author: ROBERT R. WELBORN, Special Judge.

text:
    Norris J. WAITE and Louisa Waite, Appellants, v. CITY OF ELDON, a Municipal Corporation, and Missouri Pacific Railroad Company, a corporation, Respondents.
    No. KCD 29227.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Robert J. Quigley, Eldon, for appellants.
    David A. Yarger, Woolsey & Yarger, Versailles, Kenneth L. Oswald, Eldon, for respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Controversy over title to land upon abandonment of railroad, claimed by plaintiffs as adjacent landowners.

In 1881, a predecessor of the Missouri Pacific Railroad Company acquired a 100-foot right-of-way for the construction of a railroad over land located in the N W ¼ S W 34-42-15, Miller County, Missouri. A railroad was constructed and operated on the right-of-way. In June, 1930, Missouri Pacific acquired from Harvey and Franklin a strip of land containing 2.0 acres, more or less, immediately adjacent to its previously acquired right-of-way. This tract was 100 feet wide and 893.21 in length, measured along the northwesterly line of the established right-of-way.

In 1918, Vanosdoll acquired land adjacent to and bounded on the northwest by the southeast boundary of the Missouri Pacific 100-foot right-of-way. Vanosdoll conveyed an 80-foot strip bounded on the northwest by the southeast boundary of the Missouri Pacific right-of-way to the State of Missouri for right-of-way for U.S. Route 54.

Vanosdoll subdivided a portion of the property owned by him and in 1952, Norris Waite and Louisa Waite, husband and wife, acquired from Vanosdoll Lots 4, 5, 6 and 7 of Vanosdoll’s Second Addition to the City of Eldon. Lots 5 and 6 were bounded on the northwest by the southeast right-of-way line of Route 54.

At sometime not clearly shown by the record here the City of Eldon acquired the land that lay to the northwest of the two-acre tract acquired by the Missouri Pacific in 1930.

In 1962, the Missouri Pacific abandoned its operations in the area in question and took up the track which had been laid on the original 100-foot right-of-way. In 1964, Missouri Pacific gave the City of Eldon a quitclaim deed which apparently included all or part of the land here in controversy. Missouri Pacific has disclaimed any interest in the land in question.

In 1972, the Waites filed this action, claiming ownership of 50 feet of the original 100-foot right-of-way which, but for the intervention of Route 54, would have adjoined their property lines as extended. They also claimed an additional 50 feet in that portion of the original right-of-way which lay adjacent to the 100-foot strip acquired by Missouri Pacific in 1930 and which would have been within the boundaries of the Waites property as extended.

Upon trial to the court, the claim of the Waites to 50 feet of the original right-of-way was upheld but the claim to the further 50 feet was denied. The Waites have appealed.

In this court, the position of the Waites is that their property adjoined railroad right-of-way which was 100 feet in width in part and 200 feet in part and that they were entitled to be adjudged the owners of one half of the abandoned right-of-way. They contend that the trial court erred in considering the originally acquired 100-foot right-of-way and the second 100-foot tract separately.

The city has not appealed and does not here assert the claim advanced by it in the trial court that the railroad was the owner in fee of the lands in question and that it acquired the interest of the railroad by quitclaim deed, a claim rejected by the trial court which expressly found that railroad acquired a fee in neither tract. However, it is clear that as to the land in dispute on this appeal, the railroad did acquire a fee. The 1930 deed from Harvey and Franklin to Missouri Pacific is unconditional. It recites a consideration of $400.00. Nowhere in the deed, except by reference in the description to the adjacent railroad property, is the word right-of-way to be found. In these circumstances, the deed conveyed the fee, rather than an easement, Powell v. St. Louis County, 446 S.W.2d 819 (Mo.1969); Coates & Hopkins Realty Co. v. Kansas City Terminal Railway Co., 328 Mo, 1118, 43 S.W.2d 817, 822[9] (Mo.banc 1931). Therefore arguments based upon the assumption that the 1930 deed gave the railroad only an easement are irrelevant and the trial court properly denied appellants an interest in the property.

Even accepting the correctness of the trial court’s finding that an easement was granted in the 1930 deed would not aid appellants. The evidence is clear that the 1930 conveyance was taken wholly from Harvey and Franklin’s property. “Where an easement only is received by a railroad company, the same rule should apply to the lands used for railroad purposes and later abandoned as applies to a public highway. * * * If a highway is taken wholly off one man’s property and such highway is later vacated, the use of the land goes back to the original owner, or his grantees, freed from the public use or easement. It is in the absence of evidence to the contrary that the title to the fee is presumed to be in the abutting landowners and the title of each extends to the center of the way. This presumption may be rebutted by evidence to show that the entire way has been taken from the land of only one of the abutting owners.” Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 654[14-15] (1941).

Appellants argue that the acquisition of the 100-foot strip in 1930 cannot be viewed separately and that the rights of the parties must be adjudicated on the basis of a 200-foot right-of-way in that area which existed at the time that the appellants and the respondent acquired the abutting property. Appellants’ rights as abutting landowners were acquired by way of conveyances by their predecessors in title. The 1918 conveyance to Vanosdoll carried with it the underlying fee to the center of the abutting railroad right-of-way or 50 feet. Vanos-doll’s conveyance to appellants, insofar as the right-of-way was concerned, carried no more than Vanosdoll had received, i. e., the underlying fee to 50 feet of the right-of-way. The fact that the right-of-way was enlarged to 200 feet in part by an acquisition wholly from another landowner did not extend Vanosdoll’s underlying fee and the fact that the broadened right-of-way was in existence in 1952 when appellants acquired the property could not confer on them any greater interest than was held by their grantor.

In the case of Springs v. Cantrell, 539 S.W.2d 318, 321[3] (Mo.App.1976), the court did speak of an “existing railroad right of way” adjacent to the contesting parties’ lands at the time that each acquired his abutting property. However, the court was there distinguishing between acquisition with an existing railroad right-of-way and acquisition after the right-of-way had been abandoned. Nothing in the holding of that case supports the argument here advanced by appellants.

Appellants contend that the trial court erred in adjudging their interests “subject to existing roads.” They contend that the status of roads on the property was outside the scope of the pleadings and that respondents were required, in order to place that question in issue, to plead as an affirmative defense the existence of easements for road purposes.

Appellants’ petition alleged a portion of the land claimed by them had been used by the City of Eldon “as a public thoroughfare.” The city’s answer admitted that it was using a portion of the property “as a public thoroughfare.” There was evidence, without objection, relating to the existence and maintenance of the streets for a period of at least more than 30 years.

Considering the nature of a suit to quiet title, the pleadings were sufficient to authorize the trial court to adjudicate the existence and status of roadways over the land in question. Raymond v. Love, 192 Mo.App. 396, 180 S.W. 1054, 1057-1058[2, 3] (1915).

Appellants contend that there is no basis for the trial court’s adjudication that their interests are subject to “existing roads.” The evidence did not show how such roads were established. However, it did show that they had been in existence far beyond the period for acquisition by the public of an easement for road purposes. Terry v. City of Independence, 388 S.W.2d 769, 774-775[6 — 8] (Mo.1965).

Appellants assert that no easement by prescription may arise against them because their interest in the railroad right-of-way prior to its abandonment as such was a reversion in fee, and statutes of limitation did not begin to run against them until their right of possession ripened upon abandonment by the railroad. The appellants and their predecessors in title were the owners in fee to the center of the right-of-way, subject to the easement for railroad purposes. Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 655[16] (1941). As such they had the right to maintain an action to prevent use of the property for purposes inconsistent with the easement which had been granted. Thomas v. Hunt, 134 Mo. 392, 35 S.W. 581, 582-583 (1896).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    Richard C. and Philancy C. HEDGES et al., Appellants, v. COUNTY COURT FOR RAY COUNTY, Missouri, et al., Respondents.
    No. KCD 29516.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Max VonErdmannsdorff, VonErdmanns-dorff, Zimmerman, Gunn & Trimble, Kansas City, for appellants.
    Harold L. Fridkin and Richard D. Rhyne, of Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for respondent Crystal Lakes.
    David L. Busch, Richmond, for respondent County Court for Ray County.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The appellants (landowners) brought this action against the County Court of Ray County, Missouri and its members (Court); the Crystal Lakes Development Corporation and the Trustees of Crystal Lakes Subdivision (Crystal), wherein they sought a writ of mandamus, injunction and damages. The relief sought by mandamus was a direction to the Court to set aside its order closing and vacating a county road, as described in metes and bounds in the petition. The case went on change of venue from Ray County to Platte County, Missouri.

After the pleadings were filed and the issues made, Crystal filed its Motion to Dismiss the Petition for Mandamus, upon the grounds that mandamus would not lie under the facts as shown by the record inasmuch as the plaintiffs had an adequate remedy at law, the acts of the Court in vacating the road were judicial or quasi-judicial and were a determination of facts and law by an administrative body, and the order of the Court was regular on its face and not subject to collateral attack in a proceeding in mandamus. The other defendants later joined in this motion. The Court below sustained the motion to dismiss, without stating any reasons, and this appeal followed.

The landowners raise two points on appeal, namely, (1) they did not have any remedy by appeal since the Court lacked jurisdiction to make the order vacating the road because it did not follow the procedures under § 228.110 RSMo 1969 and thus, the order was subject to collateral attack by mandamus; and (2) the landowners had no notice of the proceedings in the Court nor of its order vacating the road and to limit their remedy to appeal from such order would deprive them of their constitutional right to due process.

This Court is mindful that in reviewing the propriety of the trial court’s action in sustaining the motion to dismiss all properly pleaded facts in the petition and all favorable inferences of fact which may be drawn therefrom must be taken as true. Dolan v. Ramacciotti, 462 S.W.2d 812, 814[1] (Mo. banc 1970); Collins v. Vernon, 512 S.W.2d 470, 475[5] (Mo.App.1974). Further, all pleadings shall be construed to do substantial justice. Rule 55.24. Finally, the propriety of the dismissal depends upon whether substantial legal principles are invoked on which appellant is entitled to relief. Brennaman v. Andes & Roberts Brothers Construction Company, 506 S.W.2d 462, 463[1] (Mo.App.1973).

When so viewed, the landowners’ petition discloses that there are seventeen plaintiffs who allege that they are owners of property adjacent to and abutting the road in question; that this road has been in continuous public use since before 1917; that it has been graded and maintained by the County for the benefit of the public as well as the abutting and adjoining property owners; that it has always been connected with other public roadways in the township and county; that it afforded the plaintiffs-landowners the only practical means of ingress and egress to and from their properties; and that these conditions and use existed at the time the plaintiffs acquired their properties and for many years prior thereto.

Further, the record discloses that before the case was dismissed, in answer to interrogatories propounded to them by Crystal, the landowners, under oath, made the foregoing allegations in their petition specific and definite by setting forth in considerable detail the facts and proof in support thereof.

It should be here noted that it is conceded that Crystal also owns land holdings abutting the road in question, which land was a part of other holdings and Crystal was engaged in the development thereof as a lake and recreational facility, for homes and other uses.

The history of these proceedings is long and tortuous and in some respects incomprehensible. On December 30, 1968, the Court had before it the petition of Crystal for an order “closing and vacating” the road. The only part of the Court’s record before this Court is its order of December 30, 1968 and it does not appear when Crystal’s petition was filed, in response to which the order vacating the road issued. The order does recite that after “being duly advised” the Court finds “that the said road has been and is in such a state of repair that it could not be used by the public; that it has been abandoned for all intents and purposes for a period in excess of ten years; and that to properly repair and maintain the said road for the traveling public would require a prohibitive amount of money to be expanded thereon and place an unreasonable burden upon the county finances”. The Court further found “that the vacation of said road will not impose a hardship upon the traveling public”. It is also worthwhile to note that the order is referred to in the caption as “in the Matter of Vacation of County Road”. (Emphasis added)

The factual or evidentiary basis for these findings does not appear. It is conceded that the landowners were not notified of this petition to vacate or of the hearing before the Court; did not appear nor were they represented at the hearing; and, were not served with the ensuing order nor advised thereof.

It is difficult to determine exactly what happened next in the chain of events leading to the filing of the case. In appellants’ petition they allege that “ * * * a short time after December, 1968, defendant, ‘corporation’ * * * blocked off and closed said roadway by erecting thereon and across the same * * * gates and fences which have been manned by armed guards * * * which said gate * * * blocks said road and * * * blocks off plaintiffs sole practical means of ingress onto and egress from their said property * * ”.

Reasonable inferences can be drawn from this record that Crystal as a part of its petition to vacate or in support thereof undertook to build or rebuild the road lying within its property. Following the order of December 30, 1968, vacating the road, by letter dated September 25, 1969 addressed to the Court, as shown by the landowners, Plaintiffs’ Exhibit No. 2, made as an offer of proof, that Crystal restated its position that “all residents of Ray County and their quests shall be permitted to use the roads constructed by the company * * *

Also in June or July, 1973, the landowners requested the Court to vacate its order of December 30, 1968 and were refused. This appears in landowners’ answer to Crystal’s Interrogatory No. 6. This action was commenced on October 26, 1973.

On March 31, 1975, pursuant to a stipulation of the parties, the trial court issued a temporary injunction prohibiting Crystal or other defendants from closing or obstructing the roadway involved and permitting the use thereof by the plaintiffs and others during the pendency of the litigation. When the judgment dismissing this action by the trial court was entered on May 2, 1977, the temporary order of March 31,1975 permitting the use of the roadway in question, was extended and continued as to the plaintiffs-landowners (but not to their successors in interest) during the time of this appeal.

Therefore, the clear facts and the inferences to be drawn therefrom are, that except for a short time after the Court’s judgment vacating the road when it was obstructed, the landowners were permitted to use the same as in the past and such use continues to the present. It should be noted and emphasized, however, that such use after December 30, 1968 was at the sufferance of Crystal and its use was not as a matter of right as members of the public using a public road, and that such use can be terminated at the will or caprice of Crystal unless the road is restored to its prior public status. So the problem is real and not moot so far as the plaintiffs-landowners are concerned and they properly raise the challenge as to the legality of the Court’s judgment of December 30, 1968, vacating this road.

In viewing this case, it should be stated at the outset that there is no dispute, but is apparently conceded by all parties, that the roadway here involved before the controversy arose, was, in fact, a public road in Ray County, Missouri. Appellants maintain that there is but one statutory method for the lawful vacation of public roads, that being the method provided by what is now § 228.110 RSMo 1969. Sheppard v. May, 83 Mo.App. 272, 275[2] (1900). The method there prescribed requires five distinct procedural steps that must be taken before an order vacating a public road can be entered, namely, (1) twelve freeholders of the township must petition that it be vacated; (2) such petition shall be publicly read on the first day of the term at which it is to be presented and the matter continued to the next term; (3) notice thereof shall be posted in three public places for twenty days; (4) all persons whose lands are crossed or touched by the road shall be served with a copy of the petition to vacate; and (5) the petition shall again be publicly read on the first day of the term at which the matter is to be heard. Further, that statute contemplates an opportunity for other freeholders to protest and be accorded a hearing in a remonstrance to the proposed vacation order.

A further statutory provision held applicable to a proceeding of this kind to vacate a road is Section 228.070 RSMo 1969. See Morris v. Karr, 342 Mo. 179, 114 S.W.2d 962, 965[4] (1938).

No contention is made by the respondents that any of these procedural steps were complied with in the instant case. On the contrary, they assert that these statutes and the mandatory requirements therein are not applicable to the proceedings followed in this case leading to the order of the Court vacating the road in question. They argue that the procedures followed in this case were proper under § 228.190. That statute deals with the establishment of roads by prescriptive user and the “abandonment and vacation” by nonuser. This statute originally enacted in 1917 provided for a required period of ten years of nonuser. It was amended in 1953 to reduce this period to five years. As is apparent, this statute contains no procedural requirements to obtain the finding of abandonment and the resulting vacation of the road.

Thus, there exist two separate and distinct methods to accomplish the vacation of a county public road, “formal vacation by an order of the County Court under § 228.-110, or abandonment under § 228.190, i. e. nonuser by the public for the statutory period continuously”. State ex rel. State Highway Commission v. Herman, 405 S.W.2d 904, 907[2] (Mo.1966); Elliott on Roads and Streets, 4th Ed., Vol. 2, Section 1172.

The respondents stoutly maintain that the proceedings in the County Court of Ray County with reference to the road in question were brought under Section 228.190. Indeed, no other approach is available to them since there is no showing (nor any claim advanced) that any of the procedural steps made mandatory under Section 228.-110 were complied with, in any degree.

The essential and basic issue presented by proceedings under Section 228.190 is one of fact, i. e. whether there has been a nonuser by the public of a road for five (formerly ten) years continuously. If that is shown, it “shall be deemed an abandonment”. Terhune v. Caton, 487 S.W.2d 19, 23[3] (Mo.1972). Cf. Pocoke et al. v. Peterson, 256 Mo. 501, 165 S.W. 1017, 1021[2] (1914). In order for a public road to be vacated by abandonment, the nonuse not only must be shown for the statutory period but such nonuse must be a clear and entire abandonment by the public. That it is used infrequently, intermittently or rarely does not meet the standard. If used at all, the road will not be deemed abandoned. Oetting v. Pollock, 189 Mo.App. 263, 175 S.W. 222[3, 4] (1915), and cases cited therein; County of Bollinger et al. v. Ladd, 564 S.W.2d 267, 271[4] (Mo.App.1978). The fact that only part of the road is used, Proctor et al. v. Proctor, 222 Mo.App. 21, 4 S.W.2d 882, 885[1] (1927); Webb v. City of East Prairie, 359 Mo. 247, 221 S.W.2d 153, 154[1] (1949), or that it ends in a cul-de-sac or dead end, Lee v. Smith, 484 S.W.2d 38, 43[7] (Mo.App.1972) does not constitute sufficient evidence of nonuse and abandonment. Further, once a road is established as a public road, its use inures to and becomes affected by a public interest, and the right to use it cannot be abandoned unless all the public concurs. State ex rel. Carter County v. Lewis, 294 S.W.2d 954, 958[4] (Mo.App.1956). The plaintiffs-landowners here also have vested private property rights to the road in question in that as alleged, it provided their only means of ingress or egress from their properties, which rights were effectively destroyed by the Court’s order of December 30,1968 — without notice, hearing or any opportunity to appear and protest the closing. So far as this record now discloses and viewed by the standards above enumerated, the whole proceeding before the Court on the petition of Crystal constituted the rankest kind of default. It thus deprived the landowners of valuable property rights without due process of law and was violative of Amendment XIV to the Constitution of the United States and Article I, Section 10, of the Constitution of Missouri.

The Court’s order of December 30, 1968 under Section 228.190 was illegal and void and not supported by evidence, and the order and judgment of the court below dismissing this action should not have been entered.

This opinion should properly note certain points and arguments raised in respondents’ brief. They assert that mandamus does not lie in this case because landowners-plaintiffs had an adequate remedy at law under the administrative review procedures; that the order of the Court of December 30,1968 was regular on its face and not subject to collateral attack by mandamus; that since the order represented a judicial or quasi-judicial determination of facts and law, the mandamus action will not lie and that the landowners-plaintiffs were guilty of laches.

In approaching these areas, it should be borne in mind that County Courts are purely administrative and not judicial bodies, and as such, are strictly circumscribed to powers and authorities conferred upon them by the Constitution and statutes in the management of county business, Article V, Section 1, Missouri Constitution; State ex rel. Kowats v. Arnold, 356 Mo. 661, 204 S.W.2d 254 (Banc 1947).

The right to seek judicial review of decisions of administrative bodies is granted generally by Article V, Section 22, Missouri Constitution, and the provision implementing this right as it applies to county courts generally, is found in Section 49.230 RSMo 1969, which provides, inter alia, that the aggrieved party must file within ten (10) days from the administrative ruling complained of a notice of appeal with the County Court and that said court shall certify its records to the Circuit Court within thirty (30) days thereafter. However, this Section 49.230 must be read in the light of Section 228.120 RSMo 1969, which provides in part:

U * * *
2. Any order of the county court establishing or vacating a public road shall be subject to judicial review to the same extent and in the manner prescribed by chapter 536, RSMo 1949 (L.1949 p. 551, § 8477)

By reason of this statute it has been held that the matter of procedure for judicial review of a county court order establishing or vacating a public road is governed not by Section 49.230 but by Section 228.120 invoking Chapter 536 RSMo 1969, Administrative Procedure and Review Act. Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 573[8] (Mo.App.1976); State ex rel. Ballard v. Luten, 555 S.W.2d 855, 856-858[2, 3] (Mo.App. 1977).

Section 536.100 RSMo 1969 provides:

“Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in section 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section. Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.” (Emphasis added)

The key term in the foregoing statute is “contested case”. This term is given definition by Section 536.010, which provides:

“For the purpose of this chapter
******
(2) ‘Contested case’ means a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing; * * *
(Emphasis supplied)
* * *>>

The landowners-plaintiffs in this proceeding were not “specific parties” properly notified and given an opportunity to be heard, and it conclusively appears that their “legal rights” could only be determined “after hearing” for this proceeding to qualify as a “contested case”. Although the Court’s order of December 30, 1968 makes reference to “hearing evidence”, the nature or extent of such evidence does not appear and the clear inference can be drawn that such “evidence”, if heard, came from Crystal, the petitioner and advocate for the abandonment, and must be considered as adverse and hostile to the rights of landowners-plaintiffs herein, and in that sense part of the public whose concurrence was a necessary factor. State ex rel. Carter County v. Lewis, supra, l. c. 958[7], The loss of the right to the use of this public road may result only from the acts or concurrence of the parties entitled to its use and not from the adversary or hostile possession of others. Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591[1] (1911). This proceeding, the so-called “hearing” before the Court preliminary to the order of December 30, 1968, bears little resemblance to a “contested case” within the purview of the above-quoted statutory definition. If it was not a contested case it follows that it was a noncontested case. Section 536.150 RSMo 1969 (Laws 1953) is applicable. It states:

“1. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.
2. Nothing in this section of this Act shall apply to contested cases reviewable pursuant to sections 536.100 to 536.140.
3. Nothing in this section shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section.” (Emphasis partially the Court’s and partially added)

This section makes provision for judicial review by extraordinary powers, such as mandamus, which writ by terms of the statute is more flexible than its common law counterpart and allows the Circuit Court to hear evidence, determine for itself the relevant facts, and enter or direct the entry of an appropriate judgment. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 354[1] (Mo. banc 1958); and State ex rel. Tax Commission v. Walsh, 315 S.W.2d 830, 834[1] (Mo. banc 1958).

For the reasons herein stated, the judgment of dismissal below is reversed and the cause remanded to the Circuit Court with directions to hear and determine the issues of fact and law and enter appropriate judgment or direct that such be entered in the County Court of Ray County, Missouri in this matter.

All concur.

      .“228.110. Roads may be vacated, how
      1. Any twelve freeholders of the township or townships through which a road runs may make application for the vacation of any such road or part of the same as useless, and the repairing of the same an unreasonable burden upon the district or districts. The petition shall be publicly read on the first day of the term at which it is presented, and the matter continued without further proceedings until the next term.
      2. Notice of the filing of such petition and of the road sought to be vacated shall be posted up in not less than three public places in such township or townships, at least twenty days before the first day of the next term of the court, and a copy of the same shall be personally served on all the persons residing in said district whose lands are crossed or touched by the road proposed to be vacated in the same manner as other notices are required to be served by law; and at the next regular term the same shall again be publicly read on the first day thereof.
      3. If no remonstrances be made thereto in writing, signed by at least twelve freeholders, the court may proceed to vacate such road, or any part thereof, at the cost of the petitioners; but if a remonstrance thereto in writing, signed by at least twelve freeholders, residents of such township or townships, be filed, and the court after considering the same shall decide that it is just to vacate such road, or any part thereof, against the vacation of which the remonstrance was filed, the costs shall be paid by the parties remonstrating, and the original costs, and damages for opening such vacated road shall be paid by the petitioners to those who paid the same; provided, that if five years have elapsed since the original opening of the same no such reimbursement shall be made.”

      . “228.070. Road change or establishment— approval of highway engineer.
      No county court shall order a road established or changed until such proposed road or change has been examined and approved by the county highway engineer.”

       “228.190. Roads considered legally established, when
      All roads in this state that have been established by any order of the county court, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuser by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same." (As amended, Laws 1953, p. 674, § 1) (Emphasis added)


author: WASSERSTROM, Judge.

text:
    B & B EQUIPMENT CO., INC., a Missouri Corporation, Plaintiff-Respondent, v. John A. BOWEN, Defendant-Appellant.
    No. KCD29622.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      David V. Bear, Columbia, for defendant-appellant.
    Channing D. Blaeuer, Cynthia A. Suter, Moberly, for plaintiff-respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

B & B Equipment Company, Inc. filed this suit to obtain a judgment declaring its right to terminate a contract under which defendant John A. Bowen was entitled to purchase 100 shares of the corporate stock. Bowen counterclaimed for a declaration that the contract is valid and subsisting and that he has a continuing right to purchase the 100 shares. The trial court rendered declaratory judgment as prayed by B & B, and Bowen appeals.

B & B is the successor to Braymen Tractor Company which was originally owned by Mr. and Mrs. L. D. Braymen. The Bray-mens took Robert J. Jaecques and William L. Hughes into the business in 1964, first as employees and then later as partners and finally as equal stockholders in a corporate form of doing business.

In 1968, L. D. Braymen wanted to retire and Jaecques and Hughes desired to find someone to take Braymen’s place. At that particular time, Bowen who had had prior experience in the same line of business, was unemployed and available. Accordingly, on December 28, 1968, the parties entered into an oral agreement with Bowen under which Bowen would become an equal participant in the business in place of Braymen. Bowen, however, did not have sufficient funds to pay the value of Braymens’ 100 shares of stock, which was agreed to be $15,000. The corporation therefore agreed to buy the stock from the Braymens for $15,000 and in turn to sell that stock to Bowen for the same sum. Bowen was to and did pay $2,500 direct to the Braymens. B & B gave the Braymens its note for $12,500, payable with interest of 6% per annum. Bowen was to be entitled to all dividends on the 100 shares, and he agreed to pay back the dividends ' to B & B for application on the purchase price of the stock. When those payments for the stock totaled $12,500, plus whatever interest B & B had by then incurred to the Braymens, B & B was to deliver the 100 shares to Bowen. Under the agreement, Bowen was to assume as his primary responsibility all the corporate record keeping and bookkeeping, and he was in addition to devote his full time and attention to the corporate business in whatever capacity became necessary, including selling. The salaries of all three men were to be equal.

Promptly after the making of that agreement, Bowen did assume his new duties and at the beginning performed in a manner satisfactory to Jaecques and Hughes. Dividends were declared from 1969 to 1976 of which Bowen’s share came to $7,156 and which were paid to him. He, in turn, repaid an equivalent amount on each occasion to be applied toward the stock purchase. However, starting in about 1972, Bowen began engaging in outside business activities and spent less time on his duties for B & B, with the result that Jaecques and Hughes became more and more dissatisfied with Bowen’s performance. This dissatisfaction developed to the point that on April 27, 1976, a meeting was held between the three men in which Jaecques and Hughes informed Bowen that he was discharged. Approximately two or three weeks before that, B & B had paid a dividend for the year 1975, of which Bowen’s share was $800, and at the time of the April 27 meeting Bowen had not yet repaid that sum to be credited on the stock purchase.

Following his discharge, Bowen retained counsel and on May 4 his lawyer wrote to the B & B attorney stating that Bowen would release any and all interest in the corporation for the sum of $82,350. On May 24, 1976, the corporation’s attorney responded that B & B had elected to rescind the 1968 agreement and tendered to Bowen the sum of $9,656, representing the $2,500 paid by Bowen to the Braymens, together with the $7,156 dividends which Bowen had received from B & B and contributed toward payment of the stock. On June 2, 1976, Bowen’s lawyer wrote rejecting the Corporation’s tender and countered with a tender by Bowen of $5,344, plus whatever the amount of interest was that B & B had paid the Braymens, in exchange for which Bowen demanded the issuance to him of 100 shares of B & B stock.

The impasse thus created led to the present lawsuit. 'After hearing evidence without a jury, the trial court made findings of fact which included the following:

“6. That on or about April 27, 1976 Jaecques and Hughes fired defendant as an employee and officer in the business. This action resulted from dissatisfaction with defendant in not devoting his full time and best efforts to the interest of the business. That defendant over a period of time did not properly keep the books of the plaintiff’s business and did not devote his full time to his responsibility in the business. That defendant, as of April 27, 1976, had not paid to plaintiff the $800.00 dividend to be applied on defendant’s obligation to purchase stock. That such actions and omissions and failure to act and perform on part of the defendant constituted a breach of the terms and conditions of the contract between plaintiff and defendant.
******
“9. The court finds defendant did breach the conditions of the contract of December 28, 1968 as set out in paragraph 6 herein and that plaintiff was entitled to rescind the contract upon payment to defendant of the sum of $9,656.00 representing the total of the benefits received by plaintiff from defendant under said contract.”

I.

Sufficiency of the Evidence

Bowen’s first point on appeal is that the trial court’s determination is not supported by the evidence. Despite the phraseology of that point, the main thrust of Bowen’s argument thereunder is that even if the evidence did support a finding that Bowen had breached the contract, nevertheless Bowen’s default was not so serious as to warrant rescission. That contention really argues in slightly different form, the substance of what is presented in the argument advanced under Bowen’s point 2 and that subject will be reserved for discussion under section II of this opinion. The discussion at this point will be confined to an inquiry as to whether Bowen did in fact breach the contract.

The disputed issues of fact in this regard are as follows: (A) whether Bowen’s delay in repaying the $800 constituted a breach; (B) whether Bowen took business hours away from duties for the corporation in order to pursue outside business activities of his own; (C) whether Bowen performed his record keeping and bookkeeping in a satisfactory manner; (D) whether Bowen failed to lend sufficient help in sales activities, and (E) whether the other stockholders voiced their dissatisfaction to Bowen prior to the discharge, thus giving him adequate warning and opportunity to remedy the alleged defaults.

A. The $800 Repayment. Without dispute, B & B did pay Bowen a dividend of $800 about the middle of April, 1976, and Bowen had not tendered repayment of that amount toward the stock purchase up to the time of his discharge on April 27, 1976, nor had he repaid the $800 up to May 24, 1976, when B & B declared a rescission. However, by his letter dated June 2,1976, Bowen did tender the full balance still owed by him on the stock purchase, which, of course, covered the $800 which he had received in April. The question therefore becomes whether Bowen’s delay from April to June constituted a breach of agreement.

To be noted in this respect is that the agreement between the parties did not call for repayment within any definite specified time. Bowen testified that in fact there had been a delay of two or three weeks in prior years between the date upon which the dividend was paid and the date when he made repayment of a like amount to be credited against the stock purchase. Under these circumstances, and considering the confused situation caused by Bowen’s discharge on April 27, 1976, it cannot be said that Bowen delayed an unreasonable length of time in making his tender. See Cochran v. Grebe, Mo.App., 578 S.W.2d 351 (1979). The portion of the trial court’s finding is therefore disapproved which holds that Bowen’s delay in this regard constituted a breach of the agreement. That disapproval, however, does not change the result, because there was other conduct constituting breaches of the agreement, discussed below.

B. Outside Business Activities. Ja-eeques and Hughes both testified that during the last four years before the discharge, Bowen had devoted an increasing amount of time to personal business activities of his own. They testified that he was engaged in the selling of real estate and that the B & B business phones were often times tied up by Bowen conducting his real estate business. They further testified that Bowen was gone from the business premises much of the time, Jaecques estimating that these absences would run as much as 50% of the business hours. They also testified that Bowen spent some of his time at B & B using the company equipment to make ornamental rings. In addition to that, they testified that Bowen went to auctions of used farm equipment where he bought certain pieces of equipment which he then brought back to the B & B shop for reconditioning and that Bowen would then resell that equipment for his own account and profit.

Bowen did not wholly deny, but only tried to minimize, the foregoing testimony. He admitted that he had sold three farms and two houses during the years 1973 and 1974, and that he had made and received phone calls at the B & B offices in connection with his real estate activities. He denied that he had made any real estate sales after 1974, but his denial did not go so far as to say that he had not made attempts at sales in the subsequent period. He acknowledged that he had brought some personally owned equipment with him when he first came to work for B & B in December, 1968, which he thereafter sold for his own account, and he further acknowledged that he had attended auctions and purchased used equipment which he brought to B & B for reconditioning. However, with respect, to the latter equipment, he testified that the purchases and resales were for the account of the corporation and B & B received the profit. Bowen also admitted that he sometimes took two to three hours for lunch, and he also admitted that he came back to the B & B office late at night after regular hours in order to do bookkeeping work.

The testimony by the opposing parties on this subject presents some conflict. That conflict was resolved by the finding of the trial court, to which this court must give deference under Rule 73.01-3(b). Accordingly, the finding of breach of contract by Bowen in this regard must be accepted.

C. Sufficiency of Performance of Bookkeeping Duties. Jaecques and Hughes testified that the corporate records were improperly kept in many important respects. According to them, the perpetual inventory was far off from the actual inventory so that items were shown on perpetual inventory which were not actually present and some of the actual inventory was not shown on the records. Certain loans to the corporation were not reflected on the books of account. The bank balances were not reconciled. Bowen was so far behind in bookkeeping that he neglected to take advantage of available cash discounts, although the corporation had the money on hand with which those bills could have been paid. After Mrs. Braymen left the office, Bowen never did close the books at the end of the month and strike a monthly balance sheet as she had done and which was required by the B & B suppliers. For some period of time, Bowen had this month-end work done by his wife, but later (over the protest of Jaecques and Hughes) he hired a professional accountant, Fine, to do that phase of the company accounting, with Fine being paid at B & B expense. After Bowen was discharged, B & B hired Mrs. Braymen to return to do the office work and she found that no balance sheet had been prepared since October of 1975, that there were large inventory discrepancies, that the bank balances had not been reconciled, and she had trouble putting the records into order. Ja-ecques further testified that at one time when he and Hughes suspected laxness in the keeping of cash records, he made a test by abstracting sums of money from the cash drawer which he held out until the withdrawals accumulated to more than a hundred dollars, after which he returned the abstracted money to the cash drawer. Bowen did not report or comment upon money either being short or over.

Bowen for his part denied any basic improprieties in his performance of bookkeeping. However, he did admit that he had never closed the books or made up a monthly balance sheet, and he further admitted that he hired Fine at company expense to do this work until Fine’s death and that thereafter he employed another outside accounting firm at company expense for that purpose.

Here again, the conflict in evidence has been resolved by the trial court and is entitled to deference under Rule 73. The finding in this respect is therefore approved.

D. Sales Assistance. Jaecques testified that Bowen never lent a hand at sales work even when obviously needed, until either he or Hughes would make direct request upon Bowen. Bowen never developed any clientele of his own, and his portion of the total sales would be only approximately 10%. Hughes corroborated that general testimony. Bowen on the other hand insisted that he did his “fair share” of sales work. The evaluation of this conflicting testimony was for the trial court, to which deference is due under Rule 73.

E. Protests and Warnings. Ja-ecques testified that he had discussed Bowen’s shortcomings with him several times. Bowen, on the other hand, said that although there were some disagreements, there was “nothing serious” except with respect to his insistance upon hiring Fine to do part of the bookkeeping work. Bowen also testified that at one time he suggested that each of the three stockholder-employees use a time clock, which can well lead to the inference that Jaecques was protesting to Bowen about the latter’s taking too much time away from his duties at B & B. In any event, to the extent that there is a conflict in evidence on this point, the facts must be taken in accordance with the result reached by the trial court. Westinghouse Electric Co. v. Vann Realty Co., 568 S.W.2d 777 (Mo. banc 1978); In re Marriage of Prenavo, 556 S.W.2d 463 (Mo.App.1977); De Paul Hospital v. Southwestern Bell Tel., 539 S.W.2d 542 (Mo.App.1976); Collins v. Bowyer, 524 S.W.2d 190 (Mo.App.1975).

II.

Materiality of Bowen’s Breach

Bowen’s second point on appeal is that his “breach did not go to the very substance of the contract and further, any breach was waived and the trial court should have estopped assertions otherwise.” The legal doctrine upon which Bowen rests this argument is that a rescission of a contract for breach by the other party must relate to a vital provision going to the very substance or root of the agreement, and cannot relate simply to a subordinate or incidental matter. McCullough v. Newton, 348 S.W.2d 138, 142 (Mo.1961). Bowen attempts to bring himself within that principle by arguing: “The contract respondent corporation and appellant entered into on December 28, 1968, was for the purchase of L. D. Braymen’s One Hundred (100) shares of stock. * * * The further agreement of employment with the respondent corporation was incidental to the major purpose of the contract, that of purchasing the stock of L. D. Braymen.”

The argument just quoted turns the real situation up side down. Rather than the principal purpose of the agreement being the sale and purchase of stock, clearly the major purpose of the transaction between B & B and Bowen was the performance of services by Bowen. The stock itself was to go to Bowen on terms which can be explained only on the basis that Jaecques and Hughes were willing to let him become a one-third owner in expectation of valuable services to be contributed by Bowen. Indeed, by far the major part of the purchase price was to come from the corporation itself in the nature of a bonus which could only be for services rendered.

B & B did not make this deal with Bowen in order to obtain needed capital. Instead the real purpose which stands out on this record as a whole is that Jaecques and Hughes wanted a “third partner” to take the place of the retiring partner Bray-men. What they wanted were Bowen’s services, not his money; and in fact the only money which Bowen was ever to put up out of his own pocket was the initial $2,500. The only realistic appraisal of this situation is that the services to be performed by Bowen were the “very substance and root of the contract” so that his failure to adequately perform those duties did constitute a material breach warranting rescission.

Bowen suggests that the definition of materiality should be amplified by utilization of the guidelines set forth in Restatement of Contracts, Section 275. Comment a to that section states that in determining whether a breach of contract is a material one, it is impossible to lay down a rule that can be applied with mathematical exactness and that such a determination depends upon considerations of inherent justice. Nevertheless, this section of the Restatement suggests certain guidelines, each of which will now be considered in connection with the facts of the present case:

A. The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated. Here, B & B (the injured party) received some performance from Bowen for a period slightly in excess of five years, but those services were defective for reasons already discussed under section I of this opinion. Jaecques and Hughes had agreed that Bowen could acquire a one-third ownership in their corporation on extremely favorable terms, in the expectation that they were obtaining an experienced partner who would devote his full time and attention to the company business. That expectation failed of fulfillment. It cannot reasonably be said that Jaecques and Hughes received the substantial benefit which they had a right to expect.

B. The extent to which the injured party may be adequately compensated in damages for lack of complete performance. Bowen suggests no way in which his breaches of contract may be measured in monetary terms. This situation does not lend itself to compensation in damages.

C. The extent to which the party failing to perform has already partly performed or made preparations for performance. Bowen here had partly performed, but defectively. Despite protests, he failed and neglected to make good the deficiencies. This guideline operates somewhat in Bowen's favor, but not decisively so.

D. The greater or less hardship on the party failing to perform in terminating the contract. The value of the 100 shares of B & B stock appreciated between December 1968 and April 1976. Bowen will receive the benefit of at least a substantial part of that increase by reason of the payment to him of the $7,156 in dividends declared by B & B during that period. To the extent that Bowen does not receive the full benefit of the increase in value of the 100 shares, his wound is self-inflicted by his defaults in performance. In addition, whatever loss is suffered by Bowen is more than counterbalanced by the hardship and unfairness which would be caused to Jaecques and Hughes by an opposite ruling.

E. The willful, negligent or innocent behavior of the party failing to perform. As heretofore discussed, Jaecques made protest and gave fair warning to Bowen concerning the unacceptability of Bowen’s performance. Bowen’s continuance in his unacceptable performance was at the very least negligent.

F. The greater or less uncertainty that the party failing to perform will perform the remainder of the contract. This particular criterion is of doubtful application in this present situation. If it be applicable, Bowen has had over five years in which to demonstrate his good faith and willingness to carry his share of the burden. Jaecques and Hughes cannot with fairness be required to experiment even longer in some vague hope of improvement.

Bowen also argues that B & B should not be permitted to rescind because that would be a violation of good faith and fair dealing on its part, because it had waived any claim of defect in Bowen’s performance, and because it should be estopped to assert any such defect. All this multifaceted argument rests on the assertion that B & B never protested to Bowen concerning the unacceptability of his performance of duty and that the corporation therefore caused him to rely upon a belief that his performance was satisfactory. That argument in all of its aspects falls because of the false factual premise. As heretofore discussed in section I of this opinion, Ja-ecques did protest to Bowen and gave him warnings. It cannot be fairly said that B & B failed in any duty of fair dealing or that it was waived or is estopped to assert its right of rescission.

III.

Divisibility

Bowen’s third point is that the employment under the December 28, 1968 contract is divisible from the stock purchase, so that even though Bowen may have made a material breach of the employment part of the contract, that did not authorize a rescission of the stock purchase part.

The rule as to what constitutes an entire as compared to a severable contract can be stated in only general terms, subject to flexible application. It is said that there is no formula for a test in all cases, and each case must depend largely on its own circumstances. 17A C.J.S. Contracts § 331, p. 302. According to Williston on Contracts, 3d Ed., Section 863, p. 275: “The essential test to determine whether a number of promises constitute one contract or more than one is simple. It can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out.” That statement of the rule by Williston is quoted with approval in Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111, 120 (banc 1937). To the same effect: Katz v. Pulaski Savings and Loan Ass’n., 546 S.W.2d 24, 26 (Mo.App.1976); Rexite Casting Co. v. Midwest Mower Corp., 267 S.W.2d 327 (Mo.App.1954).

Applying the quoted test here, it can hardly be doubted that B & B would have refused to enter into the December 28,1968 agreement had it not been for the employment feature. As has already been developed under section II of this opinion, the employment of Bowen was the dominant reason and motivating cause for the entire contract. It is inconceivable that Jaecques and Hughes would have agreed to let Bowen have one-third of all the stock for only $2,500 paid in were it not for their expectation that he would earn the additional $12,-500 of the purchase price through the value of the services he would supply to the corporation over and above his stated salary. The present case bears considerable analogy to Lynch v. Higley, 8 Wash.App. 903, 510 P.2d 663, 670 (1973), in which it was held that the breach of an employment contract by an employee-stockholder excused another stockholder from his contract obligation to sell the remainder of his stock to the defaulter.

We hold that the employment portion of the December 1968 contract is not severable from the stock purchase portion.

IV.

Adequacy of the Remedy

Bowen argues that the remedy granted by the trial court is inequitable in that he should have been awarded specific performance of the stock purchase agreement. The short answer to that argument is that Bowen is disentitled to specific performance because of his own prior material breach. Landau v. St. Louis Public Service Company, 364 Mo. 1134, 273 S.W.2d 255 (banc 1954).

Bowen argues also that B & B should not have been granted relief because its conduct was inequitable. This argument is erected upon the contention that B & B had never protested to Bowen that his performance was unsatisfactory and that B & B thereby led him to believe that his performance was acceptable. This underlying factual contention is incorrect in light of the evidence already discussed.

However, although not specifically argued by Bowen, the relief granted by the trial court does seem plainly inadequate and inequitable in another respect; that is, the failure of the decree to give credit to Bowen for the income taxes paid by him which otherwise would have fallen upon B & B. This phase of the matter arises out of the fact that B & B and its stockholders had elected from the beginning to be taxed under Subchapter S of the Internal Revenue Code. Pursuant to this election, B & B was taxed essentially as a partnership, with all the corporate profits being taxed to the individual stockholders in proportion to their stockholding, and with the corporation itself being excused from the payment of income tax. This tax result followed regardless of how much of the corporate profit was actually distributed to each of the stockholders.

The record shows that B & B did have substantial corporate profits upon which the stockholders individually paid taxes, but that not all of those profits were actually distributed as dividends. Thus for example, the record shows that the individual stockholders each paid substantial tax on the corporate earnings in the years 1972 and 1973, although no dividends were paid by B & B in those years. The testimony was that B & B paid out as dividends only such cash earnings as could be spared, and that the balance of the profits was plowed back principally in the form of inventory.

So it is that Bowen has paid taxes on corporate earnings which he has never received and which he now can never receive. In effect he has paid taxes in lieu of and for the benefit of B & B. The only equitable course is to require B & B to reimburse Bowen for that amount of income tax paid by him.

The judgment is affirmed except as to the amount which is to be paid by B & B to Bowen. This case is remanded to the trial court for the purpose of determining the amount of income tax paid by Bowen attributable to the corporate earnings by B & B which were not distributed. That amount is to be added to the $9,656 paid by Bowen toward the 100 shares of capital stock, and the aggregate total of those two sums is to be paid to Bowen by B & B.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Lynn Clark DRANE, Defendant-Appellant.
    No. KCD 29691.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    David H. Bony, Kansas City, for defendant-appellant.
    Mary C. Asel, Asst. Pros. Atty., Columbia, for plaintiff-respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

Defendant was tried and convicted by a jury of driving while intoxicated, second offense, and the jury fixed his punishment at 30 days in the county jail and a $1,000 fine. Defendant’s sole point on this appeal is that he was deprived of the right of counsel. We reverse and remand for a new trial.

This case first came up for trial on January 27, 1977. At that time Mr. William A. Atkinson appeared for defendant, stated that he was substituting for Mr. Welliver, and requested a continuance and resetting of the trial date. The court in response to that request reset the case for jury trial on March 3, 1977.

The next chronological development shown by the transcript is a docket entry dated February 7, 1977, which reads in full as follows: “Prosecuting Attorney appears by Assistant Prosecuting Attorney. Defendant appears by counsel. Counsel motion to withdraw being presented. Same sustained; Warren Welliver given leave to withdraw as attorney for defendant. F.C.”

On March 3, 1977, the case came on regularly for trial before Judge John M. Cave and defendant appeared personally, without counsel. A jury was selected in accordance with the usual voir dire procedure. Though given the right by the trial court to ask questions of the venire and to make objections, defendant did not participate in this process in any meaningful way. An opening statement then followed the prosecuting attorney.

At that point, the trial judge inquired whether defendant desired to make an opening statement. Before answering to that question, defendant put a question of his own to the court concerning his right to have witnesses. After some discussion about subpoenas, the following colloquy occurred:

“MR. DRANE: Can I have an attorney here this afternoon?
THE COURT: You mean to sit with you?
MR. DRANE: Yeah.
THE COURT: If you think you could get one, I’ll recess it at this time so that he could be here with you as much as possible.
MR. DRANE: Could it be recessed till one o’clock?
THE COURT: How long do you think your evidence will take, Mr. Strauss?
MR. STRAUSS: Approximately thirty minutes.
THE COURT: Well, under the circumstances, since . . since the defendant is representing himself at the moment and is unfamiliar with legal process, I would recess it until one o’clock at this time.
MR. STRAUSS: Your honor, this case has been set for two months. He’d been through this legal process before and it took three years to get him to trial. And it appears he’s doing the same thing again.
THE COURT: Well, the case, the trial has commenced at this time
MR. STRAUSS: But, Judge . . .
THE COURT: ... I think . . I think an hour and a half recess would not be too much. We’d have to take a break for lunch anyway.
MR. DRANE: I can ... I can . I hate to ask you for it . I thought I was going to have an attorney here this morning, but I would . that’s the reason I wanted it to go on through because I don’t want it to be drug three years. I want to go on.
THE COURT: Would, uh, if we would recess for a few minutes, could you call your attorney and see if he could make it here in the next fifteen or twenty minutes?
MR. DRANE: He’s in . . . He is busy at the present time. He’ll be . they’ll be busy until noon, will be till twelve o’clock anyway.
THE COURT: What?
MR. STRAUSS: Who’s his attorney?
MR. DRANE: That’s, uh, I’ll have to get one.
MR. STRAUSS: Your honor, he doesn’t even have an attorney at the present time.
THE COURT: Will . . .
MR. DRANE: I have one in mind.
MR. STRAUSS: Even now, your honor, he’s saying he has one in mind, and he doesn’t have an attorney. He’s making a mockery of this whole proceeding.
THE COURT: Would you be willing to proceed, Mr. Drane, this morning if you can get your attorney here this afternoon at one o’clock?
MR. DRANE: Yes, I would.
THE COURT: Do you want to go ahead and proceed as far as they can?
MR. DRANE: Yes, that that does help a lot.
THE COURT: All right. Then we’ll proceed and get as far as we can and then we’ll recess until one o’clock so he’ll have an opportunity to get his witnesses and perhpas [sic] have counsel present to sit with him.
MR. DRANE: Go ahead till noon? Go ahead till noon then?
THE COURT: Well, or until the State finishes its evidence and then we’ll recess.”

The state then proceeded with introduction of evidence and concluded shortly before noon. The court recessed the trial until 1:15. After that recess for lunch, court reconvened, with defendant again appearing without counsel. No questions were asked with respect to any attempts on his part to obtain legal representation. Rather he was invited to make an opening statement or to proceed with evidence, whichever he chose. Defendant elected to produce witnesses, fifteen in number, including himself. At the conclusion of the evidence the court instructed the jury, the prosecuting attorney made closing argument, and defendant undertook to make a closing argument on his own behalf.

After the jury brought in a verdict of guilty, defendant did retain counsel for the purpose of filing a motion for new trial, and that counsel did proceed to file and argue the motion. That retained counsel also appeared at the time of allocution and sentencing. He further filed motion to vacate the sentence and to place defendant on probation or to suspend execution of sentence, and he introduced evidence in support of the latter motion. After that motion was argued and overruled, retained counsel filed this appeal.

A defendant in a criminal case, even where it involves only a misdemeanor, has an unquestioned right to retain counsel to handle his defense. As stated in State v. Jones, 466 S.W.2d 688 (Mo.1971), this principle is “too well established in our jurisprudence as to call for discussion . . . .” On the other hand, this right does not extend so far as to permit abuse. As was said in State v. Crider, 451 S.W.2d 825, l.c. 828 (Mo.1970): “[t]he accused’s right to private counsel * * * does not include the right to defeat or impede the orderly processes of the administration of justice.”

These opposing considerations often require a delicate balancing on the facts of each particular case. The factors generally to be considered in a case where a defendant desires a continuance to replace retained counsel who has withdrawn are: the reasons for withdrawal or discharge, the diligence or lack of diligence by the defendant in attempting to obtain a replacement, and the prejudice or lack of prejudice to the defendant arising from refusal to give him further opportunity to obtain new counsel. Annot., “Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance,” 73 A.L.R.3d 725, Sec. 5 at p. 745 and Sec. 22 at p. 831.

Applying that analysis here, defendant should have been given further opportunity to obtain legal representation. Addressing the question of reasons for the withdrawal by Mr. Welliver, the record stands completely silent. So far as this record goes, that withdrawal could have been for some reason entirely personal to the attorney and not motivated by any request from defendant or any conduct on defendant’s part.

With respect to diligence by defendant in replacing Mr. Welliver, the record does not even show when defendant first learned of Mr. Welliver’s withdrawal. The court minutes do not reflect that defendant was present before the court when the leave to withdraw was granted, and no showing appears as to the communication of that ruling to defendant. Whether or not that information was given to defendant, and if so when, is left as a matter of complete speculation. Moreover, even if it be assumed that defendant was notified of the withdrawal and even though he may have been negligent in not acting sooner than he did to obtain substitute counsel, such negligence would not necessarily be conclusive against him if the lack of counsel was in fact prejudicial to a fair trial. So, for example in State v. McClinton, 418 S.W.2d 55, l.c. 59 (Mo.banc 1967) it was held:

“Undoubtedly the defendant was negligent in not obtaining counsel during the interval between his arraignment on March 17, 1965, and the beginning of his trial on April 15, 1965. On the other hand, the record does not demonstrate there would have been any prejudice to the state or great inconvenience if the court had continued the case for a few days with the strict understanding that he must obtain counsel and be ready for trial on the next setting.
* ⅛ ⅜ * % *
“In the circumstances shown by this record, we hold that the failure of the trial court to grant the defendant an opportunity to obtain counsel was an abuse of discretion affecting substantial rights of the defendant. The error is prejudicial and justifies a reversal of the judgment and remand of the cause for a new trial.”

Coming to the final and perhaps most important criterion to be considered, there can be little doubt about the serious prejudice caused to defendant. Of first importance is the fact that he went into this trial and continued all the way through the verdict without legal representation of any sort. In this respect, the present case stands in sharp contrast to other cases where the trial court was sustained in denying further opportunity to obtain substitute counsel, but where the defendant did have a lawyer present, even though that attorney may have been one with whom the defendant was not satisfied. See for example State v. Crider, supra, and State v. Gaye, 532 S.W.2d 783 (Mo.App.1976).

It is true that the trial court offered defendant the noon recess as an opportunity to obtain counsel. Such an offer cannot be considered sufficient, especially because it was coupled with the proposition that the state would proceed to put on all of its evidence before the noon recess. Although defendant verbalized an acquiescence to the court’s suggestion, that was apparently premised in substantial part upon a lack of appreciation by defendant of the importance of having counsel present in order to test the state’s ease by proper objections and cross-examination. Furthermore, what little chance defendant had of retaining counsel if there had been an immediate recess (as requested) before the state had commenced the introduction of evidence, that chance was reduced to the vanishing point when defendant was confined in his efforts to the short noon recess and particularly when any lawyer whom he approached would find himself in the unenviable position of stepping into a case which was already half over. When all is said, defendant’s “agreement” seems no more than his taking the best he could get.

The record in this case shows that defendant’s performance in his attempts to represent himself was inept, as was to be expected. Under the circumstances disclosed, it can hardly be said that defendant has received a fair trial.

The state attempts to justify the action of the trial court in this case by attaching to its brief a so-called “Exhibit A” consisting of a copy of the docket sheet in a prior case for driving while intoxicated which had been filed against defendant in June, 1973, and which was finally disposed of after two trials, in August, 1975. The purpose of this document is to show that in the prior case defendant had hired and then discharged a series of different lawyers. On the basis of this, the state argues that the trial court had the right to take judicial notice of its own files and that because of what defendant did in the prior case, the trial court could conclude that defendant in this case was not acting in good faith.

One trouble with that argument is that a court does not ordinarily take judicial notice of records in another case (although it may make an exception and do so in the interest of justice). Layton v. State, 500 S.W.2d 267 (Mo.App.1973); Haynes v. State, 534 S.W.2d 552 (Mo.App.1976); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). In the present case not only was the trial court not obligated to consider the files in the previous case, but it is by no means certain that it did so. The only reference in the transcript to the prior case is the ambiguous statement by the prosecuting attorney that defendant had “been through this legal process before and it took three years to get him to trial.” That cryptic reference was in no way amplified by the prosecutor nor was it mentioned by the trial judge as reliance for the action taken by him in the present case.

A still further objection to consideration of said “Exhibit A” is that it is not brought before this court in a proper fashion. A.n appellate court looks to the transcript on appeal for the evidence, not an appendix attached unilaterally to its brief by one of the parties. Thompson v. State, supra at 382[6]. See also Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977) [9].

But even if we were to consider “Exhibit A” and assume that the trial court also had the prior proceedings in mind, that additional evidence would serve only to highlight and emphasize the importance of the evidentiary gaps in the present ease. If Judge Conley was aware of defendant’s conduct in the prior case, and deemed that conduct to show an established pattern of abuse of the judicial process, why did he permit Mr. Welliver to withdraw unless and until defendant retained substitute counsel and the new attorney made entry of appearance? Did Judge Cave, who presided over the present trial itself, know for what reason Judge Conley had permitted Mr. Welliver to withdraw and why Judge Conley had not insisted upon entry of appearance by new counsel as a condition for such withdrawal? On what basis did Judge Cave reach the conclusion (if he did) that the withdrawal by Mr. Welliver and defendant’s failure to replace him by the date of trial was the same in nature as the withdrawals and delays which took place in the prior case? The answers to these questions are left purely to speculation. Important, precious constitutional rights should not be declared forfeited on such an uncertain basis and without the matter having been clearly brought out in the open in the trial court, with the defendant being given a clear opportunity to respond and to explain, and with a full statement of reasons by the trial court upon which an appellate court can make an intelligent review.

Under the particular circumstances of this case and in view of the limited record presented, the conclusion is required that defendant was not accorded an adequate opportunity to be represented by counsel. The conviction is therefore reversed and the case remanded for new trial.

All concur.

      . It can be inferred that the initials are those of Judge Frank Conley, one of the judges in the 13th judicial circuit.

      . The state in its brief offers some scanty information on these points, but the brief gives no citation to the record in these regards. An independent scouring of the transcript yields no support for the statements in question. The statements of the state’s brief in this respect therefore must be ignored.


author: KENNEDY, Judge.

text:
    Scherry Allen SMEAD, Plaintiff-Appellant, v. Rex Benny ALLEN, Defendant-Respondent.
    No. KCD 29753.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      Floyd L. Sperry, Jr., Independence, for plaintiff-appellant.
    William D. Piedimonte, Independence, for defendant-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

After a hearing upon respondent father’s motion to modify a decree with respect to child custody, held July 28-29, 1977, the Circuit Court of Jackson County ordered the custody of Rodney Eugene Allen, nearly 11 years of age, transferred from his mother, the appellant, to his father.

Appellant complains of the admission into evidence of written reports of investigators for the Jackson County Juvenile Court and the Orange County (California) Probation Department. The reports had been ordered by the court under the authority of § 452.390, RSMo Supp. 1975.

In admitting these reports, the court was in error. In re Marriage of Cavitt, 564 S.W.2d 53 (Mo.App.1978), decided since the hearing in this case.

Appellant then says that, without the reports, the judgment of the court was not supported by substantial evidence and that we should therefore reverse the judgment. She thus recognizes that the admission of improper evidence is not in itself grounds for reversal in a court-tried case — at least where, as here, the improper evidence does not appear to have played a critical role in the court’s decision. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will put aside the investigation reports which ought to have been rejected and will determine whether, without them, there remains substantial evidence to support the judgment of the court. Menos v. Hodges, 499 S.W.2d 427, 429 (Mo.1973); In re Marriage of Cavitt, 564 S.W.2d at 57.

We acknowledge the rule that a child custody decree may be modified only upon the showing of a significant change of circumstances occurring since the decree was made. Villaume v. Villaume, 564 S.W.2d 290, 302 (Mo.App.1978); Blair v. Blair, 505 S.W.2d 444 (Mo.App.1974); Kennedy v. Carman, 471 S.W.2d 275, 288-289 (Mo.App.1971). (In our case, as we shall see, it makes no difference whether we take as a base date the time of the original decree in 1967, or the 1973 modification based upon the parties’ stipulation. The evidence takes us back only to 1973.) We acknowledge also a second rule, more basic than the first, that the welfare of the child is the paramount consideration in child custody cases. In re Shepler, 372 S.W.2d 87, 90-91 (Mo. banc 1963).

In this case, leaving out the disputed reports altogether, and bearing in mind the rules recited in the preceding paragraph, we find abundantly substantial evidence to support the judgment of the trial court. We will now state the facts of the case, which we have drawn from the properly admitted evidence:

The father, Rex Benny Allen, and the mother, Scherry, were divorced in 1967 when Rodney was a little past one year of age. The original decree gave Rodney’s primary custody to Scherry. The decree was modified upon stipulation of the parties December 27, 1973, giving to the father Rodney’s temporary custody until June, 1974, and giving him permission to take the child to the State of California. The maternal grandmother seems to have initiated this change. That arrangement was continued indefinitely until Rodney’s return to Missouri to visit his mother and grandparents in the summer of 1976.

In August, 1976, Rodney was sent to Missouri to visit his mother and his maternal grandparents — as in the summers of 1974 and 1975, when he had spent most of the summer with the grandparents. The grandparents lived in Independence. After the 1976 summer visit the mother did not permit Rodney to return to his father in California. He was then in his mother’s custody in Missouri till the hearing on this motion to modify, which was held July 28-29, 1977. During the year he was with his mother, Rodney visited the father in California for four days around New Year’s, 1977, and spoke with him a few times on the telephony. The mother denied the father’s requests for a July 4 visit, and for a visit during the week before the hearing. He was allowed a supervised visit of two hours in the maternal grandmother’s home on the afternoon before the hearing.

At the time of the hearing, the respondent father lived with his wife Linda in Fountain Valley, California. He had been employed by the U.S. Customs Service since at least 1973 and was earning upwards of $20,000 per year. Linda was employed by International Telephone & Telegraph Company. They had been married since December 27, 1975, although they had lived together for about a year prior to the marriage. Rodney had been a member of the household during that year, and knew his father and Linda were not married. He had attended their wedding.

At the beginning of the 31-month period during which Rodney was in his father’s actual custody, Mr. Allen was single and living alone. He arranged for responsible adult supervision for Rodney in the late afternoon hours, on school holidays, and also during occasional periods of days or weeks when his employment required him to be away from home. Rodney did poorly in school when he first went to California and was retained in the second grade, but after that got along very well. In December of 1974 Linda came to live with the father, and she assisted in Rodney’s care and supervision. The father, and Linda after she entered the picture, gave active aid and encouragement in his schoolwork, in recreation programs and Boy Scouts. During the summer of 1976, before his return to Missouri, he was enrolled in a summer school program in a private school.

In 1974 and 1975, as previously noted, Rodney had spent most of each summer in Independence with his maternal grandparents, Lyle and Roberta Jenkins. The father had visited him there each summer. In 1976 it was August 9 before Rodney came to stay with them, and only after the mother contributed $100 plane fare. (The father had paid all the travel expense for the earlier trips.) The father explained the delay as the result of expense and uncertainty connected with his purchase of a new house in California. At the end of the 1976 summer visit, of course, Rodney did not return to California.

During the California period, the mother would occasionally visit Rodney at the home of her parents during the summers. While he was in California, though, her mail and telephone contacts with him were minimal.

The mother at the time of the hearing had worked for Human Resources Corporation since January, 1976. She had started as a clerk-typist but now was a personnel management and record services specialist, making $7,172 per year. She received $90 per month child support. She and Rodney lived in a modest but well-kept and well-appointed house in a racially mixed neighborhood, where she paid rent of $100 per month. The son of a second marriage, to a Mr. Smead, was in the custody of his father. Before working for Human Resources, she had worked as a barmaid at a lounge, and had worked as a free-lance barmaid and waitress. She had lived with a Mr. Cole-men for about one and one-half years before August, 1976, and before that had shared quarters with two other gentlemen. From August, 1976, until January, 1977, however, Scherry lived with her parents and with Rodney. Then when she moved out of her parents’ home in January, 1977, Rodney lived with her until the hearing on the motion to modify.

During the 1976-1977 school year, Rodney attended a school about four blocks from his grandparents’ home in Independence. The house to which his mother and he moved in January, 1977, was located four or five miles from that school. His mother would take him to school each morning, and he would walk to the grandparents’ home after school was dismissed, where his mother picked him up when she got off work. Rodney continued his Boy Scout activities while staying with his grandparents and his mother. He participated in school sponsored recreation, such as rollerskating parties. He and his mother went to the park, ate out, and went to “lots of shows”.

Truthfully, Rodney did not flourish in his mother’s care after they moved from the grandparents’ home. He had missed one day of school before the move. From then till the end of the school year he missed 25 days. His school performance deteriorated. He was frequently ill (his mother: “. . . stomach problems stomach aches . . . real bad headaches . . . throwing up . it’s mental ... I guess he makes hisself sick . . . ”), and the grandmother would sometimes be called to pick him up at school. He was taken to a physician, and was visiting a psychologist once a week. The syndrome is quite familiar to judges who hear child custody disputes between parents.

Rodney himself was interviewed by the court in chambers, with both attorneys present. He carefully avoided expressing any preference between his parents.

The court’s order, besides transferring primary custody of the child to his father and authorizing his removal to California, provided also for two-month summer visits with his mother in Missouri, and for Christmas visits to Missouri in alternate years, with the travel expense to be borne by the father. This will allow the maintenance of a continuing relationship with his mother and his maternal grandparents. The young mother, for whom Rodney expressed a warm filial love, seemed at the time of the trial to be following a more purposeful and ordered life. The grandparents — the grandmother testified at the trial — come through as rather sturdy, sensible people.

It would be hard to improve upon the judgment, and it is affirmed.

All concur.


author: HIGGINS, Special Judge.

text:
    In re the MARRIAGE OF Bordia C. WILLIAMS, Petitioner-Appellant, and Sullivan Williams, Jr., Respondent.
    No. 29785.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    John H. Foard, Jr., Foard & Foard, Kansas City, for petitioner-appellant.
    John P. Ryan, Jr., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   HIGGINS, Special Judge.

Appeal from decree in dissolution of marriage. In question are the division of marital property and denial of maintenance. Affirmed.

Bordia and Sullivan were married August 15,1953, and lived together until August 9, 1976, at which time she was almost 60 years of age and he was some 10 years younger. They had no children. She attributed breakdown of the marriage to her husband’s alcohol abuse and personal violence toward her, including beatings and statements that he did not love her and had married her for convenience. He admitted drinking in face of his wife’s disapproval, but denied physical violence and abusive language toward her except in self-defense.

Sullivan had worked for General Motors for 25 years. His wages were $11,082 in 1974, $14,647 in 1975, and $15,800 in 1976. In 1962 he began a lawn service business to supplement income. It brought in around $100 per month for eight to ten years. It showed, for income tax purposes, a net loss of $19 in 1974 and a net profit of $759 for 1975. Bordia had served as homemaker and managed the couple’s finances including her husband’s earnings. She had been previously married and had never been employed except as an elevator operator when she was in school. In 1974-75 she helped her brother through a 16-month illness for which he paid her $1,500.

Until 1966 the couple lived in the lower portion of a duplex which Bordia purchased prior to this marriage with funds inherited from her first husband. She used rentals to pay the mortgage and sold the property in 1971, after which the couple bought a home at 2701 East Meyer Boulevard where they resided until their separation. Bordia placed a value on the home of $50,000 subject to a $19,000 mortgage. The couple also owned one' and a half lots in Wentzville which were acquired from Sullivan’s father and uncle for payment of 7-years’ delinquent taxes amounting to three or four hundred dollars. Income tax returns for 1974 and 1975 showed the property earned $20 per year for sign rental. Taxes averaged $100 per year and mowing cost $25 per year. Bordia valued furnishings and appliances in their home at seven or eight thousand dollars. The couple also owned a 1974 Chrysler, a 1967 Dodge Dart, and a 1962 Dodge pickup. Their liquid assets included a $1,000 treasury note, seventeen $25 E bonds, and two insurance policies on Sullivan’s life with cash surrender value of $3,400. Equipment of the lawn service business consisted of a chain saw, three lawn mowers, and a sprayer, valued at $750.

Bordia listed and estimated her living expenses at $1,300 per month. Sullivan listed and estimated his living expenses at $801 per month. His actual expenses ran about $700 per month.

Bordia suffered a heart attack following a beating by Sullivan in 1962, and has been on medication and under the care of a physician since. She sustained a back injury in a rear-end automobile collision in 1973 for which she has a pending cause of action. She also suffers from poor equilibrium. She had gall bladder surgery in 1969. She feels she is not able to be employed. Her doctors’ records were in evidence. Sullivan denied her inability to work. Sullivan had undergone “four operations, two leg strip-pings and one hernia and one hemorrhoid.” He is on medication for a prostate condition.

In the decree of dissolution, the court found the marriage irretrievably broken; the presence of marital property for division; the cause' for dissolution equally shared as such fault pertains to division of marital property; a disproportionate division of marital property in favor of petitioner; and both parties physically able to work and provide his own livelihood. In division of marital property, the court awarded Bordia the $50,000 residence, its furnishings and appliances, with direction to hold Sullivan harmless on' the $19,000 encumbrance. She also received the 1974 Chrysler, and her pending cause of action. The property awarded her amounted to $41,000, not including some furs, imported dishes, and her personal injury action. Sullivan was awarded the Wentzville property at a value of $400, the lawn service business and its assets, the Dodge Dart and pickup truck, the $1,000 treasury note, the 17 E bonds worth $25 each at maturity, and the two insurance policies. The property awarded him amounted to approximately $7,000. Both parties received their personal effects as separate property divested of the other’s interest. The court denied petitioner’s request for maintenance and awarded her $500 for attorneys’ fees.

Appellant accepts the court’s decree except to contend (I) that the court “erroneously applied the law by disregarding the mandatory provisions of * * * Section 452.330 [RSMo], in that the Court did not consider the value of the Wentzville property before dividing the marital property”; and (II) that the denial of maintenance “was against the weight of the evidence” in that it was based on erroneous findings that she is able to support herself, that fault was equal, and that the Wentzville property was worth but $400.

Appellant argues (I) that the court failed to “inform himself” of the actual value of the Wentzville property, and that such action contravenes the provision in Section 452.330 RSMo to consider the value of property set apart to each spouse in arriving at a division of marital property.

Section 452.330.1(2) RSMo provides “the value of the property set apart to each spouse” is one of four enumerated relevant factors in a division of marital property. The Wentzville property is concededly marital property; hence Section 452.330.1(2) does not require the trial court to consider its value in effecting a division of property. This does not mean that the value of marital property is irrelevant to its division; it means only that the court’s judgment concerning value of marital property in this case is not erroneous under Section 452.330.-1(2), supra.

It may not be said on this record that there was no evidence to support the value placed on the Wentzville property. There was evidence to show cost of acquisition, $300 to $400; and sign rental income of $25, and mowing expense of $100 in each of two years, all of which indicated also that the land was vacant. Petitioner adduced this evidence and, if she was not satisfied with what it showed as the value of such property, she should have gone forward with her burden of proof.

Appellant argues (II) that because of her age and unemployability and her husband’s wages, the court should have awarded maintenance to her.

Under Section 452.335 RSMo, maintenance is to be allowed a childless wife only when she lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs, and she is unable to support herself through appropriate employment. The evidence here does not demonstrate an abuse of the court’s discretion or compel an allowance for maintenance. Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976); In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976). See also Commissioners’ Note, § 308, 9 Uniform Laws Annotated 494 (1973); and compare In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977), where spouse denied maintenance had custody of a 9-year-old child.

Appellant cites a number of cases, Butcher v. Butcher, 544 S.W.2d 249 (Mo.App.1977), In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975), Goff v. Goff, 557 S.W.2d 55 (Mo.App.1977), In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977), Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975), In re Marriage of Dodd, 532 S.W.2d 885 (Mo.App.1976), LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977), all of which are distinguishable in that they affirmed exercises of discretion in awards of maintenance.

Judgment affirmed.

All concur.

      . Cf. V.M. v. L.M., 526 S.W.2d 947 (Mo.App.1975); Turpin v. Turpin, 570 S.W.2d 831 (Mo.App.1978); Abney v. Abney, 575 S.W.2d 842 (Mo.App.1978).