author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Carlyn J. MORAN and James J. Moran, Respondents, v. BOARD OF DIRECTORS, SCHOOL DISTRICT OF KANSAS CITY, Missouri, Appellants.
    No. 30064.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Edward T. Matheny, Jr., Shirley Ward Keeler, Kansas City, for appellants.
    John J. Kitchin, Lawrence M. Maher, Kansas City, for respondents.
    Before HIGGINS, Special Judge, Presiding, and SWOFFORD, C. J., and WEL-BORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which reversed assignment by the Kansas City School District of Karlin Moran, a handicapped child, for special education purposes, pursuant to ¶¶ 162.670, et seq., RSMo Cum.Supp.1978; and which awarded her parents $6,477 for services for the child at a private institution. The question is whether the court exceeded the scope of judicial review of the District’s administrative decisions. Reversed.

Karlin Moran, born June 27, 1962, was enrolled in first grade at J. C. Nichols Elementary School September, 1969. After subjective evaluation by her teacher and school principal, the principal recommended to the District’s Department of Special Education that she be considered for placement in a special class for educable mentally retarded students. A team of evaluators and psychiatrists reviewed her record, interviewed her, and administered her the Stanford-Binet Intelligence Test. Her I.Q. test of January 28, 1970, showed her in the range of educable mentally retarded persons, and it and other evaluations resulted in her placement in January, 1971, in a special education class for mentally handicapped children at Marlborough Elementary School. While at Marlborough, upon suggestion of her teacher, Karlin was sent by her parents to Menorah Medical Center for further evaluation and assistance. Reports from Menorah were consistent with the records and evaluations of the District with respect to her intelligence level and learning problems, and indicated progress at a rate consistent with expectations.

¶¶ 162.670, et seq., RSMo, were enacted in 1973, “to provide or to require public schools to provide to all handicapped and severely handicapped children * * * special educational services sufficient to meet the needs and maximize the capabilities of handicapped and severely handicapped children. * * * To the maximum extent practicable, handicapped and severely handicapped children shall he educated along with children who do not have handicaps and shall attend regular classes. Impediments to learning and to the normal functioning of such children in the regular school environment shall be overcome whenever practicable by the provision of special aids and services rather than by separate schooling for the handicapped”. Effective July 1, 1974, “the responsible * * school district * * * shall notify * * every parent or guardian of every child diagnosed, evaluated, reevaluated or assigned under the provisions of sections 162.-670 to 162.995 of the results of any diagnosis, evaluation or reevaluation made pursuant to the terms of sections 162.670 to 162.-995 and of the recommended assignment, change in assignment or denial of assignment of the child to. a class or program provided under sections 162.670 to 162.995”.

Prior to July 1, 1974, the Kansas City School District reevaluated its educable mentally retarded students every three years and oftener if requested by teacher or parent. The reevaluation consisted of individual testing through Dr. Verburg’s office together with recommendations and evaluations of teachers. Karlin was reevaluated under this practice February 23, 1973, again found in the educable mentally retarded range, and continued at Marlborough.

In early 1974, Mrs. Moran and Miss Farrell discussed Karlin’s situation, particularly with respect to the possibility of moving Karlin from Marlborough. Miss Farrell advised that the District had no other program for Karlin on the basis of what was known about her, but could possibly move her into another program for the mentally handicapped at a different location. In August, 1974, after the new Special Education Services Act became effective, Karlin’s parents were notified by letter that Karlin would be continued at Marlborough. There was no request for a hearing or other challenge by Mr. and Mrs. Moran with respect to this placement.

On October 14, 1974, believing themselves advised by Karlin’s teachers to look elsewhere for help, Mr. and Mrs. Moran removed Karlin from Marlborough and enrolled her in the Joan Davis School for Special Education, a private institution, whose program they felt better suited their daughter. On November 4, 1974, Mr. Moran wrote to Miss Farrell to request “tuition assistance” for Karlin at Joan Davis where tuition was $254 per month. Miss Farrell responded December 2, 1974, that “before any assessment may be made of the possibility of school district assumption of tuition expense for Karlin, we must have evaluative material regarding her educational needs”; and that upon receipt of any such records “we will review Karlin’s needs as to an appropriate educational program and de-cisión will be taken as to placement”. Kar-lin continued at Joan Davis through the 1974-1975 term with progress at a level similar to her progress at Marlborough. Mr. Moran renewed his request for assistance by letter of February 7, 1975.

On August 21, 1975, Miss Farrell wrote Mr. Moran to confirm a recent telephone conversation with respect to Karlin’s placement for the 1975-1976 term, and to review recommendations made by the District’s Special Education Placement Committee. The recommendation of the Committee, after reviewing all records on Karlin, including those furnished by Mr. and Mrs. Moran, was that “Karlin could benefit from our Special Education Services provided at Bingham Junior High School, the junior high school of your district. Karlin * * would be given supportive help also by our Learning Disabilities teacher * * * and would be programmed into some of the Fine Arts, Practical Arts, and Physical Education classes offered to all students at Bingham * * The letter of assignment of Karlin to Bingham was enclosed. It recited the evaluations and assignment, and notified the parents of their entitlement “to a hearing on the action advised of in this letter”.

On August 25, 1975, Mr. Moran wrote Miss Farrell to request a hearing with her and her staff, and expressed his desire to “appeal this action” and to keep Karlin at Joan Davis.

On September 24, 1975, Mr. Richard Norris, Principal at Bingham, Mrs. Betty Arnol-dy of the Special Education Placement Committee, and Mr. Moran met at Bingham School to discuss the program previously proposed for Karlin. The District Administration thought of this meeting as an informal statutory hearing; Mr. Moran believed himself informed that this was not a “hearing”. In either event, Karlin’s program was discussed, and Mr. Moran was informed that the program evolved from Karlin’s records. The District’s position was that the Bingham assignment, including a learning disabilities program, rendered improvident any consideration of tuition for Karlin at Joan Davis School. Mr. Moran furnished additional materials by letter of September 26,1975. On October 10,1975, Mr. and Mrs. Moran were advised by letter from Marjory Farrell that the District’s conclusions from the discussion of September 25,1975, was to have her enrolled in the program at Bing-ham.

On November 22,1975, Mr. and Mrs. Moran, through their attorney, requested the hearing provided by law. This request was not timely, due, it seems, to the confusion surrounding the nature of the meeting of September 24, 1975. In any event, the District accorded the statutory hearing on the assignment to Bingham made by the District for Karlin for the school year 1975-1976. The hearing took place January 6, 1976, before Mr. Nathan Roitman, an attorney, Hearing Officer, Department of Public Service. Mr. and Mrs. Moran were present with counsel; Dr. Clyde Baer, specialist in Research and Program Evaluation, presented the case for the District. Witnesses were sworn; testimony was taken and transcribed.

The foregoing was developed from the testimony of witnesses. James Moran, Car-lyn June Moran, Dr. William Norton, and Michael Kirkpatrick, for the parents; Marjory Farrell, Marshan Field, Betty Arnoldy, Dr. Wallace Verburg, Richard Norris, and Dr. Elizabeth Weimer, for the District; and exhibits consisting of correspondence reports, and test results. Additional evidence follows.

William D. Norton, Ph.D., was a staff psychologist at Joan Davis School. He evaluated Karlin as working about a year below grade in reading and three or four years below grade in arithmetic and comprehension. He was familiar with her scores on several psychological tests, and found her in the category, Educable Mentally Retarded. He recommended prescriptive teaching, and felt she would profit from spending part of her academic day in a normal classroom.

Michael Kirkpatrick was the Executive Director of the Joan Davis School. At Joan Davis all students are in special education without exposure to “normal” students. One element in prescriptive planning available to Karlin at Joan Davis and not available in the District program was psychotherapy. He was of the opinion Karlin might be threatened by contact with normal children in regular classes.

Marshan Fields, a member of the District’s Special Education Diagnostic Team and a teacher of educable mentally retarded students reviewed Karlin’s school and Miss Wedlan’s letter and felt Karlin had responded to the program provided her at Marlborough.

Betty Arnoldy, also a member of the District’s Special Education Diagnostic Team, was a certified psychometrist and had worked at Menorah Medical Center and in the Department of Children’s Learning Disabilities, doing psychological and educational testing. She studied evaluations in Kar-lin’s file and found she was an educable mentally retarded child in need of a special education class. In her opinion, the program at Bingham was appropriate for her. She was not able to say what help Karlin might get with her hearing problem.

Dr. Wallace Verburg stated that his department’s testing and Dr. Norton’s tests all place Karlin in the middle of the educable mentally retarded count. He found nothing in Dr. Norton’s reports to contradict his own findings. He found Karlin’s visual and auditory problems to be secondary and incidental to her retardation. He attributed her suggested emotional disorders to her adolescence. He disputed Miss Wedlan’s view of learning disability. The most appropriate program in his view was “to have her with a group where she is instructed in accordance with her ability level. That could be in a class for the mentally retarded as those classes are conceived * * * this is better done in a public school situation than apart from the public school where all of the children are * * * of that similar handicapped condition”.

Richard Norris explained that when a child is enrolled in the EMR program at Bingham, the administration meets with the counselor, parents and teachers to determine to what extent it is best to “mainstream” the individual student. “* * * most of the students in the mentally handicapped room now are having an hour of physical activity a day. They are working in shops, homemaking rooms, music, art rooms, some * * * in academic classrooms where they are able to handle it. We mainstream whenever we can”. In his judgment the District program at Bingham was compatible with Karlin’s needs.

Elizabeth Weimer, Ph.D., advised that the District has personnel in its Special Education Department to assist students with auditory and visual perception problems. She had served on the Placement Committee in Karlin’s case and she agreed that Karlin’s major problem was mental retardation with other problems secondary and that the Bingham program was appropriate for Karlin.

The Hearing Officer framed the agreed issues:

(1) Is Karlin Moran, in fact, a handicapped child as defined by Missouri Statute 162.675? (Handicapped Children, children under the age of twenty-one years who have not completed an approved high school program and who, because of mental, physical, emotional or learning problems, require special educational services in order to develop to their maximum capacity”).
(2) Is there a clear recommendation for remediation?
(3) Has the School District of Kansas City, Missouri the capabilities for carrying out the recommendations?
(4) If not, is there present in Kansas City a private agency with the capability?

The Hearing Officer found:

(1) Karlin Moran is in fact a child handicapped under Missouri Statute 162.-675 and is eligible for Special Education Services pursuant to Missouri Statute 162.680.
(2) The Joan Davis School for Special Education offers little that is unique in Special Education services for this child.
(3) That the Joan Davis School offers to Karlin Moran one service only, not available in the schools of the Kansas City, Missouri School District viz the services of a professional staff psychologist.
(4) That this service is secondary to Kar-lin Moran’s handicap and disability, and serves no crucial educational purposes.
(5) That the crux of the handicap applicable to Karlin is her mental retardation.
(6) That all evaluations are in basic agreement in regard educational needs of Karlin.
(7) That the School District of Kansas City, Missouri has the capabilities for implementing the recommendations of all evaluations and diagnoses.

The Hearing Officer recommended denial of the Joan Davis placement and attendant tuition reimbursement sought by Mr. and Mrs. Moran, and approval of the placement at Bingham made by the District for Karlin Moran. The Board of Directors of the School District accepted such recommendation February 3,1976. Mr. and Mrs. Moran petitioned for administrative review pursuant to ¶¶ 162.965, 536.100, 536.110 RSMo, and Rules 100.03 and 100.04, March 2, 1976. The case, designated CV 76-1326, remained undecided as of August, 1976, and with the question of appropriate placement for Kar-lin yet unresolved, the District informed Mr. and Mrs. Moran of its view of Karlin’s placement at Bingham for the 1976-1977 school year.

Karlin’s assignment for 1976-1977 was made in first instance by the Placement Committee on the material in her file as of the Spring, 1976. The letter of assignment to the program at Bingham was sent to Mr. and Mrs. Moran August 27, 1976, over the signature of Marjory Farrell. On August 28, 1976, Mr. Moran wrote to Miss Farrell and requested a hearing. On September 3, 1976, Miss Farrell wrote Mr. Moran and advised of an informal conference to take place September 10,1976 at Bingham. The conference failed of agreement, Mr. and Mrs. Moran requested the statutory hearing, and it was set for October 21, 1976, before Mr. Roitman, directed at Karlin’s 1976-1977 placement at Bingham.

Mr. and Mrs. Moran were present with counsel; the District’s case was presented by Basil North, attorney for the Department of Special Education. Witnesses were sworn; testimony was taken and transcribed. Mr. and Mrs. Moran presented witnesses Bobbie Wedlan, Mr. Moran and Dr. Norton, and a letter from Miss Farrell listing the I.Q. of children placed under contract between the District and the Joan Davis School. The District presented witnesses Marjory Farrell, Barbara Hankinson, Betty Amoldy, Dr. Wallace A. Verburg, Richard Norris and Betty Weimer, and correspondence between the parties and other materials in the District’s files relating to Karlin Moran. It was agreed that the Hearing Officer would also consider all evidence adduced at the January 6, 1976, hearing. New evidence follows.

Bobbie Wedlan, Karlin’s teacher in 1971-1972, was now employed by the Kansas City Lyric Theater. She remembered Karlin not only as possessed of an I.Q. which placed her in EMR, but also as emotionally anxious and with auditory disabilities and perceptual problems. Many of her students had “multiple problems” and 20 children in her classroom had an adverse effect on her ability to deal with them. She discussed Karlin with her parents in 1971-1972, and maintained communication with them the following year when Sandy Reed was her teacher. She suggested they look elsewhere for a program for Karlin because, in her view, the District did not, at the time she was her teacher, have appropriate services for Karlin. She knew nothing of the circumstances of Karlin’s assignments for 1975-1976 and 1976-1977.

James Moran voiced his disagreement with his daughter’s placement at Bingham. He continued in his desire to keep her enrolled at Joan Davis and in his wish to have the District pay the cost. He did not consider exposure to regular classes in the program at Bingham to be important.

Dr. William Norton, now a psychologist in private practice, and a consultant at Joan Davis, reiterated Karlin’s EMR rating. He felt that since coming to Joan Davis she had become able to interact with students and enjoy herself. He provided therapeutic counseling sessions for Karlin’s class at Joan Davis; he had no individual sessions with her. He would in some instances go with the idea of “mainstreaming”, but remained a proponent of self contained classrooms for special education. He described the ratio of two teachers to ten pupils at Joan Davis, and stated eighteen district children at Joan Davis were receiving financial assistance from the District.

Marjory Farrell stated that children in the District’s junior high EMR program have a flexible schedule to suit each child’s need and abilities. Participation in regular classes, “mainstreaming”, occurs, and should occur as children are ready for it. She recognized that some handicapped children in the District are referred to Joan Davis under contract. Such are children “who have no intensity and/or a multiplicity of problems that would indicate from our information that we would not be able to adequately provide for the child in one of our special educational programs”. Eighteen district children were presently under contract to Joan Davis. The District’s latest assignment of Karlin Moran to Bingham was based on records including those from Joan Davis furnished by Mr. Moran. The Committee felt its initial decision to be correct. Miss Farrell felt that Karlin’s handicap was mental retardation with some minimal learning disability.

Barbara Hankinson was Chairman of the District’s Special Education Placement Committee which reviewed Karlin’s assignment for the 1976-1977 school year. In addition to Mrs. Hankinson, a specialist in mental handicaps, others on the Committee were Mrs. Weimer, a learning disabilities specialist, Ron Wheeler of the Psychological Services Department,-and Virgil Blaine, a Home-School Coordinator. The Committee reviewed the original referral on Karlin for consideration as a special education student, report of the individual psychological testing in 1971 and 1973, evaluation from Menorah Hospital of July 17, 1972, and Joan Davis report of May, 1976. Such materials indicated a history of problems in regular classes and need of special education placement. Her tests showed she functioned in the range of “mentally handicapped” with some indication of auditory perception problems. The Committee’s conclusion was placement in a class for educable mentally handicapped with assistance from a learning disabilities teacher. She did not appear to have emotional problems beyond the District’s capacity to cope. The Committee was not persuaded by the Joan Davis reports that she should be placed in Joan Davis.

Betty Arnoldy, after reviewing previous materials and Karlin’s 1975-1976 year at Joan Davis, felt as did her diagnostic team, that placement at Bingham was best for Karlin.

Dr. Wallace Verburg described individual testing of Karlin Moran done under his supervision and direction. He compared these tests to those done by Menorah and Dr. Norton and concluded that “Educable mentally retarded scores of this nature, repeated scores by different examiners, at different times, years apart, scores this consistent would lead one to believe that this is truly a permanent condition that is not remedial”. According to all evaluations, Karlin’s records showed her problem as mental retardation, and that the District has programs to meet her need. He felt mainstreaming was of some value at her age, particularly in social development. He agreed with the decision of the diagnostic team and the Placement Committee that an appropriate program was available for Kar-lin at Bingham.

Richard Norris stated that Bingham houses one class of twenty mentally handicapped students, and it cannot, due to state regulation, exceed that number. Two coun-sellors work in the program, together with a family services volunteer, and a speech correctionist available one day a week. A learning disabled teacher is also available full time. The EMR classroom is self contained. Additional instruction in music, art, physical education, homemaking and shop is available to qualified individuals under “mainstreaming” guidelines. Some work may be given in regular classes.

Betty Weimer remained in agreement with Karlin’s assignment to Bingham, and believed that any handicaps in the nature of learning disability would be treated there due to presence of the learning disabilities teacher.

The Hearing Officer framed the same issues as in the January, 1976 hearing, and found:

(1) That Karlin Moran, complainant's daughter through referral by a school principal, her teacher, and the results of a Stanford-Binet test administered by a school district psychometrist was found to be a handicapped child under Missouri Statute 162.675. In accordance therewith she was assigned to the Special Education program for the EMR at the Marlborough Elementary School.
(2) That after examining reports of evaluations, from the Menorah Medical Center, the evaluation and progress report from the Joan Davis School, the Placement Committee of the Department of Special Education of the Kansas City School District determined there was no disagreement, basically, in the evaluation of the Menorah Medical Center, the Joan Davis School and that of the Kansas City School District.
(3) That the Placement Committee supports the recommendation of Bing-ham Junior High School as an appropriate school for the education of the mentally retarded, and appropriate for Karlin Moran, with teachers certified by the State of Missouri to teach handicapped, and with facilities and equipment consonant with a quality program.
(4) That expectations for Karlin’s educational development is in direct ratio of her Intelligence Quotient to that of children in the normal range of intelligence. With this standard as a criterion Karlin was performing up to expectations in the Kansas City public schools and is performing up to expectations at the Joan Davis School.
(5) That there is no evidence of emotional trauma in Karlin, that there is little to fear if she must change schools at this stage of her development.
(6) That there is little evidence of cerebral dysfunction as alleged by complainant, consequently learning disability is not a handicap connected with the mental retardation of Kar-lin; that learning disability is not part of the solution to mental retardation; that if learning disability is diagnosed as a problem for Karlin help is available at Bingham Junior High School. (Learning disability was defined as applying to those children within the normal range of intelligence, and the child is not achieving his potential).
(7) That Karlin is reading, within the range of predictions and expectations.
(8) That Karlin would profit by attendance in a Special Education facility of the Kansas City public schools where she would have the advantage of classroom work in hetergeneous groups.

The Hearing Officer again recommended denial of relief sought by Mr. and Mrs. Moran and approval of their daughter’s placement at Bingham Junior High School. The Hearing Officer’s findings and recommendation were adopted by the Board of Directors of the School District November 15, 1976. Mr. and Mrs. Moran again petitioned for administrative review, the petition was designated CV76-5034, and on January 6, 1977, same was consolidated with CV76-1326. The consolidated case was decided January 26, 1978, by judgment which favored petitioners, Carlyn J. and James J. Moran, and awarded them the sum $6,477.

Appellant District contends the court exceeded the scope of judicial review of the decision of an administrative agency whose findings and decision were supported by competent and substantial evidence on the record. Appellant contends also that the court exceeded its jurisdiction by substituting its own judgment for that of the District on a matter vested by law in the discretion of the District; and that conclusions of law of the court are based on misinterpretations of the law and unsupported factual determinations.

Respondents would support the court in its separate findings and judgment on the theory that this is a case in which the administrative agency erroneously interpreted and applied the law, and the court was not bound by such determination. They assert also that the agency acted arbitrarily and capriciously in its evaluation and assignment of Karlin Moran, in failing to act timely, and in failing to accord her the assignment made for others similarly situated.

As recognized by the parties, the inquiry of the court in review of the District’s assignments of Karlin is governed and limited by Rule 100.07 (¶ 536.140 RSMo). In interpretation of this authority, it has been said, Moore v. Bd. of Ed. of Sp. School Dist. etc., 547 S.W.2d 188, 191 (1-4) (Mo.App.1977):

“The reviewing court may only determine whether the board could reasonably have made its findings and reached its result of whether the decision was clearly contrary to the overwhelming weight of the evidence. * * * The court may not substitute its judgment on the evidence and may not set aside the board’s decision unless it is not supported by competent and substantial evidence on the whole record. In addition, the evidence must be considered in the light most favorable to the board’s decision, together with all reasonable inferences which support it.
If the evidence before an administrative body would warrant either of two opposed findings the reviewing court is bound by the administrative determination and it is irrelevant that there is supportive evidence for the contrary finding[s]. * * * Also the determination of the credibility of the witnesses is a function of the administrative tribunal”.

See also Bd. of Education, Mt. Vernon Schools etc. v. Shank, 542 S.W.2d 779, 781-782 (206) (banc 1976); Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, 628 (banc 1953); Aubuchon v. Gasconade County R-1 School District, 541 S.W.2d 322, 326 (Mo.App.1976). It is only where the review does not involve an exercise of administrative discretion, but involves only the application by the agency of the law to the facts, that the court may weigh the evidence for itself and determine the facts accordingly. Rule 100.07(c); Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (banc 1974); Central Bank of Clayton v. State Bank Bd. of Mo., 509 S.W.2d 175 (Mo.App.1974); Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798 (Mo.1973).

The statement and evidence demonstrates a case where the administrative agency could reasonably have made the indicated findings and reached its decision with respect to assignment of Karlin Moran to its own program at Bingham Junior High School as opposed to paying tuition for her at a private institution. The testimony of Mr. and Mrs. Moran and witnesses for them in favor of their voluntary placement of Karlin at Joan Davis presented, at best, support for findings opposed to those made by the Board. The court was bound, however, by the findings made by the Board supported as demonstrated by the statement. Moore v. Bd. of Ed. of Sp. Sch. Dist., etc., supra.

Respondents argue that the court’s independent findings should be affirmed in that the District failed to meet notice and hearing requirements of ¶¶ 162.670 et seq., failed to provide the services to Karlin there mandated, and deprived Karlin of equal protection of the law in its refusal to assign her to Joan Davis.

There was some difficulty with respect to notice and time of the first hearing. It is not shown, however, how that affected Kar-lin’s interests adversely. A hearing on her placement for the year 1975-1976 was accorded, and a timely hearing was accorded on her placement for the year 1976-1977.

Both resulted in approval of assignments to Bingham Junior High School, and the evidence, as demonstrated by the statement, supports such assignments. Mr. and Mrs. Moran chose. to disagree with such assignments and voluntarily withdrew Kar-lin from Bingham and placed her at Joan Davis. Fortunately for Karlin, it appears that Joan Davis also provides adequately for her needs; and Mr. and Mrs. Moran are entitled to enroll their child in such an approved private school. They may not, however, cast the burden of their tuition at Joan Davis on the District on their disagreement and preference alone.

The argument that the District failed to provide services mandated by law for Kar-lin ignores the evidence in support of the Board’s findings and decisions.

The argument of denial of equal protection is also made in disregard of the evidence in support of Karlin’s assignments to Bingham. Both the law and the evidence recognize that evaluation and assignments of children for the purpose of ¶¶ 162.-670 et seq. are made to meet the needs of individual children; and the evidence shows the assignments made for Karlin to be consistent with the public policy of ¶ 162.670 et seq. Maintenance of other children at Joan Davis does not require the same assignment for Karlin where the evidence supports her assignment to Bingham.

Judgment reversed.

All concur.

      . The notice section. 162.945, was amended in 1977. to spec«v the manner of notice.

      . Dr. Wallace A. Verburg, head of Psychological Services in the Kansas City School District.

      . Marjory Farrell, District Coordinator, Special Education.

      . Bobbie Wedlan, Karlin’s teacher at Marlborough, 1971-1972, and Sandy Reed, her teacher in 1972-1973.

      .II 162.705 of the Art. provides that if no program for handicapped children is available to a school district, such district may contract with non-profit organization which have programs meeting the standards set by the State Board of Education.


source: Caselaw Access Project

author: CLARK, Judge.

license: Public Domain

text:
    Beverly FIELDS, Respondent, v. Wendell FIELDS, Appellant.
    No. KCD 30067.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      L. E. Atherton, Milan, for appellant.
    R. Max Humphreys, Trenton, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Wendell Fields appeals the judgment which dissolved his marriage to Beverly Fields and raises issues regarding designation and division of marital property by the trial court.

Wendell married Beverly, twenty years his junior, in 1961. Although children had previously been born to each and three additional children were born of this union, no questions of support or custody are raised and further reference to progeny of the parties is unnecessary.

The parties made their marital home on a farm comprising approximately 640 acres which Wendell had acquired by inheritance before the marriage. To this was added 110 acres of contiguous land purchased during the marriage. Also acquired was a residence in Chillicothe bought in 1967 and rented for income. Primary support to maintain the family was derived from farming operations. This had been Wendell’s occupation before the marriage. To some extent, Beverly assisted with work in the fields and operated vehicles and machinery as well as performing household duties.. She also worked at a food processing plant for wages from 1968 to 1972.

Wendell’s son of a former marriage died in 1969 and Wendell received benefits paid as proceeds from policies of insurance on the life of the son. The amount of insurance was not disclosed by the evidence. Wendell contended the insurance proceeds were used to purchase the 110-acre farm and a certificate of deposit in the amount of $5000.00. The record fails to disclose the title and registration of ownership of either.

Somewhat by chance, Beverly commenced breeding dogs and gradually developed a business in the breeding and sale of registered dogs which, during the years 1971 to 1976, had gross sales ranging from $8019.00 to $17,972.00 and net profits of $565.00 to $8360.00. At the date of separation, sixty dogs remained. Registration papers on the dogs were destroyed accidentally in a fire and the dogs were thereafter of doubtful value as those with whom the dogs were subsequently placed were unwilling to pay full consideration without documents of pedigree. Beverly did, from time to time before and after the separation, receive checks to apply on the sale prices for dogs delivered, but the amounts were not established by the evidence.

Separations of the parties occurred from time to time during the marriage on which occasions Beverly left the home to visit or reside elsewhere. She acknowledged marital misconduct with male friends during these interludes and also while still at home. Such was apparently a prime source of final estrangement when the parties separated for the last time December 11, 1976.

By a judgment entered October 31, 1977, the court ordered dissolution of the marriage, awarded custody of the children to Wendell and granted neither maintenance nor support. Purported disposition of property was covered by an order awarding “all property mentioned in the evidence” to Wendell except certain items set apart to Beverly. The assets assigned to her were the Chillicothe house, a certificate of deposit bearing her name, a pickup truck titled in her name and clothing and personal effects.

The judgment included no finding as to values of particular assets, no designation of which assets were marital property and which were non-marital property and no indication of the extent to which assets allotted to either spouse included non-marital property set apart as the separate property of that spouse. The judgment did, however, include a finding “[that] the net worth of the parties, including marital and non-marital property is approximately Two Hundred Thousand Dollars ($200,000.00) and that approximately one-half of that total is attributable to marital property accumulated over the period of the marriage.”

Wendell filed his motion for new trial which motion was overruled November 28, 1977 after hearing. No appeal was lodged from that order or from the October 31, 1977 judgment. On December 20, 1977, Beverly filed a “Motion To Correct Judgment Entry” alleging that the judgment of October 31, 1977 had inadvertently omitted an award to her of $15,000.00 cash. Such motion was taken up by the court on January 23, 1978 and upon a finding “that the Judgment Entry heretofore entered was erroneous and not showing that judgment was rendered against Respondent and in favor of Petitioner for the sum of Fifteen Thousand Dollars ($15,000.00) in addition to the other property set aside to Petitioner,” the court amended the prior judgment to award Beverly $15,000.00.

The entry of January 23, 1978 was made as a complete judgment incorporating all of the findings and orders of the earlier entry and differing only in the addition of the cash award to Beverly. As this appeal is taken pursuant to a special order of this court issued under Rule 81.07(a) and within six months of the rendition of the original judgment, it is unnecessary to decide, as to the identical provisions of both judgments, which is the subject of review on appellant’s points of error common to both entries. Initial inquiry must first be made, however, to evaluate the validity of the attempted correction nunc pro tunc adding the cash allowance of which appellant complains.

An entry of judgment may be corrected to remedy a clerical error or mistake which resulted in an entry that did not actually reflect the judgment rendered. Wiseman v. Lehmann, 464 S.W.2d 539 (Mo.App.1971). The entry correcting a clerical error cannot be made, however, unless supported by some writing in the record which shows the judgment as actually rendered. Van Noy v. Huston, 448 S.W.2d 622 (Mo.App.1969). A correcting entry may not be employed to correct judicial errors, mistakes or oversights nor may it be used to enter a different judgment even though the judgment rendered was not the judgment the judge intended. Van Noy v. Huston, supra. In case of doubt, the court may look to the entire record, including pleadings and process, to ascertain the judgment actually rendered as contrasted with the judgment entered. First Nat. Bk. of Collinsville v. Goldfarb, 527 S.W.2d 427 (Mo.App.1975).

Neither respondent’s motion nor the court’s order before us allege or refer to any writing, notation or memorandum relied on to support the amendment adding the award of $15,000.00 to Beverly. As the burden is on the party seeking correction to establish the true nature of the judgment rendered, City of Ferguson v. Nelson, 438 S.W.2d 249 (Mo.1969), absence of such basis in the record to support the corrective entry precludes according recognition to the additional cash award. Aronberg v. Aronberg, 316 S.W.2d 675 (Mo.App.1958). For purposes of this appeal, the judgment in the case will be that rendered October 31, 1977 and restated January 23, 1978, exclusive of the cash award to Beverly.

The judgment of October 31, 1977 purported to set aside to the parties “all property mentioned in the evidence,” a phrase which would encompass both marital and non-marital assets found by the court to be of approximately equal value. The decree does not identify which assets fall in either class nor does it state to which party or to both are the non-marital assets assigned because not subject to division by the court. Addition or deletion of the subsequent cash award to Beverly is immaterial to the fundamental question raised by this aspect of the judgment.

Wendell challenges the result as to property division in this case on two grounds, the second of which includes six sub-points. None preserves anything for appellate review as they fail to state wherein and why claim is made that the trial court erred. From consideration of the judgment entry as noted above, however, failure of the trial court to exhaust its jurisdiction appears to be the threshold issue. As this appeal would, in such event, be premature, the issue of property disposition must be considered sua sponte to determine if we have jurisdiction to review the judgment. Oasis Car Wash, Inc. v. First North City Bank, 558 S.W.2d 683 (Mo.App.1977).

Under the Dissolution of Marriage Act of 1973, the trial court is specifically charged with the duty to divide the marital property and to set apart to each spouse his property. Section 452.330, RSMo Supp. 1973. The purpose of the statute is to minimize necessity for recourse by the parties to subsequent litigation and to accomplish in the judgment dissolving the marriage a complete severance of unity of possession and title to property between the spouses. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977).

Quite obviously, division of marital property must be preceded by a finding of what assets constitute marital property. Property acquired by gift, bequest, devise or descent is non-marital property and is not subject to division by the court. Section 452.330, RSMo Supp.1973. The court must therefore make specific findings as to each asset or class of assets whether a particular item is marital property subject to division by the court or is non-marital property and is the property of a spouse individually. Schulz v. Schulz, 583 S.W.2d 735 (No. 39,408, handed down May 29, 1979 by Missouri Court of Appeals, Eastern District); Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977). In the division of marital property, one relevant factor to be considered by the court is the value and extent of other property possessed by either party. Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976); Section 452.330-1(2), RSMo Supp.1973. Allocation of non-marital property as the separate property of the spouse and the valuation of such property is therefore essential as a prelude to division of marital property in meeting the statutory requirement for a “just” division with due regard to all relevant factors. Corder v. Corder, supra.

The subject of contest in this case was the division of property. Neither party contested those portions of the judgment which declared the marriage to be irretrievably broken nor was any issue made as to the custody award of the children. As to the property, however, the court was confronted with conflicting evidence on the question of which assets were marital. The resolution of that controversy is determinative of authority and jurisdiction of the court to divide, and the succeeding issue of competing claims of the parties to those assets found to be marital and, hence subject to division.

Wendell relied on the facts of his acquisition of the 640-acre farm by inheritance prior to the marriage and the purchase of the 110 acres and a certificate of deposit with proceeds of insurance on the life of his son as the basis for exempting such assets from division as marital property. Beverly, however, contended that she had assumed loan obligations encumbering the farm and had contributed to the farming operation during some fifteen years of marriage, all of which justified some recompense to her for increase in the farm’s value. She further relied on the statutory presumption regarding assets acquired during the marriage to qualify the 110 acres and other property for division as marital property regardless of the source of funds.

The trial court was not well served either by the quantity or quality of evidence from the parties on issues of asset identity and value. Regardless of such deficiencies, however, the trial court was obligated to decide the controversy presented and specifically to announce which assets were non-marital and which were marital and to set apart item by item the allocation of non-marital property and the division of marital property. As the judgment was rendered, no decisions were made on these issues and it cannot be ascertained with specificity what assets were set apart to Wendell nor can it be determined what assets comprised the “approximately” one-half of net worth allotted to marital and one-half to non-marital property. In failing to render the judgment required, the trial court has not exhausted its jurisdiction. Anspach v. Anspach, supra.

Substantial tracts of real estate were involved in this case. Where real estate is affected by a dissolution decree either by setting apart non-marital property and thereby extinguishing one spouse’s claim through the marriage relationship or by division of marital property as equivalent to a conveyance, full legal descriptions must be included in the judgment. Such is necessary to the end that Section 452.330-5, RSMo Supp.1973 requiring filing of the decree in the office of recorder of deeds be effective in dispelling future questions as to land titles.

Comment is also required on the omission from the judgment entry of any statement as to value of particular assets or as to the aggregate value of assets assigned to either party. By the specific direction of Section 452.330-1(2), RSMo Supp.1973, the court is obligated not only to allocate assets but also to evaluate the property set apart to each spouse. Where the decree does not include both elements, no final judgment results and the appellate court is without jurisdiction. Nilges v. Nilges, 564 S.W.2d 262 (Mo.App.1978). Without the benefit of the trial court’s finding as to asset values, meaningful appellate review of property division is precluded.

On remand, it will be the prerogative of the trial court to reopen this case for such further evidence as may be deemed appropriate to furnish the factual basis for rulings on the issues of property identification, allocation and valuation as required. The record at hand does, as noted, appear less than adequate to enable the trial court to perform the judicial function imposed by the statute.

The judgment of October 31, 1977 is affirmed insofar as it grants the order of dissolution and awards custody of the children. In all other respects, the case is remanded for further proceedings consistent with this opinion.

All concur.

APPENDIX

APPELLANT’S POINTS RELIED ON:

I.

THE FARM OF 640 ACRES INHERITED FROM HUSBAND’S AUNT IS NOT MARITAL PROPERTY; NOR IS THE 110 ACRES PURCHASED BY HUSBAND FROM INSURANCE MONEY RECEIVED ON DEATH OF HIS SON, NOR IS THE $5,000.00 TIME CERTIFICATE IN CHIL-LICOTHE STATE BANK A PART OF THE MARITAL ASSETS AS IT WAS INHERITED FROM HIS SON. THE FACT THAT THE WIFE SIGNED THE DISASTER LOANS AND DEEDS OF TRUST DOES NOT MAKE THE LANDS MARITAL PROPERTY.

II.

THE TRIAL COURT IN HIS ORDER ABUSED HIS DISCRETION

(A) IN THAT HE IGNORED THE FACT THAT THE RESPONDENT WIFE HAD BEFORE THE SEPARATION TAKEN $30,000.00 WORTH OF DOGS;

(B) IN THAT HE OVERLOOKED THE $4,500.00 TIME CERTIFICATE OF WIFE PURCHASED WITH MARITAL FUNDS;

(C) IN THAT HE OVERLOOKED THE FACT THAT SHE HAD PURCHASED A TRUCK WITH MARITAL FUNDS;

(D) THAT IN HIS FINDING HE DELIVERED TO THE WIFE A PROPERTY IN CHILLICOTHE VALUED AT $14,-000.00, HER TRUCK, HER TIME CERTIFICATE OF DEPOSIT OF $4,500.00 AND PERMITTED HER TO KEEP THE $30,-000.00 WORTH OF DOGS;

(E) IN THAT HE SADDLED THE HUSBAND WITH PAYING ALL DEBTS EXCEPT THE DEBT ON THE WIFE’S TRUCK AND WHICH DEBTS EXCEEDED THE ASSETS OF THE MARITAL PROPERTY BY IN EXCESS OF $25,-000.00;

(F) THAT HIS ORDER GIVES THE WIFE A PREMIUM FOR HER INFIDELITY AND PENALIZES THE HUSBAND FOR HER INFIDELITY IN THE SUM OF $25,000.00 IN DEBTS AND GIVES HER $48,500.00 IN ADDITION.

      . See appendix for recitation of Points Relied On as they appear in appellant’s brief.


text:
    STATE of Missouri, Respondent, v. Bradley Lynn MEEK, Appellant.
    No. KCD 30204.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      James L. McMullin, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Bradley L. Meek was convicted by a jury of the offense of sale of a Schedule I controlled substance and sentenced to a term of five years. He appeals the judgment and sentence on a single ground of alleged error, the failure of the court to grant a mistrial when defendant was asked on cross-examination if he had made an offer to the undercover officer to sell additional marijuana for subsequent delivery. Affirmed.

The charge against defendant arose from a transaction after initial contact between defendant and an undercover officer had been negotiated by a confidential informant. After the introduction by the informant, defendant accompanied the officer to another location where a sale of a substance later identified as marijuana was consummated by a third party.

Defendant testified on his own behalf. While acknowledging that he had introduced the officer to the third party from whom the controlled substance was purchased, defendant disclaimed any other part in the transaction and denied having given or received the marijuana or the purchase money. The question of which defendant complains was asked of him on cross-examination and was as follows: •

“Q. Did you ever tell him [one of the police officers] that if he could come back the first of next week, you would try to have a half pound of marijuana for him?”

While defendant responded in the negative before an objection could be interposed, defense counsel then moved for a mistrial. The motion was overruled. Defendant contends that the question prejudicially injected into the case evidence of another crime and relies principally on State v. Lee, 486 S.W.2d 412 (Mo.1972).

In the Lee case, the defendant was charged with first degree murder. Throughout the trial, the state made repeated references to Lee’s asserted involvement in other crimes including bombing, arson and burglary. Terming the prosecu-torial misconduct “gross violation,” the court stated:

“There is nothing to indicate that the alleged bombings had any connection with or relation to the charge of murder for which defendant was on trial. Any such alleged specific crimes were offenses wholly separate and distinct from the offense with which defendant was charged.”

The proposition established by this and other cases cited by defendant is well known and was recently reviewed in State v. Boley, 565 S.W.2d 828 (Mo.App.1978). While evidence that defendant has committed other crimes is generally not admissible, such evidence is competent when offered to prove the crime charged if it tends to establish motive, intent, identity, absence of mistake or accident or a common scheme or plan for commission of two or more related crimes. State v. Boley, supra; State v. Reed, 447 S.W.2d 533 (Mo.1969).

In the subject case, defense counsel’s opening statement and the direct testimony by defendant focused on the minimal participation by defendant in the drug sale. The entire thrust of the defense was to portray defendant as an onlooker who neither intentionally nor actively joined in the crime but was encouraged to provide an introduction by the entreaties of the undercover officer. In these circumstances, the question designed to reveal defendant’s solicitation of additional traffic in restricted substances was proper to show motive.

While intent is not an element of the offense under Section 195.020, RSMo 1969 (State v. Page, 395 S.W.2d 146 [Mo. 1965]), motive is frequently, as here, injected by the evidence as a factual issue for the jury. Motive is the moving cause which induces action; it has wholly to do with desire. Motive is an evidentiary fact, a circumstance for argument and consideration by the jury. State v. Gordon, 536 S.W.2d 811, 818 (Mo.App.1976). In the context of the evidence of this case, the state’s question was properly allowed as an exception to the rule prohibiting evidence of other crimes and was properly received to show motive.

Respondent argues that the question was proper impeachment of defendant’s credibility on the basis that any witness may be asked if he had committed a prior criminal act. By offering himself as a witness, defendant subjects himself to contradiction and impeachment as any other witness and his credibility may be challenged by proof of prior convictions. State v. Byrth, 395 S.W.2d 133 (Mo.1965). So too may a witness be impeached by evidence of offenses committed even though the witness may not have been prosecuted and convicted. State v. Lynch, 528 S.W.2d 454 (Mo.App.1975) witness asked if she had ever knowingly purchased stolen guns or sold stolen guns to a known felon; State v. Williams, 525 S.W.2d 395 (Mo.App.1975) witness asked if he had killed a man with a pistol; State v. Summers, 506 S.W.2d 67 (Mo.App.1974) witness asked how many burglaries he had participated in; State v. Williams, 492 S.W.2d 1 (Mo.App.1973) witness asked if she had made a false report to the police concerning a shooting (unrelated to case on trial); State v. Foster, 349 S.W.2d 922 (Mo.1961) witness asked if he had planned and attempted a robbery.

In State v. Dunn, 577 S.W.2d 649 (Mo.1979) the court examined the rules laid down in State v. Williams, supra, State v. Foster, supra and State v. Summers, supra and observed that a defendant who testifies may be impeached the same as any other witness. On objection, however, inquiry as to general credibility must be limited where defendant’s right to a fair trial may be impaired. In sum, the cases reaffirm the discretion of the trial court to control cross-examination but circumscribe the latitude of impeachment inquiry where the witness is the defendant reserving, on a case by case basis, appellate review to determine that specific questioning was erroneous and constituted prejudicial error. For additional discussion and citations, see State v. Cleveland, 583 S.W.2d 263 (Mo.App., 1979).

The subject case is one in which the court properly allowed cross-examination of the defendant as to a related but unprose-cuted offense, the offer to sell additional drugs, because defendant’s conduct bore directly on the instant charge and was an element for the jury to consider in believing or rejecting defendant’s disavowal of conduct as a drug dealer. Similar cross-examination has previously been approved. State v. Tilcock, 522 S.W.2d 60 (Mo.App.1975).

The judgment of conviction is affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    STATE of Missouri ex rel. Max THOMAS and Virginia Thomas, Appellants, v. BOARD OF ALDERMEN OF the CITY OF ROCK PORT, Missouri, Herbert Johnson, Frank Heyen, Bob Coit, Bryon Dewey and Joyce Stoner, in their capacity as Board Members, Respondents.
    No. WD 30287.
    Missouri Court of Appeals, Western District.
    June 29, 1979.
    John A. Koepke, Kansas City, for appellants; Morris, Larson, King, Stamper & Bold, Kansas City, of counsel.
    Walter L. Mulvania, Rock Port, for respondents.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

Appellants obtained an alternative writ of mandamus from the trial court directing respondents to act upon their application for a liquor license. Respondents filed their return along with a motion to dismiss the alternative writ upon the ground that the petition therefor shows on its face that appellants did not make application for a particular liquor license as evidenced by the copy of the application attached to the petition and as required by the Rock Port ordinances, and that (therefore) the duty of respondents in passing upon or not is not required without a proper written application. The trial court sustained the motion to dismiss, and the issue here is whether appellants stated a claim for relief in their petition for the writ.

The written application, contained in a letter to respondents dated August 29,1977, written by appellants’ attorney, Mr. Jefferson G. Broady, is attached to their petition for the alternative writ of mandamus, and is as follows: “Re: Liquor License for Max and Virginia Thomas Dear Counsel Members: This letter is inform you in writing of Max and Virginia Thomas’ application for a liquor license at their establishment located at 416 South Main Street, the former Sear’s retail outlet and the store immediately North on the same side of the street with common boundary with the other store. As you may know Mr. Thomas has orally attempted to win counsel approval of his license. This letter is to confirm in writing the his application for the said license in compliance with the Section 3-23 which provides the said license application shall be in writing. Please authorize the clerk to issue said license immediately.”

Ordinance 3-23 of Rock Port is: “All applications for license required by this ar-. tide shall be made in writing to the Board of Aldermen and shall accurately describe the premises where the business is to be conducted. All applications for such licenses shall be passed on by the Board, and on approval of an application, the Board shall instruct the city clerk to issue said license on payment of the required fee.”

Assuming, but not deciding, that a written application for a liquor license could be signed by someone on appellants’ behalf, i. e., as here, their attorney, yet the application submitted to respondents does not describe the type of liquor license desired to be issued. Thus, as contended by respondents, the application did not give rise to any duty on respondents to pass upon it. There are many kinds of liquor licenses which are authorized to be issued by cities such as Rock Port. Note § 311.220 2. RSMo 1978, which provides that the board of aldermen of incorporated cities may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquors. The application of appellants does not exclude, or describe with detail, any of these categories. Nor does it reference “Sale by the Drink” as authorized to any incorporated city, after an election thereon, under §§ 311.090, et seq. It is true that appellants’ affidavit attached to their petition for the alternative writ describes their desired license for liquor by the drink, which affidavit and petition were dated and filed April 13, 1978, long after their counsel’s letter was submitted to respondents. The alternative writ issued by the trial court directed respondents to “grant or deny, pass upon or otherwise rule upon Relator’s liquor license application * * That alternative writ could only relate to the application for liquor license pending before respondents on August 29, 1977, and no affidavit filed in the circuit court could change it. When it was brought to the attention of the court that the application failed to describe the kind of license desired, there was no alternative than to dismiss the writ, counsel’s letter being attached to the petition as a part thereof. It is thus apparent that appellants had no clear and unequivocal right to the relief requested. State ex rel. Sprague v. City of St. Joseph, 549 S.W.2d 873 (Mo. banc 1977). Under the state of the pleadings, and the fact that respondents had not acted upon the application for liquor license, the only relief would have been to direct them to act, one way or another. The petition and attachments being insufficient to state a claim to relief, the trial court was without authority to hear evidence anew and adjudge thereon whether appellants were entitled to a license, as suggested by appellants. This case is thus apposite to State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73 (Mo.App.1968). Strangely, appellants at no time after August 29, 1977, amended their application for liquor license or filed one anew.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Donald Lee MERCER, Defendant, and Surety Insurance Company of California, Surety-Appellant.
    No. KCD 30312.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Robert L. Knapp, Independence, for appellant.
    John Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Surety Insurance Company of California, appellant herein, executed and filed with the circuit court a bail bond guaranteeing the appearance of Donald Lee Mercer to answer a charge of robbery then pending. The case was subsequently tried, Mercer was convicted and punishment was assessed at ten years. Pending disposition of the new trial motion, Mercer was released on a continuation of the prior bond.

On the date set for hearing and disposition of the new trial motion, Mercer failed to appear. The bond was declared forfeited and a warrant was ordered for Mercer’s arrest. Some six months later, Mercer had not been apprehended and the state then proceeded on motion to obtain judgment against appellant for the penal sum of the bond. After hearing, the court entered judgment and the surety prosecutes this appeal contending that the evidence presumptively established Mercer’s suicide and that appellant should have been exonerated from liability.

Evidence offered by appellant at the hearing on the state’s motion for judgment was to the effect that Mercer, facing confinement, had elected to take his own life by jumping from the rail of the Lewis and Clark Viaduct near the Missouri-Kansas state line. In summary, the evidence established that Mercer’s car had been found on the bridge after police had received an anonymous telephone report of a man seen jumping, that notes in Mercer’s handwriting had been dispatched to his family and that surveillance by an agent of appellant acquainted with Mercer and his habits had failed to uncover any trace of the fugitive. The trial court concluded that the evidence was insufficient to prove Mercer’s suicide.

In resisting forfeiture and judgment on a bail bond by reason of non-appearance of the principal, the burden is on the surety to show justification or excuse. State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (1954); State v. Daigle, 442 S.W.2d 503 (Mo.1969). Remission of the bond penalty is a subject for the exercise of judicial discretion by the trial court to be reviewed and disturbed on appeal only if arbitrarily and unreasonably exercised either for or against the surety. State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927 (1947).

Appellant’s only contention on this appeal is that failure to remit the penalty was an abuse of the trial court’s discretion and was arbitrary because the decision was against the weight of evidence persuasive as to Mercer’s death.

Review in this court-tried case is pursuant to Rule 73.01 as in suits of an equitable nature. In such matters, the appellate court may set aside a judgment as against the weight of the evidence but only when possessed of a firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Appellant presented a case of circumstantial evidence from which two possible conclusions could have been reached, each consistent with the same facts. The first was that Mercer had committed suicide and the second was that Mercer had arranged his disappearance under circumstances which would suggest his suicide and deter or delay pursuit. As no conclusive evidence of Mercer’s death was supplied, neither result may be excluded as a possible decision consistent with the evidence.

The trial court here was not satisfied that the quantum of proof was sufficient to invoke the discretionary exoneration of the surety on the grounds generally recognized in Missouri, an act of God, an act of the law, an act of the obligee, the State, or an act of a public enemy. State v. Tennyson, 537 S.W.2d 858 (Mo.App.1976); State v. Savage, 461 S.W.2d 887 (Mo. banc 1971). It cannot validly be contended that a wrong result was reached when the trial court concluded, as he did, that appearance of Mercer’s suicide had been contrived. No abuse of discretion is shown.

The judgment of the trial court is affirmed.

All concur.

      . The state has filed with this court a letter attaching the affidavit of the records officer of the Missouri State Penitentiary and photocopies of inmate record cards showing receipt in custody on delivery December 8, 1978 from Jackson County of Donald Lee Mercer. No response to this communication has been made by appellant and oral argument having been waived, the subject has not been further elucidated. Despite the conclusive effect which subsequent apprehension of Mercer would accomplish to dispel former doubt regarding his death, me matters related in the state’s letter have not been properly brought before this court, are not within the record of the case and are not considered in this opinion and decision.


author: ROBERT R. WELBORN, Special Judge.

text:
    Victor CERAME, Appellant, v. STATE of Missouri, Respondent.
    No. 30353.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Craig A. Van Matre, Van Matre & Van Matre, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Steven Ste-inhilber, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of relief, after hearing, in Rule 27.26 proceeding.

On January 7, 1977, Victor Cerame was sentenced on a plea of guilty in the Boone County Circuit Court to concurrent 14-year sentences on two charges of illegal sales of a controlled substance. On January 25, 1978, Cerame filed a motion in that court under Rule 27.26 to vacate the sentences. The motion was later supplemented by movant’s appointed attorney. A hearing was held on the motion on June 9, 1978. On June 28, 1978, the judge entered findings of fact and conclusions of law adverse to movant and denied the relief sought. This appeal followed.

In this court, three assignments of error are advanced by appellant. He first contends that the trial court erred in overruling his motion because, in accepting his guilty pleas, the court failed to inquire as to the factual basis surrounding the pleas. He complains that the court’s inquiry at the acceptance of the pleas was “perfunctory” and only directed at the ultimate facts, without regard for the surrounding circumstances.

The interrogation by the court at the acceptance of the guilty pleas went as follows:

“Q (By the Court) Mr. Cerame, do you understand in the Case Number 665, the State has alleged on the 8th day of August you, while acting together with another individual, here in Boone County, sold a controlled substance, a Schedule I substance, heroin, and it was sold for, and in exchange of lawful currency of the United States, do you understand what you’re charged with?
“A Yes.
“Q Did you in fact on that date, transfer a substance which you believed to be heroin?
“A Yes.
“Q Did you in fact receive money for the transfer?
“A Yes.
“Q Likewise, as to Case Number 656, in Count II, it is alleged on the 17th day of June, of this last year, you acting by yourself, sold a controlled substance, again heroin, and it was sold for and in exchange for lawful currency of the United States, did you in fact on that date transfer a substance that you believed to be heroin?
“A Yes.
“Q And did you in fact receive currency in exchange therefore [sic]?
“A Yes.”

Appellant now complains that a more detailed inquiry by the court would have brought out the facts, testified to by Ce-rame at the 27.26 hearing, concerning the June 17 transaction. Cerame testified that, at the time of that transaction, he was “laying on the kitchen floor,” under the influence of heroin, at a house in Columbia. Two undercover policemen entered the house, inquired whether movant was “all right,” picked up bags of heroin on the kitchen table, left $100 in cash and departed. On cross-examination, Cerame admitted that two days before the transaction he had arranged for the officers to pick up heroin for them to sample.

Appellant contends that, had the trial court conducted a more thorough inquiry and brought this version of the transaction to light at the time of the guilty plea, the court could not have accepted the plea, at least as to that offense, because appellant “ * * * according to his version of the facts, did not directly participate in the sale of a schedule 1 controlled substance. Appellant also testified to facts indicating that the potential defense of entrapment would have been available to Appellant.”

The appellant admitted facts sufficient to constitute the offenses to which he pleaded guilty. His answers demonstrated an awareness of the nature and elements of the offenses with which he was charged. See Giles v. State, 562 S.W.2d 106, 109[2] (Mo.App.1977). The trial court was not required to explain each and every detail to appellant. The decisive question is whether or not the plea was in fact intelligently and voluntarily made. McMahon v. State, 569 S.W.2d 753, 758[l-4] (Mo. banc 1978). The trial court did ask appellant whether or not he understood the defense of entrapment and appellant replied affirmatively. Appellant’s testimony at the 27.26 hearing produced no facts showing a valid defense on that ground. No occasion for inquiry into appellant’s mental state at the time of the transaction appeared from the course of the interrogation at the time of the guilty plea.

The trial court’s inquiry at the time of acceptance of the plea was adequate to demonstrate an understanding and intelligent act on the part of appellant in pleading guilty. The trial court was not obliged to accept appellant’s statement on the 27.26 hearing that he would not have pleaded guilty had he been aware of potential affirmative defenses in the event of a trial of the case. The trial court found appellant totally lacking in credibility as to his contention that his plea was less than voluntary. This court will not disregard that finding.

Appellant’s second contention is that he was denied effective assistance of counsel because his appointed counsel failed to advise him of his potential defense of entrapment and as to the mandate of Section 195.221, RSMo 1975 Supp. The trial court found that appellant’s claim of ineffective assistance of counsel was refuted by the transcript and by the testimony of William Mays, the public defender who represented appellant at the time of the pleas. Mays testified that he discussed the possibility of asserting an entrapment defense with appellant. Appellant acknowledged at the time of the plea that he was familiar with the defense of entrapment. The trial court obviously believed these statements rather than appellant’s assertion on the 27.26 hearing that Mays did not advise him as to the possible defense of entrapment.

As to the matter of Section 195.221, Mays acknowledged that he was unaware of that provision and obviously could not have advised appellant concerning it. Section 195.-221 provides:

“Notwithstanding section 549.275, RSMo, if the board of probation and parole releases any person from a state penal institution who was convicted of selling, giving, or delivering a controlled substance as defined in this chapter, the period of parole shall be for not less than the completion of the original sentence plus five years. If, however, he is found to have violated the conditions of his parole, he shall be recommitted to confinement by the department of corrections for the remainder of the term set by the original sentence from which he was paroled.”

Appellant testified that his plea of guilty was premised upon the idea that by accepting the 14-year term of imprisonment, his obligation to the State of Missouri would not exceed 14 years. When he reached the prison, he received a pamphlet which advised him concerning Section 195.221. He testified at the 27.26 hearing that, had he known of the requirement that his period of parole, should he receive one, would extend five years beyond the 14-year period, he would not have pleaded guilty.

Inasmuch as appellant is relying upon inadequacy of counsel as the basis for relief, the question is whether or not the advice of counsel was within the range of competence demanded of attorneys in criminal cases. State v. Nielsen, 547 S.W.2d 153, 159[6] (Mo.App.1977). In mitigation of counsel’s lack of knowledge of Section 195.-221, it may be noted that, for some not readily apparent reason, both the official supplement to the Missouri Revised Statutes (RSMo Supp.1975) and Vernon’s Annotated Missouri Statutes have placed Section 195.221 as the first section under a subheading “Hallucinogenic, Hypnotic, Somni-facient and Stimulating Drugs.” No such sub-heading appeared in the enactment which encompassed Section 195.221. Laws of Mo. 1971-1972, pp. 237, 259.

In view of the contingent application of Section 195.221, its coming into play only if a parole should be granted, the failure to inform appellant concerning it did not render his plea unintelligent or involuntary. Perfection and omniscience are not the applicable tests. Baker v. State, 524 S.W.2d 144, 147[1-3] (Mo.App.1975); State v. Nielsen, supra. Appellant did not consider the failure of counsel in this regard significant enough to include it in his detailed pro se complaints. The advice and assistance given was within the range of competence and the trial court did not err in denying relief on this ground.

Appellant finally complains that the prosecutor was guilty of “prosecutional misconduct” by threatening to charge appellant as a second offender on the basis of a conviction in the State of New York of “attempted possession of a dangerous drug, 4th degree.” Appellant contends that such conviction would not have constituted a pri- or offense within the meaning of either Section 556.280, RSMo 1969, or Section 195.-200, subd. 1(5), RSMo 1975 Supp., and, therefore, appellant was coerced into pleading guilty.

In plea bargaining discussion, the prosecutor indicated that he would recommend a punishment of 10 years’ imprisonment if appellant pleaded guilty to the charges. Later, the prosecutor received information that appellant had been convicted in New York of attempted possession of a dangerous drug, 4th degree. The prosecutor then said that, in view of this conviction, he would recommend a 14-year sentence on a plea of guilty. According to appellant he accepted the 14-year offer because of the threat that he would be prosecuted as a “second offender” if he failed to do so.

In this court, appellant offers no authority in support of his contention that the New York offense would not have been cognizable under either Section 556.280 or Section 195.200, subd. 1(5). Such contention ignores the language of both of such sections. Under Section 195.200, subd. 1(5), the enhanced punishment there provided becomes applicable upon conviction for sale of a controlled substance under Schedules I or II “if the offender has previously been convicted of any felony violation of the laws * * * of any state * * * relating to controlled substances * * *.” The prosecutor was informed that the New York conviction was for a felony. Appellant, except for his assertion that he did not consider it a conviction, makes no attempt to demonstrate otherwise.

Likewise, Section 556.280 contemplates conviction for attempt as a prior conviction under that section where the completed offense would have been punishable by imprisonment in the penitentiary. “Under this provision, where the prior conviction is for an attempt to commit a particular offense, the test is not what punishment is prescribed in the statute for the attempt, but rather the punishment applicable if the offense attempted had been perpetrated.” State v. Bosler, 432 S.W.2d 237, 239[3, 4] (Mo.1968). See also State v. Higgins, 568 S.W.2d 552, 554[5] (Mo.App.1978).

There is no need to determine the effect of the New York conviction. It is sufficient to say that the prosecutor is not to be convicted of “prosecutional misconduct” by reason of his reliance upon it as a prior conviction which might be the basis for enhanced punishment.

Judgment affirmed.

All concur.