there was no question of fact to submit to jury. The question presented by Macon’s defense was purely one of law.

It is the function of the jury to decide issues of fact and not to decide questions of law. Benham v. McCoy, 213 S.W.2d 914, 920[15-17] (Mo.1948). The determination of Macon’s legal defense was for the court. The court was not in error in refusing Instruction A which would have submitted a question of law to the jury. Gillioz v. State Highway Commission, 348 Mo. 211, 153 S.W.2d 18, 26[9-11] (1941).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Appellant, v. John Forrest JOHNSON et al., Exceptions of Don Hall, Inc., et al. Respondents.
    No. KCD 27803.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Darold W. Jenkins, Asst. Counsel, Missouri State Highway Comm., Kansas City, for appellant.
    James 0. Turner, Turner & Whetsell, Miner, Martin & Speiser, St. Joseph, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

The State Highway Commission filed suit against Don Hall, Inc., for the purpose of acquiring right-of-way for the construction of Interstate Route 29. The commissioners awarded Hall $36,333. On exceptions filed by Hall, a jury awarded Hall $25,000. Thereafter the court sustained a motion for a new trial filed by Hall and granted a new trial as to all issues.

The court granted the new trial on the grounds it erred in admitting evidence of general benefits. On this appeal, the Commission argues there was no evidence of general benefits shown. Affirmed.

Hall owned a tract containing 91.02 acres on the northwest side of Mound City, Missouri. About 42 acres were within the city limits. The tract lay in a triangular shape with the point to the north. On the east was U.S. Route 59 along which the Hall tract fronted for 3,150 feet. The Commission took a strip approximately 300 feet wide, located from 400 to 600 feet west of Route 59. Interstate 29 was a limited access highway, but an outer roadway was constructed on the west of the Interstate which gave access to the 22.82 acres Hall had remaining on the southwest side. The remaining 43.74 acres on the northeast of 1-29 had access to Route 59. A diamond interchange with Route 118 about a quarter of a mile south of the Hall tract gives access to the Interstate from both the outer roadway and Route 59.

Hall introduced evidence to show his damages at a high of $224,348. The Commission’s low damage testimony was $24,-975.

Mr. Heck was called by Hall to testify to the purchase price which Mr. Heck and his brother paid Hall for about six acres adjoining Route 59 and on which the Hecks established a John Deere dealership. The issue in this case revolves around the following questions and answers during the cross examination of Mr. Heck:

Q. (By Mr. Jenkins): Mr. Heck, please don’t let me mislead you. Is this highway going to have — let’s say is it going to improve land values in and around Mound City?
MR. TURNER: Your Honor, I will object to that—
MR. JENKINS: In your opinion?
MR. TURNER: —on the grounds he has got to show a special benefit to the defendant and not a general benefit. He is talking about a general benefit.
THE COURT: Let the counsel complete his question and then make the objection.
MR. TURNER: I’m sorry.
Q. (By Mr. Jenkins): I’m asking you as a businessman of long standing in Mound City, knowing this tract both before and after, I am asking you your opinion as to whether or not land now abutting old Route 59 with good vision from 1-29 sells better than it would without 1-29? Suppose 1-29 was five miles east?
MR. TURNER: All right, Your Hon- or, he is just belaboring the question so he can testify himself. You are trying to testify. My objection is he is asking for a general benefit and not a specific benefit, and he has got to show a specific benefit the landowner is getting.
THE COURT: This is cross examination and he has a right to test his judgment generally as to values. Objection overruled.
Q. (By Mr. Jenkins): Please don’t let me put words in your mouth, if you can and want to answer it go ahead and answer it?
A. Well, I would say there that you said does the highway benefit, to some extent yes, some extent no. Average sales — I looked up my average sales per square mile of land in Holt County and I averaged selling over $600.00 worth of machinery per square mile of land throughout the county. Now then, you come in and take out some of the best farm land we have, whereas you could have taken out some of the—
Q. 25 acres?
A. Yes, and therefore my sales are down. 8 square miles has been taken out of the county due to Interstate 29. Therefore, naturally my sales are down six eights or $4800.00 on an average.
Q. Are you through? Tell me one business in Holt County that hasn’t been affected by the same recession that has affected you? Everybody is down, is that true sir?
A. No, sir. My sales is up over 200 percent this year.
Q. And it is your testimony that because the State of Missouri, State Highway Commission elected to build 1-29 across this tract of land that your land and your business — you are going to be put in real bankruptcy, is that the gist of your testimony, sir?
A. No, sir.

The trial court concluded it had erroneously admitted evidence of general benefits through the above testimony. On this appeal, the Commission argues the above does not show evidence of general benefits, and for that reason, the order granting a new trial was erroneous.

An analysis of the cross-examination reveals Mr. Heck was first asked if 1-29 was going to improve land values in and around Mound City. This question was not answered. The next inquiry was whether or not land abutting Route 59, with good vision from 1-29, sells better than it did without 1-29. There can be no doubt these questions both called for general benefits. State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340[1] (banc 1929). These questions clearly referred to benefits accruing to the owners of property generally in the neighborhood or vicinity of 1-29. No attempt whatever was made to show any special benefit to any particular tract.

The response made by Mr. Heck indicated the highway would benefit land fronting on Route 59 to some extent. He added to some extent there would be no benefit, but the remainder of his answer and his subsequent replies all clearly reveal the negative part of his answer referred to the fact the highway was taking agricultural land out of production. This in turn resulted in a lowering of the demand for farm machinery and to that extent the location of 1-29 did not benefit Mr. Heck.

There can be no doubt the Commission introduced through witness Heck the issue of general benefits by showing the building of 1-29 would increase land values along Route 59, some of which belonged to Hall. Thus, when the jury considered the market value of Hall’s tract, before and after the taking, there was evidence from which they could find the value of the land abutting Route 59 was more valuable solely by reason of the location of 1-29. This evidence effectively injected the issue of general benefits into the jury’s determination of the before and after value. Under the settled law in this state, it was error to permit the jury to consider any general benefit to offset the damages sustained by Hall. State ex rel. State Highway Commission v. Southern Development Co., 509 S.W.2d 18 (Mo.1974).

The Commission makes some argument that even though Hall objected when the question concerning general benefits was asked, still no request was made for the court to give the withdrawal instruction, MAI 34.02, to advise the jury not to consider general benefits. However, the notes on use following 34.02 do not require Hall to offer such instruction. Absent a mandatory direction that a withdrawal instruction be offered by a party who has objected to the admission of evidence, there was no requirement for Hall to offer this instruction.

A proper objection was made at the time the question was propounded, this matter was raised in the motion for a new trial, and the court concluded it had erroneously overruled this objection and allowed evidence of general benefits to be placed before the jury. The court was correct in so holding.

The order granting a new trial is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Gayla MOORE, Respondent, v. Edith C. MOORE, Appellant.
    No. 27804.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Robison & Miller, Maysville, for appellant.
    Richard G. Poland, Cameron, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for wrongful foreclosure of deed of trust. Jury in trial court found for plaintiff and awarded her $2,104 actual damages and $7,500 punitive damages. Defendant has appealed.

In 1969, Charles R. Moore and his wife, Gayla Moore, became interested in purchasing a residence in Cameron, Missouri. Charles’s grandmother, Edith C. Stokes (now Moore), defendant-appellant herein, purchased the house and sold it to Charles and Gayla for $23,000. Mrs. Stokes took a purchase money deed of trust for the entire purchase price. The Moores executed two notes, secured by the deed of trust, dated May 21, 1969, one for $15,000 and the other $8,000. The $15,000 note was to be repaid in monthly payments of $62.50 plus accrued interest at 5%, beginning August 1, 1969. The $8,000 note was made payable at the rate of $34.80 per month.

Receipts produced at the trial indicate that payments were made to Mrs. Stokes as agreed until around June 1, 1970, when principal payments were omitted and interest only was paid through January, 1972.

At sometime Mrs. Stokes endorsed the $15,000 note to her grandson, Charles Moore, and she endorsed the $8,000 note to her daughter, Juanita Uthe, the mother of Charles. Beginning February 1, 1972 payments of $50 per month were made to Mrs. Uthe. Receipts showed that the payments were applied against the principal of the $8,000 indebtedness. The last receipt, dated September 1,1973, showed a balance due on the indebtedness of $7,000. According to Mrs. Stokes she never delivered the notes to the endorsees. She kept them in her possession but did authorize the payments to be made to Mrs. Uthe. As best can be understood from Mrs. Stokes’s not too clear explanation of the transaction, she wished to help her grandchildren and she had aided another grandson in purchasing a house. Her idea in endorsing the notes and keeping them was to retain control over them as long as she lived, with the endorsees becoming entitled to them upon her death.

Charles and Gayla encountered financial and marital difficulties. In September, 1973, Charles left the family home and went to live with his mother. After the separation Charles spoke to Gayla about “signing the house back” to his grandmother, saying that they could not pay for it and it did not belong to them anymore. Gayla declined to execute a quitclaim deed.

Sometime after the separation, Mrs. Moore, Charles and Mrs. Uthe met in Mr. Miller’s law office. Charles endorsed the $15,000 note back to his grandmother. Mrs. Uthe endorsed the $8,000 note back to her mother.

On October 17, 1973, Mr. Miller, the trustee under the deed of trust, wrote Charles and Gayla and informed them that he had been requested to enforce collection of the notes or proceed with foreclosure. His letter stated that the balance due on the $15,-000 note was $15,254.15 and on the $8,000 note, $9,200. Gayla made no response to the letter.

In November, 1973, publication of notice of trustee’s sale was begun. Because the trust deed had erroneously described the property as being located in DeKalb rather than Clinton County, notices were published in both counties and on December 14, 1973, a trustee’s sale was held at the courthouse in both counties and Mrs. Moore bid in the property for $15,000.

In January, 1974, Charles filed proceedings for dissolution of his marriage to Gay-la. The marriage was dissolved and as a part of the property settlement or division Gayla received whatever interest the couple had in the residence in question.

In April, 1974, Mrs. Moore filed an action against Gayla to recover possession of the property. Possession was delivered to appellant on June 18, 1974.

On June 6, 1974, Gayla began this action. Her petition was in two counts. By Count I she sought to set aside the foreclosure for defects in the foreclosure proceedings. Count II alleged that the foreclosure was the product of a conspiracy between her husband and the defendant “to deny the plaintiff of her marital rights in and to the residential property * * The petition charged that the foreclosure was wrongful “in that a demand was made of plaintiff vastly in excess of the amount of indebtedness, if any, in furtherance of an illegal conspiracy to deny this plaintiff her marital rights in the property * * The petition asked for $20,000 pecuniary damages, $20,000 for mental anguish and $50,000 punitive damages.

The defendant’s answer asserted the validity of the foreclosure and relied upon plaintiff’s failure to give notice of intention to redeem or to tender the amount due on the notes. It denied generally the allegations of the petition. Defendant also counterclaimed for rent from the date of the foreclosure.

At the trial, plaintiff testified and called Charles, his mother and the defendant as adverse witnesses. The defendant offered no testimony. At the close of the evidence, defendant moved for a directed verdict on the grounds that recovery by plaintiff could be allowed only upon a showing that the foreclosure sale was void and that no such showing had been made. The motion was overruled.

Plaintiff then submitted the issues under Count II, with her principal instruction stating her theory of recovery as follows:

“Your verdict must be for the plaintiff Gayla Moore on her petition if you believe:

“First, that defendant knowingly demanded of plaintiff a sum of money far in excess of the actual indebtedness.

“Second, that such demand by defendant was in furtherance of a scheme to deny the plaintiff of her marital property rights.

“Third, that the note or notes necessary to disprove defendant’s demand were in control of defendant or those acting for her.

“Fourth, that from January 1972 until September 1, 1973, defendant led plaintiff to believe that no payment was due on the $15,000.00 and that plaintiff relied on said belief.

“Fifth, if you believe the plaintiff was damaged thereby.”

The jury returned a verdict for plaintiff of $2,104 actual damages and $7,500 punitive damages and found for plaintiff on defendant’s counterclaim. By a post-trial order the court sought to reduce the amount of punitive damages by remittitur of $3,000. Appellant acknowledges that the order was not timely filed.

On this appeal, appellant first contends that the trial court should have sustained her motion for directed verdict because plaintiff’s cause of action for damages was a collateral attack on the trustee’s sale, permissible only when the foreclosure is void because no right to sell existed, and plaintiff proved only, at best, a sale voidable because of irregularities.

In Spires v. Lawless, 493 S.W.2d 65, 71— 72[8] (Mo.App.1973), the Springfield Court of Appeals made the following apropos statement regarding the law in this area in Missouri:

“Recovery for wrongful foreclosure has been allowed in such widely varying circumstances that it is doubtful that any single theory of recovery is applicable to every case which has been called an ‘action for wrongful foreclosure’. The best that can be said is that the authorities cannot be fully reconciled, and an examination of the topically collated cases to discover the true basis of legal liability in such actions obscures as much as it clarifies. In this jurisdiction, our Supreme Court, in Peterson, supra, [Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770], carefully distinguished those ‘wrongful foreclosure’ cases which are really actions based on active fraud or fraudulent conspiracy, e.g. Stansberry v. McDowell, Mo.App., 186 S.W. 757, from cases like Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, 78 S.W. 1006, subsequent appeal 121 Mo.App. 156, 98 S.W. 783, and Rogers v. Barnes, 169 Mass. 179, 47 N.E. 602, 38 L.R.A. 145, and held, as we read the case, that an action at law for damages for wrongful foreclosure can be maintained against the mortgagee only when the sale is absolutely void because the mortgagee had no right to foreclose at the time foreclosure proceedings were commenced. Peterson, supra, 339 Mo. at 706-708, 98 S.W.2d at 774-775[4]; 108 A.L.R. at 588-589. See also Loeb v. Dowling, 349 Mo. 674, 679, 162 S.W.2d 875, 877[1, 2].”

In Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770 (1936), the court stated (98 S.W.2d 773-774):

“The fatal defect in plaintiff’s case is that, while she seeks to recover damages on the theory that she lost her equity of redemption in the land by a wrongful foreclosure by the mortgagee, her proof shows that defendant had a right to foreclose under the terms of the trust deed because of her defaults. A mortgagee’s act of commencing a foreclosure cannot be wrongful when there is a clear right to foreclose. See Hayward Farms Co. v. Union Savings Bank & Trust Co., 194 Minn. 473, 260 N.W. 868. The most that plaintiff’s evidence tends to show is not a wrongful foreclosure by the mortgagee, but only an improper execution of a rightful foreclosure. The cases of Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, 78 S.W. 1006; 121 Mo.App. 156, 98 S.W. 783, and Rogers v. Barnes, 169 Mass. 179, 47 N.E. 602, 38 L.R.A. 145, upon which plaintiff relies are true cases of wrongful foreclosure by the mortgagee. In the Real Estate Syndicate Case, the mortgagee had no right to foreclose because he had made a valid extension agreement. In the Rogers Case, the mortgagee had no right to foreclose because there was no default. The case of Stansberry v. McDowell (Mo.App.) 186 S.W. 757, also cited by plaintiff, was not a true case of wrongful foreclosure, because the obligation secured had matured as the court there recognized; but there the cause of action was based on a fraudulent conspiracy to conceal the note and accomplish foreclosure without plaintiff’s knowledge, in face of plaintiff’s active efforts, made known to defendants, to find the note and prevent foreclosure by paying it. The right to recover there was neither based on wrongful foreclosure nor improper execution of a foreclosure but for acts of active fraud which caused damage. It has no resemblance to this case. Sherwood v. Saxton, 63 Mo. 78, was an action against a trustee for wrongfully releasing responsible bidders who had purchased at a proper foreclosure sale, and then selling at a second sale for less money. Of course, this caused a loss to the mortgagor and there was a definite basis for computing his damages.”

Respondent does not here directly assert that the foreclosure sale was void. Her response to appellant’s argument is that in Edwards v. Smith, 322 S.W.2d 770 (Mo.1959), the Supreme Court authorized direct action at law against the mortgagee for wrongful foreclosure. Edwards v. Smith did recognize the distinction pointed out in Peterson v. Kansas City Life, supra. In permitting the cause of action for damages, the court pointed out (322 S.W.2d 776):

“Assuming, for the purposes of this opinion, that the Smiths, in the manner heretofore discussed, waived the right to insist upon prompt payment of the installments, then they did not have the right to foreclose at the time they directed the trustee to do so and hence the trustee’s sale would constitute a wrongful foreclosure. In that situation plaintiffs could have brought a suit in equity to set aside the sale, or, let the sale stand and sue at law for damages.”

In the Edwards case, the mortgage called for $15 monthly payments. The court held that testimony that the mortgagee had agreed to accept multiple payments irregularly, based upon the mortgagor’s receipt of bonus compensation from his employment, and had received, without objection, payments on such basis, should have been received as tending to prove that the mortgagee “by words and conduct, had induced the plaintiffs to believe that the method of payment they had adopted would not result in foreclosure. The theory is that the agreement would constitute a waiver or estoppel to invoke the acceleration clause until after the mortgagee has given reasonable notice that he will no longer be bound by his gratuitous agreement.”

In Edwards, when four monthly payments were unpaid, foreclosure was begun without notice to the mortgagor. When the mortgagor received notice of the pending foreclosure, he immediately got in touch with the mortgagee and sought to pay the delinquent payments, but payment was refused by the mortgagee.

The Edwards case is distinguishable on its facts from this case. Respondent admits that she received the demand for payment of the full amount of the notes. She admits that she was notified of the foreclosure sale before it took place. She did not question the right of the appellant to invoke the acceleration clause in the notes. She acknowledged that payments had not been made as called for. She did question the amount appellant’s demand called for but not before the foreclosure. Respondent has not brought herself within the Edwards case because she did not show the prerequisite absence of a right to foreclose.

Although respondent has not cited the case of Stansberry v. McDowell, 186 S.W. 757 (Mo.App.1916), the allegations of her petition evidence an attempt to state a claim akin to that involved in Stansberry of fraudulent conspiracy. She alleged a demand in excess of the amounts due on the notes and an unsuccessful effort to obtain production of the notes in order to ascertain the amount of the actual indebtedness. However, she offered no evidence in support of the latter allegation. In Stansber-ry, the mortgagor proved that the defendants “concealed the note when they knew plaintiffs were seeking it, and this they did for the sole purpose of realizing a profit, which in all probability they would not have made if plaintiffs had known of the whereabouts of the note or of the date of the foreclosure sale.” 186 S.W. 759.

At the trial here, plaintiff produced receipts and cancelled checks which provided the basis of her contention, submitted in her Instruction No. 4, that the sum of $21,-542.76 was “the valid existing lien or mortgage against said property.” Some of the checks were drawn by plaintiff-respondent. Her former husband testified that plaintiff “generally took care of that stuff. She wrote the checks and made our (sic) the bills, you know.”

Respondent’s ultimate reliance would have to be of a “fraudulent conspiracy to defraud her of her marital rights in the property.” This basically is premised upon the fact that until her marital difficulties with the mortgagee’s grandson, the mortgagee had been content to ignore the failure to make payments on the note as agreed upon. However, the motive which prompted the demand for payment of the notes and the ultimate foreclosure is immaterial insofar as this action is concerned if the right to foreclose did exist, Owens v. Owens, 347 Mo. 80, 146 S.W.2d 569, 577[7-9] (1940). Respondent did not disprove the existence of such right. Therefore, the motive for the foreclosure provides no basis for a claim of fraud.

In conclusion, this case is controlled by the rule laid down in Peterson v. Kansas City Life Ins. Co., supra. The trial court should have sustained appellant’s motion for directed verdict.

Judgment reversed.

All concur.


author: PER CURIAM.

text:
    In re the MARRIAGE OF Betty Jane BYLER, Respondent, and John T. BYLER, Appellant.
    No. 27868.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    William Brandecker, Ronald E. Smull, Brandecker & Smull, Columbia, for appellant.
    Dale Reesman, Williams, Reesman & Tate, Boonville, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

This is an appeal taken by the husband from a decree entered in a dissolution of marriage proceeding. It is confined to two of the decretal provisions: (1) that awarding the wife custody of the two year old female child born of the marriage; and (2) that awarding attorney fees to the wife. As to the first, the husband contends that the wife was guilty of certain indiscretions which made her unfit to have custody of the child. As to the latter, the husband contends the wife was financially able to pay her own attorney fees.

The paramount concern when determining child custody is the welfare and best interest of the child. Section 452.375, RSMo Supp.1973; In Interest of B. B., 537 S.W.2d 682, 684 (Mo.App.1976); In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975). A trial court’s order fixing custody should not be disturbed on appeal unless the welfare and best interest of the child compel a différent disposition. In re Marriage of Powers, supra. When called upon to review child custody orders, appellate courts should vigilantly heed the fact that the trial court is “in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” E_ (S_) v. E_, 507 S.W.2d 681, 684 (Mo.App.1974). Appellate courts therefore should cautiously refrain from substituting their judgment for that of the trial court in child custody matters, and do so only when the trial court’s order fixing custody lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); and B_ A_ S_ v. G_ R_ S_, Mo.App., 541 S.W.2d 762, handed down September 21, 1976, by the Missouri Court of Appeals, St. Louis District. When the aforesaid legal precepts are superimposed on the record before this court, it cannot be said that the trial court erred in awarding the wife custody of the two year old female child.

Section 452.355, RSMo Supp.1973, vests a trial court with broad discretion in awarding attorney fees in a dissolution of marriage proceeding. Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975). Under the applicable statute, Section 452.355, supra, the need of a party is but one factor to consider in awarding attorney fees. When the record before this court is read in light of these legal templates, it cannot be said that the trial court erred in awarding attorney fees to the wife.

Judgment affirmed pursuant to Rule 84.-16(b).

All concur.


text:
    STATE of Missouri, Respondent, v. Joseph G. BAILEY, Appellant.
    No. KCD 27884.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    John E. Craig, Levy & Craig, Kansas City, for appellant.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant was convicted of assault with intent to kill with malice and was sentenced to imprisonment for a term of fifteen years.

The offense arose from a homosexual intrigue among male frequenters of a tavern. The role of each actor is far from pellucid, and the motives remain to be explained, but the conviction rests on these clear inferences:

The victim, Perez, was manager of the tavern, and Bailey, the defendant, had done occasional work there. Bailey had yet to be paid for his latest labors. At closing time, Perez was collecting the receipts from the cash registers when he was set upon by Bailey, Miller and Hastings. According to the testimony of Liberty, who sold his favors to other male customers at the tavern, Miller had laid plans with him, Hastings and Bailey to kill Perez and his male lover, Nicely, in order to become dominant at the bar.

The testimony of the defendant Bailey contradicted this evidence and contended that he had asked Perez for the balance of his pay, but was verbally abused by Perez who then assaulted him with a pistol. Bailey became frightened, attempted to wrest the weapon from him, and during that encounter struck Perez on the head with an object and injured him. The defendant at that time was under the influence of LSD which he had taken earlier that Saturday to prepare himself for a party night.

The defendant gave a confession to the police that he had conspired to kill Perez, but at the trial renounced the statement and asserted self-defense.

The victim Perez testified at the trial that Miller, Hastings and defendant Bailey were those who assaulted him. On cross-examination he acknowledged that, the day after the attack, he had stated to Detective Mynatt at the hospital that Miller, Hastings and Liberty had made the assault.

After he gave his own testimony of self-defense, the defendant called to the stand Detective Mynatt to impeach the testimony of Perez on the basis that there was a contradiction between his trial evidence and his statement to Detective Mynatt which did not identify the defendant Bailey as one of those who had made the assault upon him. The court sustained the objection by the State, allowed an offer of proof, but rejected the proffered evidence on the ground that the statements by Perez were not inconsistent.

The basis for the exclusion of the Mynatt testimony by the court is clear, but what impeachment the defendant really intended by the offer of proof remains obscure. The single point on this appeal argues that the disallowance of that testimony was error. The motion for new trial, however, does not save any specific contention, but only: “The Honorable Court erred as a matter of law in not allowing Detective Mynatt to testify.” This mere allegation without reasons does not comply with the requirement of Rule 27.20(a) for detail and particularity in the assignment of error. State v. Mitchell, 500 S.W.2d 320, 321 (Mo.App.1973). Nor do we see any manifest injustice from the alleged trial error. Rule 27.20(c).

The appeal is dismissed.

All concur.


text:
    Leslie Junior ROARK II, Respondent, v. Patricia Ann Mary HARVEY, Appellant.
    No. 27927.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Daniel M. Czamanske, Parkville, for appellant.
    Benny J. Harding, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Following divorce, granting father reasonable visitation privileges with minor son whose custody was awarded to mother, father sought to modify decree to grant specific visitation privileges. Mother filed cross-motion, seeking to further limit father’s visitation and seeking increase in support for child from $20 to $40 per week. After a hearing, trial court granted father’s motion and denied mother’s. She appeals.

Leslie Junior Roark II (“Jay”) and Patricia Ann Mary Roark (“Pat”) were divorced by decree entered in the Platte County Circuit Court, February 10, 1972. Custody of the couple’s three-year-old son, Leslie Junior Roark II (“Les”), was awarded to Pat. On February 7, 1972, the parties had entered into an agreement by which they agreed to recommend to the court that custody of the child be given to the mother and that the husband pay $20 per week for his support. The agreement further provided:

“It is agreed that Husband shall have reasonable visitation rights which will consist of him picking up the child at the home of the Wife at 9:30 A.M. on Saturdays and shall have custody of said child until 6:30 P.M. Sundays which will be every other weekend; Husband shall have visitation with the child every other holiday which holidays shall consist of Thanksgiving, Christmas, New Year’s Day, Easter, 4th of July, Labor Day, and the child’s birthday, that is to say that if wife has child commencing with Thanksgiving Day of 1972, Husband shall have the child of (sic) Thanksgiving Day of 1973, and that if Wife has child on Christmas of 1972 Husband shall have the child on Christmas of 1973, and the same shall apply to New Year’s Day, Easter, 4th of July, Labor Day and the child’s birthday. It is further agreed that the Husband shall have the care, custody and control of the minor child for two weeks during the summer and said time for vacation shall be discussed by and between the Parties at least one month prior to vacation time.”

The decree of divorce did not incorporate the agreement and provided only for reasonable visitation by the father.

Visitation by Jay proceeded generally in accordance with the agreement until August, 1974, when Pat, for reasons discussed below, decided that the prior visitation arrangement was no longer reasonable and sought to limit the child’s visits with his father to five hours once every three weeks. The father’s motion to modify was filed September 12, 1974.

At the hearing on the motion in February, 1975, Jay testified that he was a switchman for the Missouri Pacific Railroad. He was earning $44 per day compared with $36 per day at the time of the divorce but had been on the extra board and worked less frequently. In February, 1973, he had remarried. His present wife, Linda, had a five-year-old daughter (Marla Sue Hopple) by a previous marriage. The child got along well with Les, some 6V2 years old at the time of the hearing. Linda and Les also got along well. Jay testified that he loved his son and wanted to see him at every opportunity.

Pat’s decision that the visitation arrangement was no longer reasonable was reached in August, 1974, after Les returned following the two-week vacation visit with Jay. Jay worked much of the time during the period and Les spent considerable time with Jay’s mother. According to Pat, when Les returned he had bruises on his back, buttocks and legs and scratches on his arms and hands. The child said a cat had scratched him and he said he hadn’t fallen. Pat asked Jay about the boy’s condition and he said he didn’t notice anything. When Les went on his next regular visitation, he again returned with scratches. Pat decided that Les wasn’t being watched properly and she “stopped reasonable visitation.” Jay attributed the scratches to a cat which slept with them. He said he saw no bruises. Mrs. Roark, Jay’s mother, said she never struck Les.

Shortly after the divorce, it was discovered that Les was anemic and he was placed on medication. According to Pat, when he would visit Jay, she would send his medication along, but often when Les and the medication returned home there was no evidence that any medication had been used. Jay said that whenever he brought medication, it was given as called for.

According to Pat and her witnesses, Les would return from visitation with Jay hungry, tired, nervous, inattentive and stuttering. Attempts by Jay to see the boy at school made him upset and nervous. According to Pat, when the visitation became limited, Les became “more at ease.”

As evidence that Jay’s conduct created an unsuitable moral environment for the child, appellant relied upon a series of occurrences. There was general agreement that the events cited did occur but the evidence was in dispute as to who was at fault and who was present at the time. A summary of the occurrences follows.

Sometime before the divorce Jay went to Pat’s mother’s house where Les was. Jay had a tape recorder and he attempted to induce Les to say that he wanted to go with Jay. Jay admitted the visit, but said he just wanted to record his son’s voice.

Again, shortly before the divorce, Pat and Les were in an auto, Pat noticed Jay following in his auto. She tried to elude him but could not do so and drove to a police station. Jay came up to her car, grabbed Les and said he was going to take him. Pat protested and a policeman interceded. Jay acknowledged the incident and that he took Les from the seat of Pat’s car but denied there was a “physical argument.”

At around the time of the divorce, Pat, her father and her uncle came to the Roark residence to get Pat’s and the boy’s belongings. An argument with Jay developed and Jay discharged a shotgun in the air. According to Pat she told Jay she wanted to go in the house and get some of her belongings. Jay told her that all of her things were on the front porch and she wasn’t going into the house. When Pat and her uncle insisted, Jay fired the gun. According to Jay, he fired the gun when Pat’s father insisted he was going into the house after Jay told him he didn’t want him in the house. The police were called in connection with this incident.

Pat testified to Jay’s coming to her place of employment at a grocery store and threatening her. Jay said he went to the store in order to talk to Pat about a reconciliation.

According to Bud Harvey whom Pat married in February, 1973, Jay accompanied by Les came to the store where Bud worked in the summer of 1972 and Jay threatened him. Jay said that he was in the store buying groceries and Les wanted to say hello to Bud and no threats were made.

Jay acknowledged that, in the summer of 1972, he went to Bud’s apartment. Bud was not there but his roommate was and Jay asked him whether or not Pat spent the weekend there with Bud. Les was along but according to Jay was out in the hall at the time of the conversation.

Again in the summer of 1972, a problem arose when Jay arrived on a motorcycle to take Les on the visitation.

On Christmas Day, 1972, a difference arose about the time for Jay to return Les to his mother. According to Jay, he took Les to Pat’s and when she wasn’t there went to Pat’s mother’s and didn’t find anyone. He then went to Pat’s uncle Gus Dobbelaire. According to Jay, Gus invited him in and he asked Gus to get hold of Pat and tell her that if she was not home shortly, he would take Les home and return him the next morning. According to Jay an argument developed and Gus hit him and kneed him and threw him out the door. According to Gus, Jay just walked into the house. An argument developed and Gus got mad, “took a swing at him and throwed him out the door.”

According to Pat’s mother, in March (sic) 1973, Linda was driving an ice cream truck and she and Jay would come past her house, stop and ring the truck bell five or ten minutes, trying to lure Les outside. She also testified to harassing calls and visits from Jay and his mother.

In the summer of 1974, Jay and Linda separated for about 60 days. According to Jay, the separation was the result of the problem about Les’s visits. During the separation, Jay, with Les along, took a woman to a drive-in movie. According to Jay, the woman was an old friend and the movie was all there was to it, but he could not recall her name. There was also testimony regarding an encounter between Jay and Linda’s ex-husband at which Jay displayed a pistol. Jay said the pistol was unloaded. He was uncertain as to whether Les was present. There was also evidence that, during the separation, Jay and Linda became involved in a situation which resulted in cross-complaints by them charging the other with peace disturbance. There was also a charge that Jay took Linda’s money on this occasion.

In August and September, 1974, Les was going to a parochial school in Liberty. Jay came to the school several times to see him. The visits made Les upset and nervous.

On the necessity for increased support, Pat testified that Les’s health problem arose after the divorce and required medical expenditures of $14 to $18 every six to eight weeks. She also testified that the cost of the parochial school education was $70 per year plus $20 per month bus fare. Pat testified that she worked as a checker at a supermarket. She was earning $175 per week at the time of the divorce and $128 to $130 per week at the time of the hearing. Pat was 26 years old at that time.

At the conclusion of the hearing the court sustained the motion to modify as to visitation. He granted Jay the right to have the child between 6:00 P.M. Friday and 6:00 P.M. Sunday on alternate weekends, on alternate holidays and for two weeks each summer. On this issue the trial court stated:

“As to the visitation, there are some matters which the parties need to consider in this regard. First, is to the child’s nervousness, sullenness, stuttering, not speaking, all of the other matters that came out concerning his actions following visitation. I think after hearing this evidence today and observing both of the parties, that both parties can feel directly responsible for this condition in their child. It appears to the court you have both, especially you Mrs. Harvey, lost sight of the fact that this child is entitled to know its father and be with its father. Your comment that you wanted to live as a family with your son demonstrates that. You have lost sight of the fact that your former husband is a part of your son’s family; that your son now has two families and your family is only one of them. You will never be able to live with your son as a complete family to the exclusion of his father, any more than the father will be able to have his son to the exclusion of you as his mother. This child has two families now. It is necessary that the child have a good relationship with both families and it is the duty of the court to see that relationship does exist.

“Many times I think it has been proven that a child is upset at going with a father for visitation and in returning because of anxiety concerning the attitude of his mother toward his visitation and toward his father. It is clear from the evidence I have heard here that that feeling is reflected in your son’s attitude and that you are not helping your son by continuing that attitude.”

On this appeal, appellant contends that the trial court’s visitation decree is not supported by substantial credible evidence, asserting that there is substantial evidence that respondent made misstatements of truth on substantial matters, that respondent has engaged in a persistent pattern of neglect of the child’s welfare during visitation and that he has engaged in a course of conduct that creates an unsuitable moral environment for the child.

Upon this review, “ * * * the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo. banc 1976).

In this case the initial proposition is that respondent as the parent not having custody of the child is entitled to visitation rights unless it is shown that visitation would endanger the child’s physical health or impair his emotional development. His visitational rights may be restricted only upon such a showing. § 452.400, RSMo 1975 Supp. Given the nature of respondent’s right, the appellant here has not demonstrated that the trial court’s conclusion was not supported by the evidence or that it was against the weight of the evidence.

The fact that there is evidence in the record which might have supported a different conclusion does not demonstrate that the decree is contrary to the weight of the evidence. The trial court had the opportunity to see and hear the parties. The court was not impressed by appellant’s evidence of Les’s physical condition upon his return from visitation. His conclusion that complaints of emotional upsets might well have been attributable to stress attendant upon the differences between the parents is not to be ignored. The isolated instances of claimed misconduct did not compel the conclusion that further visitation would impair the child’s emotional development. Some of the instances had occurred prior to the divorce. In spite of this appellant was at that time agreeable to the visitation arrangements incorporated in the modification of the decree. The trial court considered the incident evidence of immaturity and not such flagrant and vulgar behavior as would call for restriction of visitation rights. Review of this record does not produce the firm belief that the trial court’s conclusions on these matters were wrong.

Appellant argues that respondent’s lack of veracity appeared at the hearing and that for this reason his testimony should have been liberally discounted. Appellant says that at his deposition four months before the trial, respondent said he did not recall the incident involving Linda’s ex-husband, at which respondent displayed a weapon. Shortly before the trial, he amended his answer to say that he recalled the incident, but that Les wasn’t present. At the trial, he recalled the incident but did not recall whether or not Les was present. Appellant points further to respondent’s testimony that the woman who accompanied him to the drive-in movie with Les along was an “old friend,” but that he was unable to recall her name.

These matters were for consideration by the trial court as bearing upon respondent’s credibility, but, neither standing alone nor considered with the other evidence, did they call for denial of respondent’s motion to modify. The case of McC. v. McC., 501 S.W.2d 539 (Mo.App.1973), cited by appellant, involved a charge of perjury in a custody proceeding. In that case, the court considered the matter as it related to credibility of the custodial parent but in no manner indicated that the matter was of major significance on the right to custody.

Cases such as this involve essentially factual considerations and citations of authority are generally not helpful. There is no necessity to distinguish each of the cases relied upon by appellant. It is sufficient to say that she has cited no case involving restriction of rights of visitation.

There has been no demonstration here that the order appealed from was not made by the court below in the best interest of the child and it should, therefore, not be disturbed. Asbell v. Asbell, 430 S.W.2d 436 (Mo.App.1968).

Appellant complains of error in the trial court’s limiting her cross-examination of respondent concerning the change in his deposition testimony and his inconsistent trial testimony regarding the confrontation with Linda’s former husband. She also complains that the trial court refused to permit cross-examination of respondent about whether or not he was arrested in connection with some of the incidents relied upon to evidence respondent’s lack of fitness to associate with his child.

In neither case was there any offer of proof. On the inquiry concerning the deposition answer, the court’s refusal to permit further cross-examination was based upon his conclusion that there was no conflict which would be impeaching. The deposition has not been filed here and there is no basis for this court’s concluding that the ruling was erroneous.

On the arrests, the trial court informed counsel that he was concerned with the circumstances of the situation, not whether it resulted in an arrest. In view of the inconclusiveness of evidence of arrest, this ruling was not error.

Appellant contends that the trial court erred in concluding that there was no evidence of change in circumstances which warranted an increase in the support payment. Appellant points to her evidence of the cost of education and medical care for the child which arose after the divorce and were not considered in the amount awarded at that time.

The trial court’s ruling was based upon the absence of evidence of respondent’s ability to pay an increased allowance. There was evidence that his daily pay was higher than at the time of the divorce, but, as the court pointed out, there was evidence that he was working fewer days. Under this state of the record, the trial court cannot be said to have abused its discretion. Papenberg v. Papenberg, 289 S.W.2d 468, 470[3] (Mo.App.1956).

Judgment affirmed.

All concur.


text:
    Betty J. KERBY (Cole), Appellant, v. Dayton KERBY, Respondent.
    No. 27962.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Michael J. Thompson, Charles D. Wilson, James L. Muller, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of motion to modify divorce decree by increasing alimony payable to wife.

Dayton Kerby and Betty J. Cole were married July 27, 1957. In the wife’s petition for divorce, which included a prayer for alimony, the Jackson County Circuit Court on September 17, 1973, entered a decree of divorce which contained the following language:

“It is further ordered and adjudged by the Court that defendant pay to plaintiff, as alimony, the sum of One Dollar ($1.00) per year, the first payment in the sum of One Dollar ($1.00) to be due and payable this 17th day of September, 1973, and a like sum of One Dollar ($1.00) to be due and payable on the 17th day of September of each and every year hereafter until further order of the Court, and in default of one or more payments, execution issue therefor.

“Now property settlement agreement is approved by the Court and leave is granted plaintiff to withdraw said agreement.”

By the terms of the Property Settlement Agreement, also dated September 17, 1973, the husband agreed that certain personal property should be delivered to the wife; that the wife should receive a 1966 Mustang automobile, with the husband paying an outstanding loan against it of an unstated amount; that the husband would pay the wife’s attorney’s fees of $250 and outstanding doctor bills of $175.00.

Paragraph 5 of the agreement provided:

“Alimony. That Husband agrees to pay Wife the sume (sic) of One Dollar ($1.00) per year as annual alimony.”

The agreement further provided for the relinquishment by each of any marital interest in property of the other. It provided for the execution of necessary papers to effectuate the agreement and recited that the parties entered into it of their own volition upon the independent advice of counsel. It also authorized either party to submit the agreement to the court for its approval and authorized the court to incorporate the agreement in its decree.

On January 2, 1975, Betty J. Cole filed a motion in the Jackson County Circuit Court to modify the decree, alleging that she was in poor physical condition, suffering from epilepsy and a broken back, and that she is unable to keep up with the mounting bills for medical expenses which she expected to continue indefinitely. She prayed that Dayton Kerby be required to pay her $15 per week in maintenance.

When the matter came on for hearing, the movant testified to the changed condition based upon her physical disability which prevented her from working, with attendant medical expenses.

Dayton was not represented by counsel. At the suggestion of the trial judge, the Property Settlement Agreement was produced and offered in evidence. Thereupon, the trial judge concluded that Dayton’s obligation was to pay contractual alimony at the rate of $1.00 per year and that such obligation was not subject to modification by the court. The motion to modify was overruled. This appeal followed.

Appellant here contends that the alimony which she had been awarded in the divorce decree was statutory alimony which the parties and the court intended should be modifiable upon a showing of change of circumstances.

Whether or not when parties in anticipation of a divorce enter into an agreement for the settlement of their property rights, including the wife’s right to future maintenance payments from the husband, and the agreement is presented to and approved by the court which by its decree grants the maintenance rights agreed to, the alimony then awarded is contractual or statutory, with the different characteristics attendant upon the nature of the right, depends fundamentally upon the intention of the parties. LaFountain v. LaFountain, 523 S.W.2d 847 (Mo.App.1975); Nelson v. Nelson, 516 S.W.2d 574, 577[3] (Mo.App.1974); Goulding v. Goulding, 497 S.W.2d 842, 845[4] (Mo.App.1973). Nelson v. Nelson, supra, contains a detailed analysis of many cases which have considered the problem since the decision in North v. North, 339 Mo. 1226, 100 S.W.2d 582 (1936), recognized the right of a husband and wife upon separation to settle contractually all of their property rights, including alimony.

The agreement here involved contains some indicia which have been considered significant in previous cases in a court’s conclusion that the parties intended a contractual basis for alimony payments. For example, the agreement here purports to settle all of the parties’ property rights. See Nelson v. Nelson, supra; LaFountain v. LaFountain, supra. The agreement is entitled “Property Settlement Agreement.” The agreement refers to alimony in contractual terms — “agrees to pay.” LaFoun-tain v. LaFountain, supra.

However, this ease is distinguishable from any of its predecessors in that the amount of alimony agreed upon was a nominal amount of $1.00 per year. Why would the parties have made such an agreement? Obviously, insofar as the husband was concerned, had the agreement and the subsequent decree been silent upon the subject of alimony, the right of the wife to make demand for such payment in the future would have been precluded. Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, 924[8] (1942). There is no reason to believe that the parties intended to benefit or protect him by the agreement.

Insofar as the wife was concerned, the nominal $1.00 per year alimony would have been beneficial only if it served to make available to her the right to seek an increased award because of changed circumstances. See Tremayne, “Separation Agreements,” Missouri Family Law (1970) § 9.10, p. 151.

In the circumstances of this case, the only reasonable construction of the Property Settlement Agreement insofar as it pertains to alimony is that the parties intended the agreement “to accomplish its ordinary purpose as merely advisory to the court.” (Nelson v. Nelson, supra, at 577), and the decree represents an award of statutory alimony. Although such language has been found of varying significance (compare Tysdal v. Tysdal, 235 S.W.2d 124 (Mo.App.1950), and Gunnerson v. Gunnerson, 379 S.W.2d 861 (Mo.App.1964); see also LaFountain v. LaFountain, supra), it is worthy of note that the decree in this case called for $1.00 per year alimony “ ‘until the further order of the court’ ” and called for execution to issue upon default. No objection was raised to the decree’s employment of these indicia of statutory alimony. Tysdal v. Tysdal, supra.

The trial court erred in precluding appellant’s motion on the grounds that her right to alimony was contractual and not subject to modification. The cause is remanded for determination of appellant’s motion on its merits.

Reversed and remanded.

All concur.