author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. Marshall McTAGUE, Relator-Respondent, v. James S. McCLELLAN et al., Respondents-Appellants, Edward R. Joyce, Intervenor-Respondent.
    No. 36501.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 6, 1976.
    Jack L. Koehr, City Counselor, Timothy G. Noble, Asst. City Counselor, St. Louis, for respondents-appellants.
    Michael W. O’Reilly, St. Louis, for relator-respondent.
    Edward R. Joyce, St. Louis, for interve-nor-respondent.
   RENDLEN, Judge.

This is an appeal from Writ of Mandamus issued by the Circuit Court of the City of St. Louis commanding the Board of Election Commissioners of the City of St. Louis to conduct the door-to-door canvass required by §§ 118.330-118.350, RSMo 1969.

Since appellants [respondents below] have expressly abandoned all issues on this appeal except the question of statutory construction, our statement of facts will be brief. In 1974 appellants announced plans to dispense with the door-to-door canvass of registered voters required by the statutes and to instead rely upon a canvass by mail which appellants opined would be equally effective and less expensive. Respondents [relators below] sought mandamus in the Circuit Court of the City of St. Louis to require the door-to-door canvass and following hearing on January 23, 1974, the pre-emptory writ issued, leading to this appeal.

Appellants’ sole contention is the court erred in issuing the writ because the pertinent statutory provisions are directory, not mandatory; that the statutes prescribe only technical procedures for conduct of elections; and that the statutes’ door-to-door canvass requirements call for nothing more than discretionary action by the board. We do not agree.

As explained by our Supreme Court, the mandatory-directory dichotomy ordinarily “arises in determining whether failure to comply with a statutory provision makes an act or proceeding void . . . [w]hen the statute creates an official duty in the interest of the public it is a different matter; and when the General Assembly imposes such a duty upon a public officer, he has no discretion as to whether or not it should be performed.” State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179, 181-2 (en banc 1950). Here we do not search for the effect of the board’s failure to conduct door-to-door canvass or to determine whether such failure would render such acts void or voidable; we instead are called on to determine if board may in its discretion discontinue the door-to-door canvass and substitute a procedure of its own devising. Stated otherwise, the issue may be described as whether under the statutes, appellants have discretion to select what they consider an appropriate method of canvassing or are the duties ministerial, in which case appellants may be compelled to perform the acts prescribed by law.

Chapter 118, V.A.M.S., regulating voter registration and conduct of election in cities of over 600,000 inhabitants is controlling here. Section' 118.330 relative to verification lists of registered voters is as follows:

“Immediately after the close of registration before each election preceding which a canvass is required, the board shall have verification lists prepared for each precinct. Such list shall have the names and addresses of all voters registered in the precinct arranged in the same order as the precinct registers. A canvass shall be made before each general state and county election, each state and county primary and primary city elections.” (Emphasis supplied).

Section 118.340, detailing the nature of the canvass and duties of precinct canvassers, provides in pertinent part as follows:

“The two clerks of election of opposite politics designated by the board of election commissioners shall be constituted canvassers of the precinct for which they are appointed and, at such time as the board may direct, said two clerks shall, each having one of the verification lists, go together and canvass such precinct, calling at each dwelling place or each house where anyone may reside in such precinct and each dwelling place as indicated upon said verification lists In making the canvass, the canvassers shall make special inquiry at the residence as designated in the registry and verification lists as to all the persons so registered as qualified voters. In making such canvass, the clerks shall meet at eight o’clock in the forenoon of the first day at the office of the board to receive necessary supplies and instructions and shall proceed with such canvass as herein directed. If either of the canvassers shall fail to appear . . . the chairman or secretary of the board . . . shall immediately appoint a canvasser of the same politics as the one absent or failing to act.” (Emphasis supplied).

Section 118.350 provides procedures for notifying persons found by the canvasser not residing in their previous place of residence to show cause why their names should not be erased from the registry.

It is apparent from these sections the general assembly intended that door-to-door canvass be regularly conducted in the manner prescribed. Section 118.330 requires such canvass be made before each of several named general and primary elections. Section 118.340 directs the board to “designate” clerks from the precincts as “canvassers” who “shall ... go together and canvass such precinct, calling at each dwelling place or each house . . .” The language of § 118.340 “at such time as the board may direct” gives the board limited discretion only as to the selection of the day and time (within the general time frame prescribed by the statutes) for the required door-to-door canvass. We find the use of the word “shall” in §§ 118.330, 118.340 and 118.350, was intentional and the detailed procedures set forth therein are ministerial acts which the board has no authority to alter. See State ex rel. Hopkins v. Stemmons, 302 S.W.2d 51, 54[4] (Mo.App.1957) in which the statutory language “shall be given” was interpreted. There it was held that the use of “shall” in a statutory provision generally indicates a mandate and the court noted “that ‘shall’ and ‘may’ have, at times, been used carelessly and indiscriminately . . . and that our courts have not hesitated to hold that the manifest intent of a legislative enactment will prevail over the literal sense of its terms . Nevertheless, the general rule is that ‘shall’ indicates a mandate . . . And, the use of mandatory language in one part of a statute and of permissive language in another part of the same statute . sometimes has been thought to have been indicative of purposeful selection, requiring literal interpretation of the language employed.”

Immediately following the canvass provisions of §§ 118.330-118.350, the legislature by § 118.360 has provided for investigation of the residency and other qualifications of voters “at any time it (the board) may deem necessary” or when information concerning these matters is brought to the board’s attention. For this purpose the legislature has provided, “a canvass of all precincts or part thereof may be made by mail. Such investigations may be made at any time ordered by the said board and shall be conducted whenever and in such manner as it shall direct . . . ” (Emphasis supplied). Use of the word “may” in § 118.360 for canvass by mail relative to such investigations, coupled with clear grants of discretion in ordering such supplemental investigations, as contrasted with the use of “shall” in the three preceding sections, supports our conclusion that use of the mandatory language “shall,” in §§ 118.330,118.340 and 118.350, was intentional. We hold the detailed procedures contained therein are ministerial acts which the board has no authority to alter and is bound by law to perform.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.

      . All statutory references are to RSMo 19S9.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. David F. DIAMOND, Defendant-Appellant.
    No. 36384.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 6, 1976.

      Theodore S. Schechter, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Tim Verhagen, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals from his conviction for tampering with a motor vehicle (a 1970 Chevrolet) without the owner’s permission. § 560.175(1) RSMo 1969. He was sentenced to two years imprisonment under the Second Offender Act, § 556.280 RSMo 1969. We reverse.

On June 21, 1973, a 1970 Chevrolet was stolen in the City of St. Louis. According to Kenneth Sanders, a witness for the state, he, the defendant, and Ernest Jumper stripped the auto that evening in his residential garage. The three men were participating in a plan, whereby defendant and Jumper stole autos, then paid Sanders $200 for the use of his garage and for his help in dismantling the autos.

Defendant did not testify. Ernest Jumper was the principal defense witness. On cross examination Jumper acknowledged he had been charged with the theft of a 1968 Plymouth GTX but he denied stealing the auto. He also denied that he was at Sanders’ house on June 21 and that he had ever taken any autos apart there.

To rebut Jumper’s cross examination assertion that he had not stolen a 1968' Plymouth, the state produced evidence that a 1968 Plymouth GTX was stolen on June 2, 1973. Sanders told how he and Jumper had stolen a 1968 Plymouth GTX auto on June 2 and then drove it to Sanders’ house and the next day Sanders and Jumper removed the auto’s windshield and changed the ID number on the dashboard.

The state also rebutted Jumper’s cross examination testimony that he was not at Sanders’ home on June 21 and that he had never taken any cars apart there. A 1969 Buick Skylark was also stolen on June 21, 1973. This stolen car contained a child’s car seat. A detective testified that he saw the stolen Buick at Sanders’ home about 2 p. m. that same day. About 4:30 p. m. that same day he observed Sanders drive the Buick to the front of his garage. Mrs. Sanders said both Jumper and defendant were at the house on the afternoon of June 21, and defendant had given her a child’s car seat. Sanders said he first saw the Buick when he arrived home from work that day. He, Jumper and defendant took some parts from the Buick’s front end, and then defendant drove the Buick away.

Defendant’s first contention is that the trial court erred in admitting over objection the rebuttal testimony concerning the theft of the 1968 Plymouth GTX. Defendant argues that since Jumper denied stealing the car on cross examination, the state was bound by his answer and could not offer evidence to the contrary. We agree.

The well-established rule in Missouri is that when a cross examiner questions a witness about specific acts collateral to the issues in dispute, he is bound by the witness’ answer and cannot offer contrary evidence (except for a criminal conviction, § 491.050 RSMo 1969). State v. Williams, 492 S.W.2d 1 (Mo.App.1973); State v. Johnson, 486 S.W.2d 491 (Mo.1972); Wiesemann v. Pavlat, 413 S.W.2d 23 (Mo.App.1967).

The critical question is whether Jumper’s alleged theft of the Plymouth was collateral to the disputed issues in this case. A collateral fact or issue has been defined as one that is “subsidiary or secondary.” Crabtree v. Kurn, 351 Mo. 628, 1973 S.W.2d 851, 858 (1943).

The only issue in this case was whether the defendant illegally tampered with a 1970 Chevrolet on June 21, 1973. The state’s theory, however, is that the defendant participated in a scheme wherein he and Jumper stole cars and then paid Sanders both for his help in dismantling- the cars and for the use of his garage. The state stressed this alleged scheme in its opening statement, during the testimony, and in its closing argument. The state contends that evidence of extraneous criminal acts by Jumper committed in the furtherance of this alleged scheme is not only relevant, but also pertains to the major issue in the case and is not a collateral matter.

Despite the state’s theory, the fact remains defendant was only charged with tampering with a 1970 Chevrolet on June 21,1973. He was not charged with stealing or tampering with the 1968 Plymouth GTX on June 2-3, 1973. Nor was he charged with stealing or tampering with the 1969 Buick. Nor was he charged with conspiracy to steal or tamper with motor vehicles.

Likewise, the rebuttal evidence concerning the Plymouth failed to implicate defendant in this alleged illegal scheme. The rebuttal testimony of Sanders and the detective concerning the stealing of the Plymouth GTX never included any evidence of any participation by the defendant. According to Sanders, only he and Jumper participated in the June 2-3 theft and dismantling of the Plymouth GTX.

We believe the trial court erred in admitting the rebuttal evidence concerning the theft of the Plymouth, and we believe the probable effect of this evidence was so prejudicial as to mandate a reversal of the conviction and remand of the cause. Defendant was charged only with tampering with a 1970 Chevrolet, not with the theft of the Plymouth GTX; and the rebuttal evidence totally failed to connect defendant in any way with the theft of the Plymouth GTX.

With defendant exercising his right not to testify, the principal defense witness was Jumper. Since Jumper testified (1) he and the defendant were good friends (2) he, defendant and Sanders knew each other and (3) he and defendant had met at Sanders’ home at least a few times, the rebuttal testimony concerning the theft of the Plymouth GTX by Jumper and Sanders could easily have led the jury to believe the defendant was guilty of the charge merely because of his association with the two other men, and thus establish defendant’s “guilt by association.” The jury could easily have confused the primary issue of defendant’s guilt with the collateral issue of whether Jumper stole the Plymouth GTX.

Respondent further urges the rebuttal evidence was admissible to show Jumper’s bias. Not so. Jumper’s bias had already been clearly established on cross examination, when Jumper said he and defendant were “pretty good friends,” but that he believed Sanders to be “a pretty lowdown person,” who was trying to “frame” him.

Respondent argues that the case of State v. Taylor, 486 S.W.2d 239 (Mo.1972), presents virtually an identical fact situation and is dispositive of the instant case. We disagree. In Taylor defendant was charged with second degree burglary. A defense witness testified he and another had burglarized the building, but that defendant had no part in the burglary. The defense witness also said he had seen copper tubing “all over the place.” The state’s rebuttal evidence was that there was no copper tubing stored in the east side of the building, thus tending to show the defense witness had not been in the building but that he had an accomplice (the defendant) who had brought the copper from inside the building to the truck. The rebuttal evidence not only refuted the testimony of the defense witness, but also supported the state’s theory that defendant had actually been in the burglarized building. Thus the rebuttal evidence in Taylor, unlike the instant case, tended to directly prove defendant’s guilt of the specific crime charged.

Defendant relies on the well-established rule that proof of the defendant’s commission of separate and distinct crimes is not admissible unless within one of the exceptions to show motive, intent, absence of mistake or accident, a common plan, or identity. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954); State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974). Such proof must have some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. If the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, the accused should be given the benefit of the doubt and the evidence should be rejected. State v. Boyer, 476 S.W.2d 613, 616 (Mo.1972). The admission of such evidence should be „ subjected to “rigid scrutiny,” because “the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors.” State v. Reese, supra, at 307.

The state’s theory of the case was that defendant, Jumper and Sanders were part of a car theft scheme. The state sought to introduce the evidence of the thefts of the Plymouth GTX and Buick under one of the exceptions listed above — that evidence of other crimes is competent to prove the specific crime charged if it tends to establish a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to directly establish the other. State v. McClure, 504 S.W.2d 664, 668 (Mo.App.1974).

Concerning the theft of the Plymouth, we agree with defendant that the evidence of that theft did not have any legitimate tendency to directly establish defendant’s guilt of the tampering charge of the 1970 Chevrolet. Our reasoning is the same as enumerated above in our discussion of the defendant’s first contention.

Concerning the theft of the Buick, we believe the evidence of that theft was admissible because there was the requisite logical relevance between it and the crime charged.

Both the Chevrolet with which the defendant is accused of tampering and the Buick were stolen the same day. Both stolen autos, the Buick and the Chevrolet, were found at Sanders’ house the same day. According to Sanders, he, the defendant and Jumper took parts off of both autos the day of the thefts. There was also evidence that the Buick auto contained a child’s car seat and that the defendant gave a child’s car seat to Sanders’ wife the day of the thefts.

We believe the evidence concerning the theft of the Buick is admissible to prove the Chevrolet tampering charge, because it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other. State v. Reese, supra, 307. The trial court correctly admitted this evidence.

Defendant next contends it was error for the court to give instruction No. 5A (MAI-CR 2.10). We disagree. It was proper to give this instruction. There was evidentiary support for the instruction.

Defendant also contends that the prosecutor during voir dire improperly attempted to have the jurors commit themselves to a guilty verdict. We need not decide this contention because we believe the form of the question will not be repeated on retrial.

Because we believe the rebuttal evidence concerning the theft of the Plymouth was improperly admitted and was prejudicial to defendant, we reverse the conviction and remand the cause for retrial.

The judgment is reversed and the cause remanded for a new trial.

WEIER, P. J., and RENDLEN, J., concur.

      . Sanders’ employment records were introduced to show that he was working the day the Chevrolet and Buick were stolen. This was obviously done to narrow the thefts to the defendant and Jumper.

      . "INSTRUCTION 5A

      MAI CR 2.10
      “All persons are guilty who knowingly act together with the common purpose of committing an offense, or who, whether present or not, knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
      “The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.”


author: PER CURIAM.

text:
    Walter VALENTINE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36392.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 6, 1976.

      Christopher T. Hexter, Richard A. Freedman, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This appeal from an order entered on May 31, 1974 in the Circuit Court for the City of St. Louis denying the application of Walter Valentine to reopen the above case and to file an Amendment (which the trial court considered as a motion to vacate judgment and sentence under Rule 27.26) is dismissed for failure to comply with the provisions of Rule 84.04 for the reasons hereinafter stated.

On January 4, 1972, Movant was found guilty by a jury in the Circuit Court for the City of St. Louis of the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. After denying Movant’s Motion for a New Trial, the trial court entered judgment on the jury verdict and sentenced Movant to a term of twenty years in the custody of the Missouri Department of Corrections. On January 16, 1973, Division No. 1 of this Court affirmed the judgment of the Circuit Court in that cause. State v. Valentine, 490 S.W.2d 290. Thereafter, on April 5, 1973, Movant filed a Motion to Vacate Judgment and Sentence pursuant to the provisions of Rule 27.26, which motion was heard on June 28, 1973, and a decision denying said motion was entered on June 29, 1973. No appeal was taken from this judgment. On March 27, 1974, Movant filed his pro se motion in the same post-conviction proceeding from which judgment no appeal had been taken seeking to have that proceeding re-opened and the motion itself amended. As stated above, the trial court treated this latter motion as a second Motion under Rule 27.26, appointed counsel to represent the Movant and conducted a hearing on said motion wherein the Movant testified in support of his Motion. The thrust of his testimony was that prior to his conviction on the Robbery charge he had been a patient in the State Hospital No. 1 in Fulton, Missouri, for more than a year and that he had no memory of discussing with the attorney representing him, both prior to and at the time of his trial, anything about a psychiatric report from the Hospital nor about any hearing relative to that report. When asked if he informed his attorney at that time regarding his ability to assist in his defense he replied: “I probably did.” However, when asked what he told his attorney relative to his ability to assist in his defense, he said: “No sir, I don’t remember.” He did testify that his attorney never discussed with him the possibility of having examinations by doctors other than the doctors at Fulton. The Assistant Circuit Attorney did not cross-examine the Movant and no other witnesses were produced by either party to the Motion. It was stipulated by the parties, however, that at the time Movant was charged with the Robbery of which he was convicted, his counsel filed a request under the provisions of § 552.020, subsection 2 for examination of Movant by a psychiatrist to determine whether he had a mental disease or defect and lacked the capacity to understand the proceedings against him or to assist in his own defense and whether at the time of the alleged criminal conduct he, as a result of mental disease or defect, did not know or appreciate the nature, quality or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law; that as a result of that application the Movant was ordered conveyed to the State Hospital at Fulton for psychiatric examination; that a report was filed in the Circuit Court that Movant did not at the time of the offense suffer from a mental disease or defect which would “be sufficient to result in a not guilty verdict for that reason” and that he was competent to stand trial; that trial counsel never contested this report as provided by subsection 6 of § 552.020. In addition to the foregoing, the trial court had before it all records pertaining to the original conviction in Cause No. 739-T, including a psychiatric examination of the Movant.

At the conclusion of the evidence the trial court permitted Movant’s counsel to file an amendment to his Application to Reopen which reads:

“1) Movant alleges that his trial counsel in Cause No. 739-T (the Robbery charge) inadequately represented movant by failing to request a hearing, pursuant to Section 552.020(6) in which he could have challenged the Psychiatric Report submitted by Fulton State Hospital on the issues of movant’s competency to stand trial and the existence of a mental disease or defect going to movant’s guilt in Cause No. 739-T.
2) Trial counsel’s failure to challenge the report pursuant to Section 552.-020(6) resulted in movant being ineffectively represented in violation of the 6th & 14th Amendments to the U.S. Constitution & Article I Section 10 of the Mo. Constitution.”

At the hearing Movant, through his counsel, abandoned and dismissed all grounds initially set forth in his second motion and proceeded on those grounds contained in the amendment aforesaid.

The trial court issued findings of fact, conclusions of law and decision in detail and dismissed the “Application” of Movant on the grounds that it was violative of Rule 27.26(d) or, in the alternative that Movant was not denied effective assistance of counsel on the grounds alleged.

Movant, in this Court, presents three points relied on as grounds for reversal of the trial court and for a judgment vacating his judgment and sentence in Cause No. 739-T. They are:

“I. The Circuit Court erred in dismissing Appellant’s amended motion for post conviction relief in that Appellant has been denied rights under Missouri Supreme Court Rule 27.26.
“II. The Circuit Court erred in denying Appellant relief under Missouri Supreme Court Rule 27.26 in that Appellant was given ineffective assistance of counsel.
“HI. The Circuit Court erred by making Findings of Fact and Conclusions of Law not in compliance with Supreme Court Rule 27.26 and Sec. 552.020 V.A.M.S.; therefore this Court should vacate and set aside the lower court’s holding.”

A proceeding of this nature is an independent civil action and on appeal is governed by the Rules of Civil Procedure insofar as they are applicable. Rule 27.-26(a). Rule 84.04 requires that the points relied on shall state briefly and concisely what actions or rulings of the trial court are sought to be reviewed and why they are claimed to be erroneous, with citations of authorities thereunder. The rule also states that setting out only abstract statements of law without showing how they are related to any action or ruling of the trial court is not a compliance with the Rule.

Movant’s “Points Relied On” are mere abstract statements and do not state the “why” or “wherein” the actions of the trial court were erroneous with specificity. An appellate court has no duty to search the argument portion of Movant’s brief to ascertain the import of abstract statements presented in the points relied on portion of Movant’s brief and will not do so in this appeal. Points of trial court error asserted as they are here preserve nothing for review. Cole v. Cole, 516 S.W.2d 518, 520[4, 5] (Mo.App.1974).

For the reasons stated above Movant’s appeal from the judgment of the Circuit Court denying his Application is hereby dismissed.

All Judges concur.

      . Statutory references are to RSMo 1969 as amended by Laws 1969, p. 572 and Laws 1971, p. 96, § 1.

      . In relation to the necessity of defense counsel who requests a psychiatric examination for defendant and who receives a report that defendant is competent to stand trial to contest said finding, see Shubert v. State, 518 S.W.2d 326, 328[3, 4] (Mo.App.1975).


author: McMILLIAN, Judge.

text:
    STATE of Missouri ex rel. WILSON FREIGHT COMPANY and Donald Wainscott, Relators, v. Honorable William A. GEARY, Circuit Court Judge of the City of St. Louis, State of Missouri, Respondent.
    No. 36628.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 13, 1976.

      Strubinger, Dowd, Haseltine & Wilbers, William B. Haller, Leo Y. Garvin, Jr., St. Louis, for relators.
    James F. Koester, James J. Logan, St. Louis, for respondent.
   McMILLIAN, Judge.

This is an original proceeding in prohibition to prevent the respondent judge of the City of St. Louis, Missouri, from taking, entering, or exercising jurisdiction in a personal injury action between Thomas John Lauria, plaintiff, and Wilson Freight Company [Wilson Freight] and Donald R. Wain-scott, the relators herein, defendants. The question for decision is whether Lauria’s cause of action is a compulsory counterclaim within the meaning of Civil Rule 55.-32(a), V.A.M.R. (adopted January 19, 1973, effective September 1, 1973), which can only be asserted in Lauria’s pleading as the sole defendant in an action commenced by Wilson Freight in Calloway County prior to the time Lauria filed his suit in St. Louis City. We hold that Lauria’s cause of action filed in St. Louis City is a compulsory counterclaim in the prior suit filed by Wilson Freight against Lauria, seeking damages alleged to have arisen out of the same automobile accident. Accordingly, we make our provisional rule in prohibition permanent.

Civil Rule 55.32(a) is substantially the same as Rule 13 of Federal Rules of Civil Procedure and supersedes prior Rules 55.45, 55.46, 55.47, 55.48, 55.49, 55.50 and 55.51. Paragraph (a) is substantially the same as prior Rule 55.45(a) with the addition of paragraph (2). The material part of the amended rule, 55.32(a), reads as follows:

“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action . . . .”

The chronology of relevant events is as follows:

22 July 1974 — A collision occurred in Callo-way County between a vehicle owned by Wilson Freight and operated by Donald Wainscott and a motorcycle owned and operated by Thomas John Lauria.

20 August 1974 — Wilson Freight filed suit for damages against Thomas John Lauria in the Circuit Court of Calloway County, Missouri.

26 August 1974 — Service was obtained upon defendant Lauria in the suit brought by Wilson Freight.

6 September 1974 — Lauria filed a separate and independent action for damages against Wilson Freight and Donald Wainscott in the Circuit Court of St. Louis City.

13 September 1974 — Wilson Freight was served with process in the suit brought by Lauria.

19 September 1974 — Service was obtained upon Donald Wainscott.

11 October 1974 — Defendants Wilson Freight and Wainscott filed a motion to dismiss the suit filed by Lauria in the City of St. Louis, which respondent denied.

7 November 1974 — Relators filed their petition for prohibition in this court pursuant to which we issued our provisional rule in prohibition.

There is no denial that the claims in question arise out of the same transaction or occurrence. The sole issue is whether under Civil Rule 55.32(a), V.A.M.R., the claim asserted by Lauria in the suit filed 6 September 1974 is a compulsory counterclaim in the suit filed by Wilson Freight on 20 August 1974. If it is, respondent has no power or authority to proceed further with the Lauria suit, and prohibition is the appropriate remedy under the circumstances.

In State ex rel. Buchanan v. Jensen, 379 S.W.2d 529 (Mo.Banc 1964) the court considered a situation where an automobile collision occurred between two residents of Jackson County. Buchanan filed suit in Jackson County at Kansas City; thereafter Simpson filed suit against Buchanan also in Jackson County but in the Independence Division. Simpson obtained service in her suit prior to service of process in the Buchanan suit. Buchanan, after his motion to dismiss was denied, sought a writ of prohibition. In making the provisional rule in prohibition permanent based on then Rule 55.45(a) (now 55.32(a)), V.A.M.R., the court said:

“. . .A party can no longer avoid the impact of the compulsory counterclaim rule by bringing an independent action in another court after the commencement of the original action but before such party files his responsive pleading. This is the clear intent of the •amendment and is consistent with the general purpose of the rule which is to avoid a multiplicity of suits and to dispose of litigation more expeditiously and properly.”

See also State ex rel. Davis v. Moss, 392 S.W.2d 260 (Mo.Banc 1965) for a somewhat similar situation.

Here we have a situation wherein Wilson Freight not only filed suit first but also obtained service first upon defendant Lau-ria. Consequently, respondent herein cannot ever avail himself of the discarded argument urged in Moss that Lauria was not an “opposing party” because Lauria’s suit was filed before his responsive pleadings were due in the Wilson Freight suit. Clearly Lauria was an “opposing party” in the Wilson Freight suit.

Civil Rule 55.32(a) as it now stands provides that the claim of the pleader must be stated as a counterclaim if it arose out of the same transaction or occurrence and jurisdiction of the required parties can be obtained, unless the pleader’s claim was the subject of another pending action at the time the action was commenced. Wilson Freight’s suit commenced 20 August 1974 upon the filing of its petition. Tice v. Milner, 308 S.W.2d 697, 701[6] (Mo.1957). Lauria’s claim against Wilson Freight arose out of the same transaction; that is, the issues of fact and law raised by the claim and counterclaim are the same. Jurisdiction of the Circuit Court of Calloway County over defendant Wainscott, Wilson Freight’s driver, can readily be obtained, or at least it is not affirmatively demonstrated that the court cannot get jurisdiction over defendant Wainscott. Rape v. Mid-Continent Building Company, 318 S.W.2d 519[2] (Mo.App.1958). And Lauria’s claim was not the subject of a pending action at the time Wilson Freight’s petition was filed. Thus, his claim was within the purview of the compulsory counterclaim Rule 55.32(a).

We reject as without merit respondent’s argument that the situation herein should be interpreted in light of Civil Rule 41.03, V.A.M.R. In Barclay Investment Corp. v. Lamkin, 408 S.W.2d 168 (Mo.App.1966), we held the language of the compulsory counterclaim, Rule 55.45(a), now 55.32(a), to be mandatory.

Accordingly, we rule that the jurisdiction of defendant Thomas John Lauria’s claim is vested in the Circuit Court of Callo-way County in which the Wilson Freight action is pending, and the respondent judge has no power or authority to proceed in the St. Louis City Circuit Court with Lauria’s separate action while the action first began is pending. A writ of prohibition is the proper remedy to prevent encroachment or interference by a court of coordinate jurisdiction with the power and authority vested in another. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 375[6].

Our provisional rule in prohibition is made permanent.

SIMEONE, P. J., and GUNN, J„ concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene JOHNSON, Defendant-Appellant.
    No. 36702.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 13, 1976.
    Samuel Raban, St. Louis, for defendant-appellant.
    Thomas W. Shannon, Pros. Atty., David E. Miller, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

The Court of Criminal Correction of the City of St. Louis, in a non-jury trial, found defendant guilty of driving an automobile while intoxicated. Defendant appeals.

The sole issue is whether the double jeopardy provision of the Missouri Constitution, Art. I, § 19, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, was violated because of a prior conviction of the defendant in the municipal court, for improper operation of his motor vehicle which arose out of the same occurrence that gave rise to the present charge of driving while intoxicated. For reasons hereinafter given, we hold that defendant’s conviction offended neither the Missouri nor the United States Constitution’s double jeopardy provision as applied; thus, we affirm the judgment of conviction.

On April 13,1974, defendant, while backing his automobile onto Wharf Street in the City of St. Louis, collided with another vehicle. A police officer, who came on the scene after the collision, cited the defendant for two offenses: (1) improper backing of a motor vehicle and (2) driving a motor vehicle while under the influence of alcohol. There is no dispute that both offenses arose out of the same act. Nor is there any dispute that defendant was, in fact, intoxicated. Nor is there a dispute that defendant was convicted in municipal court of illegal backing of his automobile.

To support defendant’s claim of error, he refers us to three opinions of the United States Supreme Court: (1) Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); (2) Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and (3) Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). And three opinions of the Missouri Supreme Court: (1) State v. Parsons, 513 S.W.2d 430 (Mo.1974); (2) State v. Neal, 514 S.W.2d 544 (Mo.1974) and (8) State v. Richardson, 460 S.W.2d 537 (Mo.1970).

None of the cases relied upon are disposi-tive of the issue presented herein. In the Waller case, the issüe decided was that two courts within one state could not place a defendant upon trial for the same alleged crime. The Ashe case was decided upon the doctrine of collateral estoppel. The Robinson case merely applied the Waller ease doctrine to an instance where defendant, rather than being convicted on the second charge, had pled guilty. Thus defendant’s reliance upon those three cases is misplaced.

Likewise, reliance upon either Neal, Parsons or Richardson is also without merit, because the underlying theme of each of those decisions is a proscription against splitting a single crime and prosecuting it in parts.

In the Parsons case defendant was charged with murder of the deceased by bombing in one count, and with causing an explosion whereby the same deceased was put in danger. Thus the court held, “. If there is but a single act of force proved as an incidental means of committing a murder that act of force may not also be charged as a separate crime. . . .”

In Richardson, the defendant was charged with attempted robbery by means of threatening the victim with a dangerous weapon (knife) and also assault, with intent to maim the same victim; that is, assault with the knife. The court recognized that a person may, by one act, violate more than one statute or commit more than one offense. Pifer v. United States, 158 F.2d 867 (4th Cir. 1946), cert. den. 329 U.S. 815, 67 S.Ct. 636, 91 L.Ed. 695 (1947). Also citing with approval from State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 907 (1930), the court also recognized that, “. . .an offender is not to be exonerated from responsibility for his acts because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion. . . . ” But the court condemned the splitting of a single crime and prosecuting it in parts, holding that the assault necessary to establish the offense of the attempted robbery was the identical assault upon which the charge of assault with intent to maim was based.

Likewise, in the Neal case, the prosecution attempted to charge the defendant with the offense of robbery by means of a dangerous weapon and also with a felonious assault upon the same victim. Both offenses arose out of the same transaction. The court reversed the assault charge because the assault necessary for the offense of robbery was the identical assault charged in the assault with intent to kill.

Central to each of the Missouri cases relied upon by defendant is that the specific act, which was, in fact the second charge, was a necessary act in proving both charges. On the other hand, in the case at bar, intoxication was not a necessary act to be proved in the municipal court, nor was improper backing a necessary act to be proved in the state court. Operating a motor vehicle in any direction, if one is intoxicated, would establish the state charge. State v. Darabcsek, 412 S.W.2d 97 (Mo.1967). Even if defendant were intoxicated, he could not have been cited for improper backing if said backing was done with reasonable safety and without interfering with other traffic.

[I] Defendant’s argument before us urges that this court adopt the same transaction doctrine. While such an argument may have some merit, it has not prevailed. The Eighth United States Circuit Court of Appeals, in United States v. DeMarrias, 441 F.2d 1304 (1971), held the rationale of the Waller ease inapplicable in a case where each of the separate offenses required proof of a different element. Likewise, in Hattaway v. United States, 399 F.2d 431 (5th Cir. 1968), using the evidence test, in a prosecution under the Mann Act after the defendant had been acquitted of kidnapping, the court stated, “Offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although the same acts may be necessary to be proved in the trial of each.”

Applying this principle to our case, Waller is distinguishable because the charge of driving while intoxicated, which requires proof of intoxication, is not identical with the charge of improper backing.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.


text:
    In re the Marriage of Dorothy and Buford DODD. Dorothy DODD, Petitioner-Respondent, v. Buford DODD, Respondent-Appellant.
    No. 36464.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 13, 1976.

      Shaw & Howlett, Joseph Howlett, Clayton, for respondent-appellant.
    Hanks, Taylor & Suddarth, Claude Hanks, Clayton, for petitioner-respondent.
   DOWD, Judge.

The husband appeals the trial court’s dissolution of marriage decree as it relates to the awards of maintenance and child support, and the distribution of marital property.

The wife filed suit for divorce on February 14,1973, after twenty-seven years of marriage. The husband answered and then filed a cross-bill for divorce. Since the judgment was not rendered prior to January 1, 1974, the proceedings are governed by the new Missouri dissolution of marriage statute, §§ 452.300-.415 RSMo Supp.1973.

Defendant contends that the wife was not entitled to an award for maintenance and that the awards for maintenance and support are excessive.

The couple have four children, two of whom, sons born in 1956 and 1966, reside with the wife at the family home. The parties stopped living together as man and wife in late February, 1973, and they no longer resided together after July, 1973.

The husband, age 46 at the time of the hearing, had been employed as a sales representative for about ten years. Receiving all his income from his employer, his annual income averaged almost $14,000 for the years 1970-72. His 1973 income was increased by a $500-$600 bonus. His employer gave him a $400 raise in 1974.

The husband participates in two company savings plans. The first plan, hereinafter called “the savings plan,” is designed to supplement his retirement pay. The second plan is a stock option program.

The transcript and the appellate briefs do not clearly present the details of these two plans, but it appears the husband has participated in the savings plan for seven years, contributing 5% of his gross income, presently $55 per month. The value of the fund, which is invested in company stock, was almost $9700 as of September 1972; at that time the husband had contributed almost $4400, and the company about $1700. By the time of the hearing the husband’s contributions totalled $5300. The plan is payable upon retirement, but the husband’s contributions can be withdrawn presently, and the employer’s contributions after ten years of participation.

The husband contributes about $33 per month to the stock option program, which began in 1972 or 1973. Deductions from the husband’s gross salary are made for five years and held for the future purchase of stock. No evidence was presented concerning the present availability of that money to the husband.

The parties’ home, presently occupied by the wife and the two minor children, has an estimated market value of $24,000-30,000, subject to a $12,000 mortgage. The husband and his brother own a home in which their mother resides as life tenant, but the husband does not pay for the mortgage on this house.

The parties’ 1969 Chevrolet, valued at $500, is fully paid for and is used by the wife. The husband drives a leased company car.

In early 1973 the wife withdrew about $6000 from a savings account held jointly with the husband. She spent about $1200 of this sum for attorneys fees, the remainder for necessaries for herself and the children. The $6000 was entirely spent by the time of the hearing. The husband later withdrew the remaining $1000 from the joint savings account.

The wife, age 45 at the hearing, has an eighth grade education and no job training or job skills. During her marriage she had been exclusively a homemaker until 1972, when she worked for a nursery school about twenty-five hours per week at $1.70 per hour. The wife discontinued this nursery school work in 1972 but she began work again at the same school in December 1973, receiving a net monthly income of $138.

Since December 1973 health problems caused her to miss several days of work, and in May 1974 she had to quit her job due to illness. The wife, who has been under a physician’s care, complained about severe stomach cramps, fevers, poor bladder control and shortness of breath. These ailments have limited her ability to do housework, but she is still able to care for her two minor sons.

The husband contends his net monthly income is $830. The wife’s Income and Expense Statement, filed in March 1974, listed regular monthly expenses of $387, personal monthly expenses of $215, and childrens’ expenses of $355 — for a total of $957 per month.

The court dissolved the marriage, finding it irretrievably broken. The wife was o awarded custody of the two minor children, together with child support of $200 per month. The wife was also awarded $200 per month for maintenance.

The husband was ordered to pay the wife $500 for the latter’s attorneys fees. The wife received the family home (subject to the mortgage), plus all its contents except for electrical tools and a color television set. The wife received the 1969 Chevrolet. The husband retained his tenancy-in-common interest in his mother’s home.

Before reviewing the husband’s appellate-contentions, we note that our review in a dissolution of marriage case is the same as it was in a divorce case. The appellate court must review the case de novo upon both the law and the evidence, giving due deference to the trial court’s assessment of the credibility of the witnesses. In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975).

The husband first contends the trial court erred in awarding the wife maintenance because there was no evidence to support the award under the statutory criteria. We disagree.

§ 452.335(1) permits a court to award maintenance only if the spouse seeking maintenance:

“(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
“(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

The husband concedes the first requirement is present in this case. Since there was no evidence at the hearing whether or not the wife was the custodian of a child whose condition or circumstances made it appropriate that she not seek employment, our inquiry must center on whether the wife was able to support herself through appropriate employment.

We believe the wife cannot be expected to support herself through employment. She was 45 years old at the hearing. During the first 27 years of the marriage she had worked exclusively as homemaker. Only during the last two years of the marriage had she been employed part-time at the nursery school, never netting more than $138 per month. The wife has only an eighth grade education, with no job training or job skills.

The wife’s illness forced her to quit work a month before the hearing, and it is not clear from the transcript whether she even had a job to which she could return. Her illness seems to be of a lingering type, and it is uncertain whether she will regain her health so as to be again able to seek employment. Finally, we note that the wife’s March 1974 estimated expenses were $387 household expenses (including $167 for mortgage payments) and $215 personal expenses, for a total of $602. The husband has not challenged the types and amounts of these expenses.

The husband’s second contention is that both the $200 monthly maintenance award and the $200 monthly child support award were excessive, since they equal almost half of the husband’s $830 monthly net income.

Section 452.340 lists some relevant (non-exclusive) factors the courts must consider in awarding child support:

“(1) The father’s primary responsibility for support of his child;
(2) The financial resources of the child;
(8) The financial resources of the noncustodial parent;
(4) The standard of living the child would have enjoyed had the marriage not been dissolved;
(5) The physical and emotional condition of the child, and his education needs; and
(6) The financial resources and needs of the noncustodial parent.”

We find that the amount of the award of child support was not excessive. There is no evidence that the two minor children had any independent financial resources. The wife’s financial resources, including the equity in the home and any future employment, clearly are insufficient to adequately support her two growing sons, whose estimated March 1974 monthly expenses were $355. The standard of living enjoyed by the children during the marriage was not one of luxury, and the standard of living will not be better after the dissolution. The one child was only eight years old at the time of the hearing, so he will require another ten years of primary and secondary education. Finally, we do not believe the child support and maintenance awards outstrip the husband’s ability to pay, especially (as we comment below) since his net monthly income does not include about $90 of voluntary payroll deductions for his two savings plans. See C. E. McM. v. A. V. McM., 506 S.W.2d 14, 16 (Mo.App.1974); Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975).

§ 452.335(2) lists several (non-exclusive) relevant factors for a court considering a maintenance award:

“(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age, and the physical and emotional condition of the spouse seeking maintenance;
(6) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) The conduct of a party seeking maintenance during the marriage.”

We find the amount of the maintenance award in this case was not excessive. The marriage lasted 28 years. The maintenance award most probably will not enable the wife (or husband) to equal the standard of living attained before the dissolution. We have already noted the 45-year-old wife’s poor physical health, limited formal education, and dim employment prospects. The marital property apportioned to the wife— the automobile, the home (subject to the mortgage), and the home furnishings—are not income producers. The husband testified concerning some alleged marital misconduct by the wife, but the evidence of the husband’s alleged misconduct was at least as strong. Finally, as noted above in the discussion of the child support award, we believe the husband can financially bear the maintenance payments.

The husband’s final contention is that the trial court’s apportionment of the marital property was inequitable, since the wife received 95% of all their property.

This 95% figure is misleading. The husband says the court “awarded” the wife $6000 of the $7000 their joint savings account once contained. But the evidence tends to show the wife withdrew this sum in early 1973, after the husband had stopped giving her and the children adequate financial support. During the remainder of 1973, the wife used $1200 of the amount for attorneys fees, and the remainder to purchase necessaries for herself and the children. The husband does not question how she spent the money.

The husband also has failed to list among his financial resources the value of the two savings programs to which he voluntarily contributes every month.

After carefully considering § 452.330, we find the disposition of marital property was equitable.

Affirmed.

WEIER, P. J., and RENDLEN, JJ., concur.

      . Two children are emancipated.


author: CLEMENS, Presiding Judge.

text:
    Ralph E. FLETCHER et ux., Respondents, v. Donald L. CUMMINGS, Appellant.
    No. 36678.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 20, 1976.
    Lawrence 0. Willbrand, St. Louis, for appellant.
    Jack F. Allen, St. Louis, for respondents.
   CLEMENS, Presiding Judge.

Three-count action for damages, brought by plaintiff-tenants against defendant-apartment manager, springing from constructive eviction. The jury found for defendant on Count I but gave plaintiffs actual and punitive damages on Counts II and III. Defendant appeals, contending the trial court erred in giving plaintiffs’ two damage instructions since each authorized recovery for “the occurrence of October 29.”

Plaintiffs’ verdict director on Count II submitted that on October 29 defendant wrongfully entered plaintiffs’ apartment . and “removed articles of personal property.” Their verdict director on Count III submitted that on the same date defendant “disturbed plaintiffs from their quiet and peaceful possession of the apartment” by removing all of plaintiffs’ property and the apartment’s front door. Each verdict director referred to a separate wrong.

The trial court gave two MAI 4.01 damage instructions. One told the jury if they found for plaintiffs on Count II they should award damages arising from “the occurrence of October 29.” The other damage instruction told the jury if they found for plaintiffs on Count III they, should award damages arising from “the occurrence of October 29.”

Superficially, this was confusing. The Notes on Use to MAI 4.01 warn of using the word “occurrence” where, as here, there is evidence of different occurrences: “. In such cases counsel will need to substitute some descriptive term which will properly limit the jury . . . .” That principle was followed in Homm v. Oakes, 453 S.W.2d 679 (Mo.App.1970) where plaintiff was seeking damages for one automobile collision but there was extraneous evidence of a second collision. To the same effect, see Vest v. City National Bank and Trust Company, 470 S.W.2d 518[1, 2] (Mo.1971).

This case differs from Homm' and Vest. In each of those eases there was evidence of a non-compensable occurrence. Not so here, but defendant argues that the two separate damage-instruction phrases, “the occurrence of October 29,” allowed the jury to make duplicate awards for the same occurrence. Arguably so. Heeding the quoted caveat of MAI 4.01’s Notes on Use, each damage instruction would require the use of “some descriptive term” instead of the word “occurrence.” Thus, the Count II damage instruction should have referred specifically to the removal of plaintiffs’ property, and the Count III damage instruction to disturbing plaintiffs’ possession of the apartment.

Here, the trial court was aware of possible confusion in the two damage instructions and, with counsel’s consent, took corrective action.

Rendering verdicts in this case was complicated. There were three counts for damages; two of them warranted adding interest and all three authorized punitive damages. Nine verdict forms were to be offered. In chambers, the trial judge proposed making an explanatory oral statement to the jurors concerning the several verdict forms. Both counsel agreed. The court did so, including in its explanation to the jury “. . . And then there are two claims, arising, the plaintiff has asserted, out of the incident alleged to have occurred October 29th, in which the Count Two is for the taking of the property and Count Three is for the plaintiffs’ claim in being wrongfully disturbed in the peaceful possession of the property.” (This in accord with plaintiffs’ separate verdict directors.) The court stated it was “talking to the jury . with consent of both counsel.” At the conclusion of its oral comment the court asked if counsel had any suggestions. Each said no.

Conceding error in the duplicate use of the words “occurrence of October 29” it was not reversible error. Defense counsel invited the error by acceding to the trial court’s explanation, in lieu of modifying the damage instructions. “. . .A party may not predicate error on a theory of law he himself has adopted.,” Morris v. Klein, 400 S.W.2d 461[4] (Mo.App.1966).

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: PER CURIAM:

text:
    George S. WILE and Retta Y. Akers Wile, Plaintiffs-Respondents, v. Marie D. DONOVAN and Jack Donovan, Defendants-Appellants.
    No. 9941.
    Missouri Court of Appeals, Springfield District.
    Jan. 26, 1976.

      William D. Hamblin, Brooks & Hamblin, Chartered, Overland Park, Kan., for plaintiffs-respondents.
    John M. Belisle, Morran D. Harris, Osceola, for defendants-appellants.
   PER CURIAM:

The appeal in Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974) was dismissed for “failure of the judgment [entered September 24, 1973] to dispose of the issues between the plaintiffs and defendant Jack Donovan.” Thereafter the parties repaired to the circuit court, plaintiffs filed a motion for leave “to Dismiss their cause of action against Defendant Jack Donovan,” and the court obliged via order filed January 30, 1975 (dated January 20, 1975), dismissing the cause “against Defendant Jack Donovan . . . without prejudice.” No new judgment was entered. In spite of the dismissal order, both defendants on January 31, 1975, filed a notice of appeal “from the findings and judgment entered in said cause on the 24th day of September, 1973, and on the 20th [sic] day of January, 1975.”

In the instant case the trial court’s dismissal order entered January 30, 1975, did not constitute a final judgment in the case nor a special order after final judgment from which an appeal is allowable under § 512.020, Y.A.M.S., and the order was “not transmogrified into a final judgment by being cognominated . as a ‘judgment’ in [defendants’] notice of appeal.” Williams v. Williams, 480 S.W.2d 525, 527 (Mo.App.1972). Of course, if the September 24, 1973 “judgment” was not a final judgment from which an appeal would lie (as so held in Wile v. Donovan, supra), a purported second appeal therefrom would not serve to change its spots or heal its deficiencies.

Plaintiffs have filed with us a motion for leave to file in the present case what purports to be a “Final Findings and Judgment Decree” entered by the trial court on January 16, 1976. But that judgment, if it be a final appealable judgment, will not aid or cure the judgment and order from which the present appeal is taken.

Plaintiffs’ motion is overruled and the appeal herein is dismissed.

All concur.


text:
    Thelma S. BUNCH and Charles Bunch, Plaintiffs-Respondents, v. James V. McMILLIAN and Empiregas Inc. of Cabool, a corporation, Defendants-Appellants.
    No. 9743.
    Missouri Court of Appeals, Springfield District.
    Jan. 27, 1976.
    Rich D. Moore, Moore & Brill, West Plains, for defendants-appellants.
    No appearance for plaintiffs-respondents.
   PER CURIAM.

The verdict of the jury was in favor of the plaintiffs. However, no judgment was entered on the' verdict. The minute or docket entry which appears in the transcript does not constitute a final judgment from which an appeal may be taken. State v. Henderson, 493 S.W.2d 31, 32[1] (Mo.App.1973) and authorities there cited. Anno. 73 A.L.R.2d 250 at p. 302. The docket entry merely summarized procedural steps which were taken on the day of the trial including the appearances, selection of the jury, opening statements, the offering of evidence, in-trial motions, the arguments, and the contents of the verdict. This court has no jurisdiction of this premature appeal. Peacock v. City of Dexter, 530 S.W.2d 272 (Mo.App.1975, Springfield District.)

The appeal is dismissed.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE ex rel. M. B., Relator, v. Richard J. BROWN, Judge, etc., Respondent.
    No. 37089.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 27, 1976.

      Whaley & McAuliffe, Clyde C. Farris, Jr., Clayton, for relator.
    Thomas W. Shannon, Pros. Atty., J. Glen-non McKenna, Asst. Pros. Atty., St. Louis, for respondent.
   WEIER, Presiding Judge.

This is an original proceeding in mandamus to compel the St. Louis Court of Criminal Correction to “expunge, eradicate and physically destroy” all of that court’s records of M. B.’s arrest, trial and conviction for the illegal possession of marijuana. The controversy arises out of the interpretation of the word “expunge” as used in § 195.290, RSMo 1969. This section authorizes an offender who was twenty-one years of age or younger at the time of the offense to apply to the court which sentenced him to expunge from all official records any recordations of his arrest, trial and conviction after completing his full probationary period. State of Missouri v. Kraus, 530 S.W.2d 684, No. 59,135 (Mo.banc 1975). As stated in Kraus: “The basic intent of the legislature when it enacted Section 195.290 was to provide a procedure whereby a youthful offender under Chapter 195, who had been convicted and placed on judicial probation and who was shown to have been free from further transgression could move to have the record expunged and be relieved from the life-long burden of a criminal conviction with all of its detrimental results.”

After completing his probationary period, relator filed a motion for an order to expunge the records, concerning his arrest, trial and conviction. The suggested order submitted to the court with the motion required that these records be “expunged and eradicated”. The court modified this by adding the phrase “and sealed to be opened on court order only”. Thereafter relator filed his petition for mandamus in this court, asking us to require the court to “expunge, eradicate and physically destroy” all of his records concerning his arrest, trial and conviction for illegal possession of marijuana. To our alternative writ, respondent has moved to dismiss the writ for the reason that the order of the court was an appealable order and that the proper remedy was therefore by direct appeal to this court and not by mandamus. For his return to the alternative writ, respondent judge admits the facts as alleged in the petition with respect to the eligibility of M. B. to have his records expunged but contends that the legislature did not intend by the term “expunge” the total destruction of records established by statutes, some of which require the clerk of the Court of Criminal Correction to make and certify to the auditor of St. Louis City a detailed statement of all fines, penalties and forfeitures imposed by the court. Respondent urges, to support his position, that §§ 483.-395, 483.410, 483.530, 483.541 and 483.545, RSMo 1969, are mandatory in their terms and require certain actions to be taken by the clerk of the court, which actions would be impossible to carry out if the records were to be physically destroyed. The respondent further points out that it would be difficult to audit the court’s books if such records were totally destroyed.

We first consider respondent’s contention that the order of the court was an appealable order and that mandamus is not the proper remedy. As a general rule, mandamus will not lie where there is another plain, speedy and adequate remedy at law. State ex rel. Coffman v. Crain, 308 S.W.2d 451, 454[3] (Mo.App.1958). But it is well settled that this other remedy must be equally as convenient, beneficial and effective as mandamus. State ex rel. Reis v. Nangle, 349 S.W.2d 508, 512[6] (Mo.App.1961). Here the court had granted the relief requested in relator’s motion to expunge. In addition to the relief requested, the court had sealed the file and placed it in protective custody. If this went beyond the discretion allowed the court by the statute, it placed the court in the position of doing a nondiscretionary act contrary to the directions of the law. If respondent was without jurisdiction to do this nondiscre-tionary act, then mandamus is a proper remedy to correct such lack of jurisdiction. State ex rel. Apco Oil Corporation v. Turpin, 490 S.W.2d 400, 407[11] (Mo.App.1973). In view of our determination of the case on its merits, mandamus was the proper remedy-

Relator, to sustain his position that the records be physically destroyed, contends that the definition of “expunge”, as contained in Black’s Law Dictionary (West Publishing Company 1951), page 693, should be followed. There the term is defined as: “Means to destroy or obliterate; it implies not a legal act, but a physical annihilation. Andrews v. Police Court of City of Stockton, Cal.App., 123 P.2d 128, 129 [1942], To blot out; to efface designedly; to obliterate; to strike out wholly. Webster.”

In Andrews, the source of the first part of Black’s definition, the lower court had denied a motion to expunge records of a guilty plea on the grounds that the court had no jurisdiction to consider the case. Mandamus was sought to compel the court to expunge from its records a void judgment. The writ was denied on the grounds that no statute authorized this relief. In discussing the word “expunge”, the court stated: “The latter term means to destroy or obliterate. Webster’s New International Dictionary, 2d Ed. It implies not a legal act, but a physical annihilation.” 123 P.2d at 129. This definition has been followed since in Thornbrough v. Barnhart, 232 Ark. 862, 340 S.W.2d 569, 571 (1960) and Application of Brandon, 131 N.Y.S.2d 204, 206 (Sup.Ct.1954). In Dubnoff v. Goldstein, 385 F.2d 717, 724 (Second Circuit 1967), however, the word is construed to mean “deleted” or “cancelled”. There the word acted upon a court record. In Natalizia v. Atlantic Tubing & Rubber Co., 81 R.I. 515, 105 A.2d 190, 192 (1954), where a motion to expunge a medical record had been filed in a case, the court held the term “expunge” to mean “to blot out, efface, obliterate, or cancel.”

Webster’s Third New International Dictionary ascribes the origin of “expunge” to the Latin verb “expungere” meaning “to mark for deletion by dots placed above or below”. It gives as its primary meaning “to strike out, obliterate, or mark for deletion * * * to obliterate * * *It also gives as a second meaning physical destruction or annihilation.

In considering the intent of the legislature when it used the term “expunge” in § 195.290, supra, we follow the primary rule of statutory construction to ascertain intent from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning. State v. Kraus, supra, 530 S.W.2d 684, No. 59,135 (Mo.banc 1975). Our statute provides that a youthful offender who has successfully completed his period of probation may apply to the court which sentenced him “for an order to expunge from all official records * * * all recordations of his arrest, trial and conviction.” By use of the word “from”, it is evident that the legislature intended “expunge” to mean “to strike out, blot, obliterate, delete or cancel” that part of the record which identifies it with the offender. It does not call for destruction or annihilation of the records themselves. On the other hand, the requirements of the statute are not met by placing the records in an envelope, sealing them, and retaining them in protective custody. As a practical matter, all records which must be retained by the court and which are identified in any way with the arrest, trial and conviction of the offender, should have all references to him eliminated. This may be done by striking out, blotting, obliterating or in any permanent manner completely concealing or excising the name of the offender, his address and any other identification which might associate him with the records of the court. This may be done through the use of ink, chemical or mechanical means just so long as there is no way to read defendant’s name or address, or any other identifying words or numbers. All other papers which are not needed for the court’s records and files may be destroyed, or, if the court needs certain portions of them, then the same procedure should be followed with respect to them. No part of the file or record should be placed in an envelope or other package with the offender’s name or identification thereon and kept under protective custody.

Once the court here determined relator had successfully completed his probationary period and was entitled to relief under § 195.290, relator was entitled to an order to expunge from all official records all recordations of his arrest, trial and conviction. When the court also determined that the records should be sealed and opened only under court order, it was directing and authorizing action beyond that mandated by the statute. In so doing, this placed the court in the position of doing a nondiscretionary act contrary to the directions of the law. This being true, our peremptory writ of mandamus should issue to correct this excess of jurisdiction.

Respondent’s motions to dismiss and quash the alternative writ of mandamus are denied. Relator’s motion for judgment on the pleadings is denied. The peremptory writ of mandamus shall issue in accordance with this opinion.

DOWD and RENDLEN, JJ., concur.


text:
    Richard James BAKER, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36555.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 27, 1976.
    Theodore S. Schecter, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, John W. Buechner, St. Louis, Courtney Goodman, Jr., Pros. Atty., Eugene H. Pahrenkrog, Jr., Asst. Pros. Atty., George R. Westfall, Clayton, for plaintiff-respondent.
   PER CURIAM.

Upon his plea of guilty to the charge of possession of a controlled substance in Schedule III, Movant was sentenced to one year in the county jail. The court stayed execution and placed Movant on probation for a period of four years. Approximately six months later Movant filed his Motion to Withdraw Plea of Guilty and to Vacate, Set Aside or Correct Sentence in accordance with Rule 27.25 and 27.26. Movant’s motion alleged that he did not have effective assistance of counsel and that the plea was not voluntary because Movant was induced to enter the plea of guilty upon the assurance of counsel that he would receive a suspended sentence.

After an evidentiary hearing the court made the following entry:

“Defendant’s Motion to Withdraw Plea of Guilty and to Vacate, Set Aside or Correct Sentence heretofore heard and submitted, is denied.”

Our review upon an appeal with respect to Rule 27.26 is limited “. . .to a determination of whether the findings, conclusions and judgment of the trial court is clearly erroneous.” 27.26(j). Dill v. State, 525 S.W.2d 437 (Mo.App.1975).

By paragraph (i) of Rule 27.26 the trial court is required to “. . . make findings of fact and conclusions of law on all issues presented . . .”

The entry of the court in this case is not sufficient to permit Movant to properly perfect his appeal or for this court to undertake the limited review provided under Rule 27.26(j). State v. McCullough, 493 S.W.2d 353 (Mo.App.1973).

This cause is remanded to the trial court for findings of fact and conclusions of law upon all of the issues presented by the Movant.

All Judges concur.


author: STEWART, Judge.

text:
    In the Matter of the ESTATE of Charles BONACKER, Deceased. Louise KURKA, Plaintiff-Appellant, v. Howard KREIENHEDER and Carl Bonacker, Co-executors of the Estate of Charles Bonacker, Deceased, Defendants-Respondents.
    No. 36683.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 27, 1976.

      LeRoy Crouther, Jr., Thad F. Niemira, St. Louis, for plaintiff-appellant.
    Louis Jerry Weber, Thurman, Nixon, Smith, Howard, Weber & Bowles, Hillsboro, for defendants-respondents.
   STEWART, Judge.

This action was originally commenced as a claim against the Estate of Charles Bo-nacker by Louise Kurka. By stipulation the matter was transferred to the circuit court and tried as a discovery of assets proceeding pursuant to section 473.340, RSMo Supp. 1973. The cause was submitted to the court upon a “Stipulation of Facts and Issues”. The asset in question is a checking account titled “Charles Bonacker or Louise Kurka.” The trial court held that the bank account was the property of Charles Bonacker and that a joint tenancy had not been created, and entered judgment in favor of defendants, executors of the estate of Charles Bonacker.

The account was opened on May 14,1969, by decedent in his name alone with his money. On February 9, 1971, Charles Bo-nacker, acting alone, changed the title of the account to “Charles Bonacker or Louise Kurka.” Signature cards for the joint account were never signed. All subsequent deposits were made by decedent with his money. All withdrawals were made by him. Decedent had possession of the deposit booklet and all unused checks at the time of his death.

The parties, by stipulation, have framed the one issue which was determined by the trial court and which is now to be determined by this court. The issue is, “Whether claimant is entitled to the proceeds of the checking account solely by reason of the account being titled ‘Charles Bonacker or Louise Kurka’ on the master file card in the bank’s records.”

By reason of In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972) our review is further narrowed to a determination of whether the title of the account, “Charles Bonacker or Louise Kurka” brings it within the purview of § 362.470, RSMo. 1969. If the statute is complied with in this case the survivor will become the owner of the account. In re Estate of LaGarce, supra, at page 501.

The material portion of § 362.470, the governing statute, reads as follows:

“When a deposit is made by any person in the name of the depositor and any one or more other persons, whether minor or adult, and in form to be paid to any one or more of them, or the survivor or survivors of them, the deposit thereupon and any additions thereto made by any of these persons, upon the making thereof, shall become the property of these persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any of them, or to the survivor or survivors of them; . . . ”

This question was specifically ruled against plaintiff’s contention in Ison v. Ison, 410 S.W.2d 65 (Mo.1967) where it was said at page 70:

“The deposit in this case was made by Clarence, and it was in the names of ‘Clarence Ison or Orville M. Ison.’ This deposit was not in form ‘to be paid to either, or the survivor of them,’ and therefore did not comply with Section 362.470, ...”

An account in the name of one person or another without more does not bring the account within the purview of § 362.470 and calls for the result reached in Ison v. Ison, supra.

The judgment is affirmed.

CLEMENS, P. J., and KELLY, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Harry PLANT, Defendant-Appellant.
    No. 35840.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 27, 1976.
    Shaw & Howlett, Terry J. Flanagan, William J. Shaw, Public Defender, Mary E. Fiser, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Frank J. Kaveney, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for attempted burglary second degree. § 560.045 RSMo 1969. He was sentenced to five years imprisonment by the trial court pursuant to the Second Offender Act. § 556.-280 RSMo 1969. We affirm.

A jury could have reasonably found that on the evening of January 1, 1968, the Brentwood police, alerted by a citizen, went to the rear of a retail establishment and discovered evidence of an attempted burglary. Shortly thereafter the police arrested the defendant and a companion a short distance from the store. The arresting officer immediately advised the defendant of his constitutional rights; the defendant replied that he understood his rights but did not want an attorney. At the police station the defendant was again advised of his constitutional rights, and again he said he understood those rights. The defendant then made an oral statement, saying he had used a screwdriver to try to break into the store in order to “steal some stuff.” The defendant then voluntarily led the police to the store and identified it as the place he had attempted to burglarize. He also helped the police in a two and one-half hour unsuccessful search of the surrounding area for the screwdriver he had discarded. Back at the police station the defendant, after again being informed of his constitutional rights, signed a written confession that he had used a screwdriver to try to pry open a door to get money.

Although defendant raises four issues on appeal, we do not reach the merits of the first three. The first two points on appeal were not raised in the defendant’s motion for a new trial, and thus they are not preserved for appellate review. Rule 27.20(a); State v. Henderson, 510 S.W.2d 813[12] (Mo.App.1974).

Defendant’s third point on appeal is that the trial court erred in denying his motion to suppress and exclude his “confessions of fact and statements against interest” because his statements were not given voluntarily. We do not reach this issue because the supporting argument in defendant’s appellate brief fails to comply with Rules 84.-04(a) and (e).

The defendant’s “argument” under this point consists of the following:

“On the question of voluntariness the appellant would ask this Court to review pages 2 through 78 of the transcript. Defendant’s motion to suppress and consider the ‘totality of the circumstances’ surrounding how defendant’s statements were obtained as was dictated in [citing four cases]. Appellant also asks this Court to review the testimony of his mother and sister concerning his physical appearance when considering all the facts.”

Defendant’s “argument” is really no argument at all, as envisaged by Rules 84.04(a) and (e), but merely a request that we review the transcript. This court has no duty to search the record in order to ascertain specific arguments in support of defendant’s contention that his confession was involuntary. See Butterbaugh v. Pub lic Water Supply District No. 12, 512 S.W.2d 445[3] (Mo.App.1974). The defendant’s argument is totally unproductive of any assistance to this court and is completely unacceptable under either the letter or intent of the appellate review rules. Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882[9] (Mo.App.1974).

We have, sua sponte, examined the record to determine whether to invoke the plain error doctrine as provided for by Rule 27.20(c). We do not find that injustice or miscarriage of justice will result from the refusal to invoke the plain error doctrine. To the contrary, we are convinced that the transcript demonstrates that there was overwhelming evidence of defendant’s guilt. State v. Hurtt, 509 S.W.2d 14 (Mo.1974).

Defendant’s final contention is that he was denied the right to a speedy trial through the state’s failure to comply with the law governing the Agreement on De-tainers. §§ 222.160-.220 RSMo Supp.1973. We disagree.

The Missouri Agreement on Detainers law became effective on June 21,1971. Article I of the statute finds that “charges outstanding against a prisoner, detainers based on untried indictments, informations or. complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.” Accordingly, Articles III through IX specify procedures whereby a prisoner can be transported from a state in which he is presently incarcerated to a state where he will be tried for pending charges.

We believe the state in this case followed the applicable procedural steps in a timely fashion. A “Request for Temporary Custody, Form V,” dated September 19, 1972, was initiated by the state on December 1, 1972. The court file indicates the following: “12/l/’72 Agreement of Detainer filed, Form V.” Pursuant to Article IV, the court transmitted it to the prison authorities in .Tennessee, where defendant was imprisoned for burglary. The defendant testified that “on December 5, 1973 [1972], I received a couple of records of request for temporary custody.”

Once a prisoner has been informed that a detainer has been filed, two courses of action are open to him, both of which affect the time of his upcoming trial. Under Article III, if the prisoner asks both the prosecutor and the court to make a final disposition of the charge, then he must be brought to trial within 180 days of the delivery of his request. If the prisoner does not make this request for final disposition, Article IV provides the trial must be commenced within 120 days of his arrival in the receiving state.

At a pretrial hearing the defendant mentioned he had written a letter to a prosecuting official after he learned of the detainer, but he then denied ever requesting a final disposition of the charge. Accordingly, under Article IV, defendant had to be tried within 120 days of his arrival in Missouri.

The defendant was brought back to Missouri on June 26, 1973. The trial was set for August 27, 1973, but the defendant requested and was granted a continuance until the actual trial date of September 12, 1973. The defendant’s trial thus began 78 days after his return to Missouri, well within Article IV’s 120-day limit.

Article V provides that the court must dismiss the charges if (a) the state either fails to or refuses to accept temporary custody of the prisoner, or (b) if the prisoner is not brought to trial within the time limits specified in Articles III and IV. There is nothing in the record to show that the State of Missouri either failed to or refused to accept the temporary custody of the prisoner. Likewise, the defendant’s trial was commenced 78 days after his arrival in the State of Missouri which is compliance with the Agreement on Detainers Law. Sections 222.160-220 RSMo Supp.1973.

The defendant suggests the State of Missouri was responsible for an unduly long delay in bringing him back to Missouri. The record is not clear why there was a seven-month gap between the filing of the detainer and the date defendant was returned to Missouri. However, there is nothing in the record to indicate that officials of the State of Missouri were responsible for the delay.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concurs.

      . Defendant had 8 prior felony convictions.

      . The first point is that the “court erred in overruling defendant’s motion for judgment of acquittal made at the close of the state’s evidence due to the fact that the state had not offered sufficient evidence to make a submissible case.”
      After defendant’s motion for judgment of acquittal made at the close of the state’s evidence was denied, the defendant offered evidence in his behalf. By so doing, he waived any claim of error as to this motion. State v. Tumbough, 497 S.W.2d 856[1] (Mo.App.1973).
      Defendant’s second point is that the “court erred in overruling defendant’s motion to suppress and exclude confessions of fact and statements against interest in that: A) Said statements were not admissible since no corpus delecti had been established prior to their introduction.”


text:
    Eugene O. RICHTER, Appellant, v. Laura J. RICHTER, Respondent.
    No. 35674.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 27, 1976.
    Maniscalco, Clancy, Pittman & Bagot, George D. Pittman, Jr., Clayton, for appellant.

      Brown & Freyman, David B. Freyman, St. Louis, for respondent.
   RENDLEN, Judge.

Plaintiff-husband appeals a June 25,1973 order of the Circuit Court modifying a divorce decree granted on the 13th day of December, 1971. Six months following the divorce, defendant-wife filed her motion to modify seeking an increase of alimony and child support, and the court, sustaining this motion, increased the award of alimony from $40 to $100 per month and the award of child support from $40 to $100 per month for each of the four minor children in respondent’s custody. This action was tried, and determined prior to the New Dissolution of Marriage Act and is governed by the former law.

We review the case on the law and evidence giving due regard to the trial court’s judgment as to credibility of witnesses. Rule 73.01, V.A.M.R. While the judgment of the trial court should not be set aside unless erroneous, such is not a mandate prescribing judicial “blindness” and in reviewing the case de novo we are cognizant of our duty to reach our own conclusions based on the law and the evidence presented by the case, In re Marriage of Powers, 527 S.W.2d 949, 954[7] (Mo.App.1975). The court is to enter such judgment as the trial court should have entered, Glaves v. Glaves, 523 S.W.2d 169, 172[8] (Mo.App.1975). Therefore, when an appellate court finds the award inadequate, it will order the amount increased. See Phillips v. Phillips, 219 S.W.2d 249, 276[10] (Mo.App.1949). By the same token if we find the amount awarded excessive, it is our duty to order a reduction. S. v. S., 514 S.W.2d 1, 8[10-13] (Mo.App.1974).

On examination of the entire record we find that increasing alimony for the defendant-wife from $40 to $100 is not erroneous but the order increasing child support from $40 to $100 per month per child is excessive and a proper award under the circumstances here presented is $90 per month per child.

Evidence of appellant’s income was in part vague and contradictory. As sole owner and operator of a business known as “Richter Equipment Company,” many of his personal expenses are paid by the business. Appellant in his brief contends his annual income was $10,490 but testified to an income for federal tax purposes of approximately $12,000; appellant’s attorney admitted his client’s income was in the range of $13,000. Respondent contends many of the items paid by appellant’s business were personal expenses and should be accounted as income on his part, claiming that appellant’s true spendable income was approximately $18,000. At the time of the divorce appellant’s available income was $12,000 to $13,000.

It is significant appellant concedes respondent’s allegation as to need for additional child support. In his brief appellant states: “Appellant confesses and stipulates that the testimony and evidence adduced sufficiently supported respondent’s allegation of an increased need for more money to adequately support the children in her custody.” While the four younger children are and have at all times been in respondent’s custody, the record shows appellant has custody of the parties’ 17 year old daughter and 15 year old son. Considering all the circumstances of the parties as they have changed since the original decree of divorce, including the needs of the children, health problems, the diminished buying power of the dollar, respondent’s deteriorating financial condition contrasted with the improved financial status of appellant, we feel that the decree was in most regards supported by the record. There was no abuse of discretion by the trial court relating to the increased award of alimony but the increased award of child support is excessive. A detailed recitation of all the facts and figures in evidence would serve no useful purpose for the disposition of the cause and a lengthy opinion would have no preceden-tial value, particularly since rules relating to this type case have been oft repeated and in .view of the change in the law of Missouri relating to cases of this character occurring after January 1, 1974. Therefore, we affirm the trial court’s decree in so far as it increases the award of alimony to $100 but remand with directions to order child support for the four minor children born of the marriage now in the custody of respondent in the sum of $90 per child per month.

WEIER, P. J., and DOWD, J., concur.


author: HOGAN, Judge.

text:
    Peggy Lou PENDLETON, Respondent, v. Tommy Lee PENDLETON, Appellant.
    No. 9849.
    Missouri Court of Appeals, Springfield District.
    Jan. 28, 1976.
    Dan L. Birdsong, Thomas & Birdsong, Rolla, for appellant.
    Melvin E. Carnahan, Rolla, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Appeal is taken from the child custody provisions of a decree dissolving the marriage of Peggy Lou Pendleton, mother of the children, and Tommy Lee Pendleton, their father. The trial court awarded custody of the parties’ two minor children to their maternal grandparents. Neither appellant nor respondent questions the other provisions of the decree.

Respondent’s petition alleges jurisdictional residence, her marriage to appellant in 1961, her separation from appellant on July 30, 1974, the existence of two minor children born of the marriage, and the irretrievable breakdown of the marriage. Prayer of respondent’s petition is for dissolution of the marriage, custody of the children and for general relief.

Appellant’s answer and crossbill admit the substantive allegations of the petition except as to custody of the children. Affirmative allegations of the crossbill are that the respondent is unfit to have custody of the children and that respondent deserted the appellant. Prayer of the answer and crossbill is for dissolution of the marriage, custody of the children and for “such further orders as to property and visitation as are just and proper in the circumstances.”

Trial of the cause to the court was had on September 23, 1974, and on that day the trial court entered a decree of record reciting personal appearance of the parties, jurisdiction of the res and a finding that the marriage was irremediably broken. The court awarded custody of the two minor children to their maternal grandparents; ordered appellant to pay the sum of $25 per week to the grandparents as child support; provided both parties should have reasonable rights of visitation, and then ordered:

“[T]hat property and property rights of the parties hereto should not be ordered distributed at this time but be left for the later settlement and distribution of the parties themselves.” (Emphasis added)

Rule 81.01, V.A.M.R., states that the right of appeal shall be as provided by law. Section 512.020, RSMo 1969, V.A.M.S., limits the general right to appeal, with exceptions not here material, to final judgments or special orders after final judgment and provides that an appeal taken before final judgment does not prejudice the right to review after final judgment is entered. Rule 81.06 provides that in bench-tried cases the court may sever a particular claim made in a cause, try that claim, and designate its judgment final and appeala-ble. No such order or separate trial was had here; we need not and do not decide whether, under our Divorce Reform Act, Laws of Mo.1973, p. 470, the issues of dissolution, disposition of property, and custody and maintenance of children are severable. See Putnam v. Fanning, 495 S.W.2d 175, 176[2][3] (Ky.1973). The record before us shows on its face that the trial court has not exhausted its jurisdiction, and therefore it can, upon proper notice, vacate, modify or correct any part of the decree entered. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232[5] (Mo. banc 1969). We do not believe the trial court could abdicate its jurisdiction to decide the parties’ property rights and do not so hold; we read the quoted part of the decree as leaving the determination of property rights to a written agreement between the parties, to be approved by the trial court. In any event, the decree is not final, the trial court has not exhausted its jurisdiction, and we may not exercise ours. Green v. Green, 240 S.W.2d 741, 742-743[3, 4][5-7] (Mo.App.1951).

The appeal is dismissed.


author: FLANIGAN, Judge.

text:
    Billy J. GIBBS and Sheila Gibbs, Plaintiffs-Respondents, v. William W. DOUGLAS and Betty Douglas, Defendants-Appellants.
    No. 9746.
    Missouri Court of Appeals, Springfield District.
    Jan. 28, 1976.
    Darrell Deputy, Jr., Lebanon, for defendants-appellants.
    David Donnelly, Donnelly, Baldwin & Wilhite, Lebanon, for plaintiffs-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Plaintiffs, as buyers, contracted with defendants, as sellers, for the purchase of land in Laclede County, Missouri. The purchase price was to be paid in installments over three years during which defendants were to, and did, remain in possession. At the end of the contract period defendants remained in possession as lessees of plaintiffs under an oral lease.

The petition sought specific performance and damages. The counterclaim sought “quiet title” relief. The judgment of the circuit court of Laclede County awarded plaintiffs specific performance, adjusted the financial rights of the parties and denied defendants relief on the counterclaim. Defendants appeal from that portion of the judgment awarding specific performance.

Defendants assert that the trial court erred in awarding specific performance because:

1. “There was no clear, definite, binding contract upon which to base specific performance.”

2. “Any agreement which was reached, was abandoned and rescinded by the actions of the parties.”

3. “There was a material breach of the contract by plaintiffs.”

4. “There was no timely offer of performance of essential contract provisions by plaintiffs.”

Review of the transcript, the 63 exhibits attached thereto and the briefs discloses that each of the four assertions lacks factual support.

This court determines that the following circumstances exist and are dispositive of this appeal: the judgment of the trial court is based on findings of fact which are not clearly erroneous, no error of law appears, and an opinion would have no precedential value.

In compliance with Rule 84.16 V.A.M.R. the judgment is affirmed.

All concur.