author: DOWD, Judge.

text:
    In re the MARRIAGE OF Patricia POWERS, Appellant-Respondent, and Robert Powers, Respondent-Appellant.
    Nos. 36328 and 36345.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 16, 1975.

      Paul Brackman, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, for respondent-appellant.
    Maureen Swihart, Klamen, Summers & Compton, Norman W. Drey, Jr., Clayton, for appellant-respondent.
   DOWD, Judge.

Both parties to a suit for dissolution of marriage appeal the trial court’s amended decree of June 17, 1974 as it relates to various aspects of a maintenance award, division of marital property, child custody and allocation of attorney fees.

The wife objects to the trial court’s decree on three grounds: 1) that the husband was given an excessive amount of temporary custody; 2) that the amount and duration of the maintenance awarded was unreasonable, and 3) that the husband was awarded an excessive amount of marital property. The husband, in turn, argues that the trial court erred by including as marital property his interest in his company’s profit-sharing plan, his stock interest in the company, and, finally, in failing to rule that a loan made by his mother was a lien against the marital home for which the wife should be responsible. He also objects to the award to the wife of $8,000 in attorney fees. We decide on appeal whether the trial court abused its discretion in ordering any of these provisions. Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975); Page v. Page, 516 S.W.2d 537 (Mo.App.1974). We also consider the adequacy of the award. Phillips v. Phillips, 219 S.W.2d 249[10] (Mo.App.1949); Jenkins v. Jenkins, 396 S.W.2d 268[7] (Mo.App.1965).

The wife filed suit for divorce against the husband, on May 8, 1972, after 10 years of marriage. The proceedings, which began February 14,1974, are governed by the new Missouri dissolution of marriage statute, §§ 452.300-452.415, RSMo.Supp.1973, since a judgment had not been rendered prior to January 1, 1974.

The record is complete as to the financial conditions of both parties. The husband’s gross income, primarily from the company he operated with two partners, had exceeded $90,000 for each of the preceding three years. In addition, he enjoyed certain fringe benefits such as payment of 90% of his car expenses and 60% of his membership in a tennis club. The husband estimated his expenses to be $15,600. The wife had sold her house shortly after the marriage and used the proceeds to help her husband start an import business. The business was unsuccessful and closed within two years after its beginning. The wife had had some experience in the fashion field, but had not worked except for an occasional, special job, since the birth of the parties’ son, a year after the marriage. The wife testified she was working at the time of the trial as a fashion coordinator and earned $800 a month after working for one year. She also testified that she did not want to work and preferred to stay home with her son, who was nine years old at the time of trial. She estimated her monthly expenses to be $2,320. A substantial amount of such expenses represent costs for her son including music, sport lessons and private schooling.

The trial court modified its original decree of dissolution of marriage after considering motions by both parties. The amended decree awarded maintenance of $300 a month to the wife until her son reached the age of 16 (a period of 7 years) and $700 a month in child support. The trial judge divided the various pieces of real estate, personal property and intangibles which were deemed marital property and awarded property valued at $95,811 to the wife, including the marital home valued at $42,000. The husband was awarded marital property worth $107,500. The husband was also directed to pay the wife’s attorney’s fees in the sum of $8,000. Finally, the modified decree awarded primary custody of the couple’s child to the wife with the husband having temporary custody as follows: 1) from 4 p. m. each Tuesday until 9 a. m. each Wednesday; 2) from 5 p. m. Friday until 7 p. m. Sunday on the 1st and 3rd weekends of every month; 3) from 2 p. m. Saturday until 7 p. m. Sunday on the fourth weekend of each month; 4) three weeks each summer; 5) on Christmas Eve each year, on Thanksgiving Day in even numbered years and on Easter on odd numbered years.

The first point in issue, which is the extent of temporary child custody to the father, is governed by § 452.375 of the new Missouri divorce law.

The overriding consideration in determining child custody under the new law as well as the old, is the best interest of the child. It has been the rule that the appellate court will not disturb the trial court’s custody order unless it is clearly erroneous and the welfare of the child requires a different disposition. Glaves v. Glaves, 523 S.W.2d 169 (Mo.App.1975); J.L.W. v. D.C.W., 519 S.W.2d 724, 729-730 (Mo.App.1975); Northrup v. Sieve, 517 S.W.2d 470, 473 (Mo.App.1974); Wood v. Wood, 400 S.W.2d 431, 436-437 (Mo.App. 1966). Due regard must be given to the trial court’s opportunity to judge the credibility of witnesses, R.L.S. v. J.E.S., 522 S.W.2d 5, 7 (Mo.App.1975), and' to evaluate the intangibles which do not appear in the record in child custody cases. Graham v. Graham, 428 S.W.2d 941, 944 (Mo.App.1968). The wife argues that the trial court abused its discretion in granting the husband excessive temporary custody. The main thrust of her argument is that the son’s best interests will not be served by having him frequently shift back and forth between his parents. We hold that the trial court did not abuse its discretion in awarding this extent of temporary custody to the husband. The wife refers us to the language of the Wood case, which says:

“Generally speaking, except for good reason, the child should not be shifted periodically from one home to another and as in most instances the interest of the child is best served from a standpoint of stability if one or the other parent is given full custody with reasonable visitation rights to the other parent.” Wood v. Wood, supra, at 437.

The Wood case, however, is readily distinguishable from the instant case. In Wood, this court was reversing an order of the trial court which provided that exclusive and undisturbed custody would change from one parent to the other each year. The child would have been shifted back and forth for alternate periods of full custody. In the present case, the wife has full custody while the husband has limited, temporary custody on enumerated days, which might be compared to the “reasonable visitation rights” referred to in the Wood case. Similarly in the case of M... L... v.M... R..., 407 S.W.2d 600 (Mo.App.1966), there was a significant reduction in the. amount of custody time awarded to the mother, including the elimination of one weekend each month. In that case, both parents had asked for an arrangement with less frequent changes of custody.

A child should ideally have well founded association with both of his parents. In Schumm v. Schumm, 223 S.W.2d 122 (Mo.App.1949), it was held that the rights of both parents must be respected with the court stating, 1. c. 125:

“. . . that where both parents are proper persons, not only do both of them have the right to reasonable access to the child, but in fact the child’s best interests will be served by making it possible for it to receive the benefits to be derived from association with both its parents.”

The appellate court will change the trial court’s custody decree if it determines that the visitations with the father are of unreasonable frequency or duration. Wagner v. Wagner, 465 S.W.2d 655 (Mo.App.1971). In Wagner, the court decided that visitation with the father one weekend every two months, one week in the summer and three days in December was insufficient and increased it to one weekend a month, two weeks in the summer and three days in December. However, each child custody case must be decided on its facts, and it is difficult to compare the types of awards which are made. The wife refers us to several cases, including Wagner, to illustrate that the extent of the temporary custody in this case was unprecedented and unreasonably excessive. But in light of the testimony of the wife and husband at trial, we are not prepared to say that the trial court abused its discretion in awarding the husband the temporary custody of the son as set out above. There is evidence that the husband has a healthy, close relationship with his son and spends considerable time playing with and coaching him in sports. The son also has the occasional opportunity to see his older half-sisters and half-brother when he is at his father’s home or in his father’s custody. The husband also explained at trial his reasons for wanting custody of the son on Tuesday nights. The mid-week visit would provide the father and son relationship with needed continuity and allow the father to help his son with his homework on a regular basis. The wife argues that the extent of the husband’s custody deprives her of her son’s companionship on any permanent basis. But this is not true since she will have custody 1½ weekends a month, four nights a week, all but three weeks during the summer and on most holidays. The allocation of custody time between the two parents, both of whom appear to be fit and proper persons, seems to be both a reasonable compromise and, most critically, in furtherance of the child’s best interests.

The second issue concerns the wife’s contention that the trial court abused its discretion in awarding her only $300 a month maintenance and terminating maintenance altogether when her son reaches 16 (7 years after the trial). The award of maintenance is governed by § 452.335. The statute clearly gives the trial court a great deal of discretion. It may grant maintenance only if the two conditions specified are present. The court has discretion as to amounts and the duration of maintenance payments after considering various factors, including, but not limited to those enumerated within the statute.

Our review in a dissolution of marriage case is the same as it was in a divorce case. It is the duty of the appellate court to review the case de novo upon both the law and the evidence, giving due deference to the trial court’s assessment of the credibility of the witnesses. While the judgment of the trial court should not be set aside unless erroneous, “such is not a mandate prescribing judicial ‘blindness’ because in reviewing this case de novo this court must be cognizant of the further duty to reach its own conclusions based on the law and the evidence presented by the case.” L_ J_ S_ v. V_ H_ S_, 514 S.W.2d 1, 4 (Mo.App.1974). The deference accorded the trial court’s findings will vary, depending on the importance of the parties’ credibility to a proper determination of the issue. J. v. K., 419 S.W.2d 461, 466 (Mo.App.1967). It is the duty of the appellate court to review all of the evidence and reach its own conclusion as to the proper judgment to be entered. The court is to enter such judgment as the trial court should have entered. Glaves v. Glaves, 523 S.W.2d 169, 172 (Mo.App.1975). Therefore, when an appellate court finds the awarded amount to be inadequate, it will order the amount increased. Phillips v. Phillips, 219 S.W.2d 249 (Mo.App.1949); Jenkins v. Jenkins, 396 S.W.2d 268[7] (Mo. App.1965); Howard v. Howard, 171 S.W.2d 92 (Mo.App.1943); Bowzer v. Bowzer, 236 Mo.App. 514, 155 S.W.2d 530 (1941); Vordick v. Vordick, 205 Mo.App. 555, 226 S.W. 59 (1920). In the present case, the record is quite complete as to all the relevant factors, and on the basis of the information in the record and for the reasons which follow, we find that the wife’s award for maintenance is inadequate and should be increased from $300 to $500 per month and that there should be no provision for termination of the award at this time.

/

The husband does not challenge the fact that the wife is entitled to some award of maintenance under § 452.335, subd. 1. An analysis of the (nonexclusive) factors enumerated in § 542.335, subd. 2 supports the increase to $500 a month. First, examining the financial resources of the wife and her ability to meet her needs independently, we find that her estimated expenses total $2,320 while she earns only $800 a month. It is true that her share of the marital property is valued at approximately $96,000. But the bulk of her marital property consists of a home, its furnishings and a car which she needs in order to maintain the standard of living that was established during the marriage. (See § 452.335, subd. 2(3)). The remainder of her part of the marital property, consists of three small pieces of real estate, two promissory notes and two shares of stock which probably do not produce a substantial amount of income. This court has previously decided before passage of the new Dissolution of Marriage Statute that a divorced woman who is unable to maintain herself in the manner to which she became accustomed during marriage need not sell her small remaining assets before being entitled to alimony. Butler v. Butler, 379 S.W.2d 175,180 (Mo.App.1964). The holding of the Butler case continues to be appropriate under the new law. Likewise, the Legislature specified in the law that the trial court shall consider the standard of living established during the marriage as a factor in determining the amount of a maintenance award (452.335, subd. 2(3)).

Secondly, the statute requires that we look at the time necessary for the wife to acquire sufficient training to find suitable employment. She is already working at a job for which she is adequately trained. Third, the standard of living established during the marriage is rather high. The parties lived in an expensive house, employed a maid and a gardner, took numerous vacation and business trips, belonged to tennis clubs, and enjoyed numerous sports events. Prior to the enactment of the new statute, it was determined that a wife was entitled to continue to live in the manner to which she had become accustomed if the former husband had sufficient means to provide such support. The former standard of living has always been one of several factors considered in setting the amount of the award. Mortensen v. Mortensen, 469 S.W.2d 852, 855 (Mo.App.1971); Butler v. Butler, 379 S.W.2d 175, 180 (Mo.App.1964). In view of the other facts of this case, there is no reason why the wife should not continue to enjoy a suitable standard of living to which she was accustomed. This is particularly true in light of the fourth factor, i. e., the marriage was of 12 years’ duration at the time of the decree. Fifth, the wife was 49 years old at the time of the decree, so, although she was in good physical and mental condition, she probably would not advance any considerable degree in her field as fashion coordinator. Sixth, the husband has the ability to meet his needs while meeting those of the wife’s, since his annual income is over $90,000. Finally, the conduct of the wife during the marriage was, from all the evidence, pristine.

Considering these factors, we conclude that not only should the maintenance award be $500 per month, but that there should be no provision for termination at this time. It is true that the trial court has the power to set a maintenance order “for such periods of time as the court deems just.” § 452.335, subd. 2. We find, after a consideration of the factors specified in Section 452.335, subd. 2, that the trial court erred in ordering all maintenance payments to cease after seven years time. The trial court had no evidence before it that the circumstances of the parties would be markedly different in seven years. Even if the wife reduces her standard of living somewhat, her income shows no likelihood of catching up with her living expenses. The wife is not likely to advance to any appreciable extent in her career because of her age and the nature of her employment. She is already adequately trained for her job. The husband’s income shows no likelihood of diminishing in the future and is sufficient to comfortably provide for his own needs while providing maintenance for his former wife. All the evidence indicates that the wife’s financial prospects will not improve dramatically in the future and that the husband’s means will not suffer in the future. Given this situation, the court should not speculate that in seven years the wife’s income could meet her living expenses and that the husband’s income would no longer be sufficient to provide for his own needs while providing maintenance. Such a determination should be made in the future in a proceeding for modification of the award when the court would have evidence of any changed circumstances before it.

Our conclusion that the initial maintenance order should not include a termination date is supported by a recent California decision under a comparable statute. The 1970 California divorce statute provides, in part, as follows:

“In any judgment decreeing the dissolution of a marriage or a legal separation of the parties, the court may order a party to pay for the support of the other party any amount, and for such period of time, as the court may deem just and reasonable having regard for the circumstances of the respective parties, including the duration of the marriage, and the ability of the supported spouse to engage in gainful employment without interfering with the interests of the children of the parties in the custody of such spouse . ” California Civil Code, Section 4801(a). (Emphasis added).

The foregoing statute was interpreted in In re Marriage of Rosan, 24 Cal.App.3d 885, 101 Cal.Rptr. 295 (1972). The trial court had awarded the wife $400 per month the first year, $300 per month the second, $200 per month the third and nothing thereafter. The court reversed, holding that the wife was entitled to a larger amount and that any change in the award should come later, on a motion for modification, only in the event of changed circumstances. The wife was not then employed and was about to take courses in real estate. The court found that her future earnings were unknown, and, therefore, any changes in the maintenance should be made later when they could be based on reasonable inferences from the evidence, rather than on mere hopes or speculation. In re Rosan, 24 Cal. App.3d 885, 896, 101 Cal.Rptr. 295, 303. The California court also noted that in a long-time marriage, where a wife has been unemployed, she has not only failed to develop her own earning capacity, but has presumably contributed to the development of her husband’s earning capacity, which has become the most valuable economic asset of the marriage. In re Marriage of Rosan, 24 Cal.App.3d 885, 898, 101 Cal.Rptr. 295, 304. We agree with the view expressed in the Rosan case and find that the maintenance award should be $500 a month until modified upon application.

Our decision should not be interpreted as a denial of the trial court’s authority to make maintenance awards of limited duration. On the contrary, the new statute specifically granted the trial judge this authority. However, awards of limited duration should not be based on speculation as to the future conditions of the parties. Awards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial conditions of the parties or at the least some reasonable expectation that such a change will occur.

The next issue concerns the division of marital property controlled by § 452.330. First, the wife argues that the award to the husband of property valued at $101,500, from a total of $197,311 in marital property was excessive. Her basic argument is that the type of property awarded to the husband is more marketable than that awarded to her. We find that the award to the husband was not excessive. The statute does not comment on what type of division should be made of income-producing property or more readily marketable property. Nor is it controlling that the husband admitted to adultery. His conduct during the marriage is only one factor to be considered under § 452.330, subd. 1(4). We cannot find an abuse of discretion in awarding the husband slightly more than half of the total value of the marital property.

The husband, on the other hand, argues that the wife was given an excessive amount of marital property by virtue of the trial court’s decision as it relates to three specific items. The husband states initially that the trial judge strove for parity but failed to achieve it because of incorrect characterization of the three items. We observe that it is not necessary that there be parity in the division of marital property. Reed v. Reed, 516 S.W.2d 568, 570-571 (Mo.App.1974); Symposium on Dissolution of Marriage: Property Provisions, Fowler and Krauskopf, 29 Mo.Bar Journal 508 (1973). This is particularly true here, where the husband has admitted to improper conduct during the marriage. § 452.330, subd. 1(4). But we will examine each of the husband’s contentions in order to decide if there was anything incorrectly characterized as marital property.

The husband’s first argument is that his interest in the profit-sharing plan of his company was improperly included as marital property. Under § 452.330, subd. 3, “All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property. . . .” The husband does not argue that this presumption is overcome by one of the methods listed in subsection (2). But he argues in effect that his interest in the plan is not definite enough to be “property” within the meaning of the statute. He states that he has no use of the funds until he retires or leaves the employment of his company and therefore his interest in the plan cannot be considered without allowing for a resulting loss of earned income. The husband cites Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971), as authority for his position. In that case, the court held that the present value of possible future pension benefits under a police pension system was not a present asset and therefore could not be considered in making an award of alimony. The husband’s interest in the police pension fund in Robbins is clearly distinguishable from the husband’s interest in the plan in this case. In Robbins, if the husband would have resigned before the designated retirement age, he would have received only his own contribution and no part of the city’s contribution to the fund. The court held that although his interest could be viewed as “vested” in some sense, it was too speculative to be a present asset since it could be divested by contingencies. In the instant case, on the other hand, Article IX of the profit-sharing plan reveals that the husband has a present interest in his company’s contribution which is not subject to divestment, since he had participated in the plan for 5 years. Therefore, we hold that the trial court did not err in determining that the husband’s interest in the plan is part of the couple’s marital property under Section 452.330.

The husband’s second argument concerning the division of marital property is that the trial court erred in finding that the stock he owned in his company was marital property. The contention is that the presumption of § 452.330, subd. 3 is overcome since this stock is “property acquired in exchange for property acquired prior to the marriage” under § 452.330, subd. 2(2). We hold that the husband has not carried his burden of proof in order to overcome the presumption that this stock is marital property. The husband argues that he had a substantial business prior to the marriage and that it merely changed in its legal form from sole proprietorship to a corporation subsequent to the marriage. This is a possibility, but it is also possible that the change was one of substance rather than form. We can find no evidence in the record of the value of the sole proprietorship at the time of marriage or at the time of the formation of the company after the marriage. In fact the indirect evidence which exists on this point would seem to indicate that the sole proprietorship was not a substantial asset at the time of the marriage. The wife sold her home in order to put the proceeds into an import business with her husband shortly after their marriage. The husband testified that he borrowed money from his mother in order to buy his home in 1964 two years after the marriage. It would be pure speculation on our part to find that the husband’s business interest underwent a mere change in form after his marriage. He has simply failed to overcome the presumption that the stock in his company is marital property.

The husband’s final contention concerning the marital property is that the trial court erred in failing to find that the loan made by the husband’s mother was not a lien against the marital domicile. The husband admits that the loan would not be enforceable against a third party, but he contends that since the loan was made for the specific purpose of enabling the couple to buy the home, the wife should be given the responsibility of paying off the loan. This is a logical argument since the wife was awarded the home and was given responsibility for paying off its mortgage. But there is nothing which requires the court to specify that the wife should pay off the loan from the husband’s mother. This is particularly true since the testimony reveals that the wife was only vaguely aware of the loan and never saw the papers and did not know the size of the loan. Under these circumstances, we cannot find that the trial court erred in providing that the husband must pay the loan from his mother.

The final issue concerns the allowance of $8,000 in attorney fees to the wife. It is asserted that this is an excessive amount to charge against the husband. Section 452.-355 provides that the court “after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount” for the legal services rendered to the other party. The husband maintains that the wife was a “difficult and demanding client” who made excessive demands on her attorney’s time; that this is a “relevant factor” and therefore she should be made to pay at least part of her attorney fees. We find that under the circumstances of this case, the trial court did not abuse the discretion given it under the statute in requiring the husband to pay the full amount of his ex-wife’s fees.

The trial court has more authority under § 452.355 than it had prior to the enactment of the new statute. The new act authorized attorney fees for either husband or wife. The traditional test for allowance of attorney fees in divorce cases is whether the wife is possessed of sufficient means to prosecute the suit on her own, for if she had the means, the husband would not be required to pay for her fees. L_ J_ S_ v. V_ H_ S_, supra at 9; Toth v. Toth, 483 S.W.2d 417, 422 (Mo.App.1972); Engler v. Engler, 455 S.W.2d 36, 43 (Mo.App.1970). The award could not be excessive or unreasonable. Therefore, the test both before and after the enactment of the new statute (§ 452.355) was whether the attorney fee was excessive or unreasonable. After examining the cases decided before the enactment of this statute and considering the evidence as to the financial resources of the parties, we do not believe the trial court abused its discretion in the award of attorney fees.

The cases cited by husband are distinguishable. In Engler, supra, where the wife was denied an award of attorney fees, the husband and wife earned the same gross income, the wife had a checking account to cover monthly bills and $1,000 in a savings account, while there was no evidence that the husband had any savings or, checking account. Similarly, in O’Brien v. O’Brien, 485 S.W.2d 674 (Mo.App.1972), the wife had $15,000 in a savings account and earned more than the husband. In the case before us, the husband earns more than $90,000 a year while the wife earns $9,600 a year. The marital property at her disposal consists of assets which are not readily liquidated. The trial court did not abuse its discretion in accepting the wife’s testimony that she did not have assets available to pay her attorney’s fees. See: Larison v. Larison, 524 S.W.2d 159 (Mo.App.St.L.1975); McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974); Lester v. Lester, 452 S.W.2d 269 (Mo.App.1970).

The husband cites Berbiglia v. Berbiglia, 442 S.W.2d 949, 952 (Mo.App.1969) where the sum of $1,000 in temporary fees was held not excessive. This does not indicate what would be excessive. Neither is Harriman v. Harriman, 393 S.W.2d 103, 106 (Mo.App.1965), determinative. In that case, the award of $2,700 to an attorney for 96 hours of work which he testified was worth $3,000 was held not to be excessive. In the present case, the wife’s attorney testified that he charges $50 an hour and his fee would be approximately $8,000. The fact that one lawyer charges $31 an hour while another charges $50 an hour does not make the higher amount excessive.

The husband’s argument that his wife was a demanding client who took up an inordinate amount of her counsel’s time and that this fact is a “relevant factor” to be considered in allowing for attorney fees is theoretically sound, but it is not adequately established that she was “difficult and demanding.” Her attorney’s testimony did not characterize her as such although, admittedly it would not be in his interest to do so. It is true that the attorney’s bill included 140 telephone calls, but the attorney testified that many of the calls were initiated by him rather than the wife. On the record here we do not find the $8,000 award for attorney fees excessive.

In summary, we affirm the trial court’s dissolution decree except insofar as it relates to the maintenance award. We remand with directions to order a maintenance award in the amount of $500 per month without a provision for termination.

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

      . Statutory references are to RSMo.Supp. 1973 unless otherwise indicated.

      . For an excellent analysis of maintenance and support under the new Dissolution of Marriage Statute see an article in 29 Mo.Bar Journal 516 (1973) by Mr. Robert G. Ruh-Iand, Director of Judicial Administration for the St. Louis County Circuit Court.

      . § 452.375. “The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
      (1) The wishes of the child’s parents as to his custody;
      (2) The wishes of a child as to his custodian;
      (3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
      (4) The child’s adjustment to his home, school, and community; and
      (5) The mental and physical health of all individuals involved.”

      . Under § 452.335 “. . . The court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
      (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
      (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
      2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
      (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
      (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
      (3) The standard of living established during the marriage;
      (4) The duration of the marriage;
      (5) The age, and the physical and emotional condition of the spouse seeking maintenance;
      (6) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
      (7) The conduct of a party seeking maintenance during the marriage.”

      . Subsequent California appellate decisions have distinguished Rosan where there had not been a high standard of living during the marriage and the husband did not have a large income. In re Marriage of Patrino, 36 Cal.App.3d 186, 111 Cal.Rptr. 367 (1974); In re Marriage of Dennis, 35 Cal.App.3d 279, 110 Cal.Rptr. 619 (1973), and where the wife was a doctor with a substantial income of her own. In re Marriage of Cosgrove, 27 Cal.App.3d 424, 103 Cal.Rptr. 733 (1972).

      . Clearly, as before the new Dissolution of Marriage Law, marital misconduct should not serve as basis for awarding excessive alimony for punishment. McM. v. McM., 506 S.W.2d 14 (Mo.App.1974).


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Grover Cleveland McKINNEY, Jr., Appellant.
    No. 35902.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 9, 1975.

      Robert M. Kaiser, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Grover Cleveland McKinney, Jr., charged by indictment with the murder of Michael Johnson and the robbery of Dorothy Johnson, was found guilty by a jury of both charges. The jury assessed his punishment at life imprisonment for the murder, but it was unable to agree on the punishment for the robbery. The trial court assessed the punishment for robbery at imprisonment for a term of twenty-five years.

A jury reasonably could find the following facts. Eddie Thomas and James Johnson (no relation to Michael Johnson) went to the home of Michael and Dorothy Johnson at 2312 LaSalle Street, St. Louis, Missouri, about 8:30 or 9:00 o’clock on the evening of February 16, 1973. They drank beer with Michael in the kitchen of the house. At approximately 9:30 o’clock appellant and Willie Williams knocked on the door of the Johnson house. Michael answered the door and an argument of some nature occurred. Dorothy was in the bedroom with her two children. She went into the hallway to see what the dispute was about and saw appellant with a gun in his hand. She had been acquainted with appellant for about eight years, and used “to go with him.” She returned to the bedroom and was attempting to obtain a gun from under the bed when Williams entered the room. He was armed with a knife with a “five-inch blade, more or less,” and he grabbed her by the hair and while holding on to her hair he reached under the bed and obtained the gun. Dorothy was also acquainted with Williams and had known him “from grade school.” Williams asked for money, and Dorothy gave him a coin purse containing $40.00. He demanded more money, and when she refused he grabbed her oldest child by the arm and said “you love your kids, don’t you.” Dorothy then obtained about $400 from a footstool located in the bedroom and gave it to Williams. About this time Dorothy heard two shots and heard her husband “holler out.” Someone, whom neither Eddie Thomas nor James Johnson saw, went to the kitchen and told them to “lay on the floor.” Appellant entered the bedroom with a gun in his hand and told Williams to “grab some jewelry off the dresser” and to “come on.” Williams grabbed “some stuff” and he and appellant “went out.” Dorothy found her husband lying on the floor of the front room. He died from the effect of the gunshot wounds.

This is a companion case to State v. Williams, 522 S.W.2d 327 (Mo.App.1975) affirming the judgment whereby Willie Williams was found guilty of murder and robbery arising out of the above circumstances.

Appellant first contends that the trial court erred in submitting the case to the jury because (a) there was “absolutely no evidence connecting the appellant with a murder,” and (b) there was no evidence that appellant “participated in or was a party to the robbery which took place at the time of the shooting.”

This contention borders on the frivolous. Appellant argues that this was a circumstantial evidence case and “the circumstances must be consistent with each other and with the theory of the defendant’s guilt and inconsistent with innocence,” citing State v. Burnley, 480 S.W.2d 881 (Mo.1972). No instruction on circumstantial evidence was requested and none was given. The evidence in this case was not wholly circumstantial, and therefore, even if requested, such instruction was not required. Note 2, to MAI-CR 3.42. We see no occasion to encumber the reports with a repetition of the standards to establish a circumstantial case. See, for example, State v. Aguilar, 429 S.W.2d 754 (Mo.1968); State v. Burton, 357 S.W.2d 927 (Mo.1962). The statement of the evidence clearly establishes a submissi-ble case on the murder charge, and that appellant and Williams were acting in concert as to the robbery. Appellant’s first point is totally without merit.

Appellant seeks to invoke the “plain error rule” in his second point. He contends that Instruction No. 3 submitting robbery was inconsistent with the indictment because he was therein charged with robbery by means of a dangerous and deadly weapon, a “handgun,” while Instruction No. 3 submitted that the robbery was committed by means of a “knife.” Appellant did not object to the testimony concerning the use of a knife on the ground that it was at variance with the indictment, and he concedes that he neither objected to Instruction No. 3 for this reason nor did he raise this point in his motion for new trial.

As a general rule, an appellate court “will not consider any matter relating to instructions as ‘plain error’ unless the court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, * * State v. Bridges, 491 S.W.2d 543 (Mo.1973). This did not occur in this case.

An indictment charging first degree robbery by means of a dangerous and deadly weapon need only allege the language of the statute to be sufficient. State v. Moore, 347 S.W.2d 195 (Mo.1961). To commit the offense of first degree robbery as defined by § 560.120 property must be taken “by violence to his person, or by putting him in fear of some immediate injury to his person.” By § 560.135 the penalty for first degree robbery may be enhanced if the offense was committed by means of a “dangerous and deadly weapon.” There is no statutory requirement that the “dangerous and deadly weapon” be defined or identified in the indictment. Therefore, the allegation in the indictment that the weapon was a “handgun” was surplusage. State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). In this case both the indictment and Instruction No. 3 charged appellant with “putting said Dorothy Johnson in fear of immediate injury to her person,” and for that reason the requirements of § 560.120 were satisfied by each. Also, the indictment and the instruction charged appellant with having committed the robbery “by means of a dangerous and deadly weapon.” The evidence showed that the robbery was committed by use of a knife, but that was nothing more than proof that it was committed by a dangerous and deadly weapon, the only essential allegation in the indictment on this issue. Therefore, appellant was not prejudiced by the superfluous allegation in the indictment that the dangerous and deadly weapon was a handgun, nor was he prejudiced because the instruction unnecessarily submitted the established evidentiary fact that the dangerous and deadly weapon was a knife.

Since the trial of this case, MAI-CR 7.62 has become effective (and mandatory) as the instruction to be used in a case of first degree robbery by means of a dangerous and deadly weapon. No provision is made therein for a description of the weapon. The submission is that the defendant “by means of a dangerous and deadly weapon took the property * * The identification of that weapon is properly a matter of proof.

Under the circumstances, appellant was not misled or prejudiced in any way by the variance, and such variance certainly did not constitute plain error within the meaning of Rule 27.20(c).

Appellant’s next point is that he was “denied effective assistance of counsel.” This is a frivolous contention.

First, appellant was represented at the trial by Mr. Dan Reardon, generally recognized as one of the most capable and experienced attorneys in the trial of criminal cases in the St. Louis area. In reference to this contention in the motion for new trial, the trial court commented that he knew of no one else “more knowledgeable in the field of criminal law,” and that it was “regrettable * * * that lawyers of Mr. Reardon’s status have to take [the] abuse” here presented. We agree with that observation.

Appellant recognizes that in State v. Johnson, 506 S.W.2d 32 (Mo.App.1974), it was stated that the record on a direct appeal is rarely sufficient to pass on a claim of ineffective assistance of counsel, but he asserts it is sufficient in this case because defense counsel, “did not adequately cross-examine the witnesses, especially regarding Eddie Thomas and James Johnson and their staying in the kitchen and not responding to the noise and threats;” that counsel “did not object to the variance in method of force between the indictment Count II, and Instruction No. 3;” and he “did not fully develop for the jury testimony that would have shown other reasonable hypotheses.” This argument is not otherwise developed. The point is rejected by reason of the rule set forth in State v. Johnson, supra, and also on the merits when we accept appellant’s contention that the record on this direct appeal is sufficient to present the issue.

Appellant’s final contention is that the trial court erred in permitting the rebuttal testimony of Donnell Whitfield because it “did not tend to explain, counteract, repel, or disprove any of defendant’s testimony or evidence.”

Appellant elected to testify, and he stated that he knew both Michael and Dorothy Johnson and had known them for about eight years; that he went to their house on the evening of February 16, 1973 to purchase some “reefers,” or marijuana; that he did not shoot Michael Johnson; and that after he made the purchase he went to his “lady’s house” at 5889 Maffit where he was arrested on April 4.

After the close of the appellant’s evidence the State offered rebuttal testimony, as stated by the circuit attorney, to show the circumstances of the arrest about which appellant had testified. He further stated that appellant’s testimony gave “the impression that it was a simple arrest and nothing further,” and that he wanted the arresting officer to testify in rebuttal “as to how the arrest occurred.” Appellant’s objection was overruled.

Officer Whitfield then testified on rebuttal that he and four other officers went to 5889 Maffit Street and identified themselves as police officers, and that while talking to a person who identified herself as appellant’s wife, appellant attempted to flee the building by going through a trap door to the roof.

“Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence. * * * The scope of rebuttal testimony is largely within the sound discretion of the trial court, and unless the court abuses its discretion, or the defendant’s rights are prejudicially affected, an appellate court will not reverse on that ground even though the rebuttal testimony may not, strictly speaking, be proper rebuttal testimony. State v. Williams, 442 S.W.2d 61, 65 (Mo. banc 1969). In this case, evidence that at the time of his arrest appellant attempted to flee from the officers was material and competent, and such evidence could have been shown by the prosecution in the presentation of its case in chief as a circumstance to be considered by the jury. State v. Woodard, 499 S.W.2d 553, 556 (Mo.App.1973); State v. Kilgore, 447 S.W.2d 544 (Mo.1969). The State apparently elected not to present this testimony in its case, but when the appellant testified in such a manner so as to give the impression that his arrest was a casual affair without incident, the State elected to explain or counteract such testimony of appellant, which it was entitled to do. Clearly, there was no abuse of discretion on the part of the trial court in permitting the rebuttal testimony of Officer Whitfield.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: RENDLEN, Judge.

text:
    James I. TALKINGTON, a minor, by James Lee Talkington, his next friend, et al., Plaintiffs-Appellants, v. J. S. ALBERICI CONSTRUCTION COMPANY, a corporation, and Lyle V. McLaughlin, Defendant-Respondent.
    No. 35758.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 9, 1975.

      Cox & Moffitt, Dallas W. Cox, Jr., St. Louis, for plaintiffs-appellants.
    Richard E. Baker, Kirkwood, for defendant-respondent.
   RENDLEN, Judge.

Plaintiffs appeal from an Order of the Circuit Court of St. Louis County sustaining defendant Lyle V. McLaughlin’s motion to quash service of process. By amended petition filed March, 1973, plaintiffs charged McLaughlin and co-defendant J. S. Alberici Construction Company with defective design, construction and installation of storm sewer grates, one of which allegedly caused minor plaintiff James T. Talkington to be thrown from his bicycle with resulting personal injuries.

Appearing specially and for the limited purpose of his motion, defendant McLaughlin moved the court to quash service of process. In support of that motion McLaughlin claimed to be acting within the course and scope of his authority as an official of the State of Missouri at the times mentioned in plaintiffs’ petition and entitled to immunity from suit as a public official and agent of the State. The trial court sustained the motion to quash on the 4th of October, 1973, followed by plaintiffs’ timely notice of appeal and jurisdictional statement. On the 23rd of October, the court made the following additional order:

“The order sustaining defendant McLaughlin’s motion to quash shall be deemed a final separate judgment for purpose of appeal.”

Defendant McLaughlin has filed two motions to dismiss the appeal. The first charging appellants’ brief with failure to meet the requirements of Rule 84.04, V.A.M.R., is not well taken and therefore denied. The second asserts the quashing order was not a final and appealable order. Considering that motion, we recognize that an order which does no more than quash purported service of process does not constitute a final judgment from which an appeal will lie, Continental Food Corporation v. National-Northwood, Inc., 470 S.W.2d 315, 317[3] (Mo.App.1971), since, when the writ is quashed, the case stands as if no writ had been issued. At first blush it would appear the appeal is premature; however, examination of the record discloses the court treated defendant’s motion as other than a motion to quash and instead ordered dismissal. The order effectively disposed of plaintiffs’ claim against defendant McLaughlin and having been specifically designated as a final separate judgment for purpose of appeal, is an appealable order. Rule 81.06, V.A.M.R.; Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974). Defendant’s motion to dismiss the appeal as premature is denied, permitting consideration of the merits.

Defendant’s motion, captioned “motion to quash” is in pertinent part as follows:

“Comes now Defendant Lyle V. McLaughlin and through his Attorney Richard E. Baker, and appearing specially and for this limited purpose moves the Court to make and enter its Order Quashing service of process herein, . . . ”

Defendant cites several cases for the proposition that a motion to quash is appropriate to stop inquiry at the threshold of a proceeding; however, the Missouri and Federal cases cited involve either motions to dismiss or for summary judgment rather than motions to quash and thus provide no support for defendant’s contention.

It is apparent from the record of the motion hearing that plaintiffs reasonably believed the motion to be what it appeared on its face (i. e., a motion to quash service of process) and correctly argued the tendered testimony in support of the motion was irrelevant. Though plaintiffs were correct in that contention as the tendered testimony was irrelevant and nothing appears to justify a quashing order, it is apparent the court treated the motion as one in the nature of a speaking motion to dismiss under Rule 55.31, Y.A.M.R., (§ 509.-290, V.A.M.S.), or as a motion for summary judgment under the provision of Rule 74.04, V.A.M.R. To some extent Rule 55.31 (effective when the motion was submitted) and the summary judgment procedure under Rule 74.04 were cumulative; however, defendant did not comply with the procedural requirements of either.

Plaintiffs understandably complain there was no reasonable opportunity at that point in the proceeding for them to present evidence that defendant McLaughlin was in fact not entitled to claim governmental immunity. Plaintiffs could reasonably expect the hearing on the motion to quash was to test the sufficiency of service of process and were not chargeable with foreknowledge that the court would treat it otherwise. They were effectively denied a reasonable opportunity to prepare or present evidence in support of their contention that McLaughlin was in fact not entitled to claim immunity provided by the doctrine. On remand, defendant may take further action to raise the sovereign immunity question by appropriate pre-trial proceeding; however, plaintiffs must have the opportunity to raise the factual issues by appropriate affidavit or other proof under the procedure currently provided by the Rules. The cause is remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and remanded.

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

      . We assume McLaughlin framed his motion as one to quash seeking to preserve his special appearance yet raise a jurisdictional challenge. The motion to quash was inappropriate since under the then applicable Rule 55.31, (all rules are cited as effective at the time of trial unless otherwise noted) such matters could be raised by motion requesting dismissal “whether or not the same may appear from the pleadings and other papers filed in the cause,” Rule 55.31(a), § 509.290, V.A.M.S. It may be filed simultaneously with pleadings, Civil Rule 55.36, § 509.330, or joined with other motions provided for and then available to the defendant, Civil Rule 55.37, § 509.340, without waiver of the objection as to lack of jurisdiction over the person. As pointed out in Greenwood v. Schnake, 396 S.W.2d 723, 726 (Mo.1965), “having properly and timely filed his motion raising the jurisdictional question a defendant may thereafter plead over, . . . utilize all of the procedures available in preparation for trial . . . actually try the case on the merits . . . without the necessity of making the choice, upon the overruling of the jurisdictional motion, of withdrawing from the action and suffering a default judgment or waiving the jurisdictional question. ... A defendant may perform these acts and thus enter and probe into the merits of the case without the necessity of making the time-honored ‘special appearance’ or reserving the jurisdictional point at each stage of the procedure.”

      . Defendant offered to testify that he was an agent and official of the State of Missouri, acting within the course and scope of his authority, and plaintiffs preserving their objection as to relevance, stipulated that defendant would so testify, without admitting to the truth of that testimony.

      . The motion was not determined as one to dismiss for failure to state a cause of action under Rule 55.33 since the court received and considered extraneous proof in making its ruling.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael James SIMMONS, Defendant-Appellant.
    No. 35559.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 16, 1975.
    William J. Shaw, Public Defender, Mary E. Fiser, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Frank J. Kaveney, Richard B. Scherrer, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant appeals from a conviction of Burglary Second Degree, § 560.045 RSMo 1969, and sentence of five years imprisonment.

On September 27,1972, Mr. Terry Wayne Doss and his family left their home in Berkeley, St. Louis County, at about six o’clock in the evening. Before leaving, Mrs. Doss looked into the room of her eight year old son Bryan and saw the drapes were drawn and windows closed. Bryan’s room faced on the fenced back yard in which the family dog was kept.

When the family returned at about nine-thirty or ten o’clock p. m., Michele, the fourteen year old daughter, observed her wallet lying open on the floor of Bryan’s room. Later it was determined that approximately one dollar in change was missing. She remembered the wallet had been on the dresser in her room earlier that evening. Her parents immediately called the police. When the police arrived, Mr. and Mrs. Doss entered Bryan’s room and discovered a pane of glass in the left window near the lock had been broken. A curtain rod and curtain had been pulled down, broken glass was scattered in the room, some of which, together with a large footprint, was discovered on the bed. The back yard gate was open and the dog missing. Mr. and Mrs. Doss and their fourteen year old daughter Michele testified they did not know defendant and had never given him permission to enter their home. A clear fingerprint was found on the inside window sill which two police fingerprint experts testified was identical to that of defendant. There were other smudged prints on the sill, none of which were clearly identifiable. The defense presented no evidence.

On appeal defendant makes two contentions of error: (1) the court improperly instructed the jury as to the burden of proof, and (2) the State failed to make a submissible case.

We are asked to find error in Instruction No. 2 which is in pertinent part as follows:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.” (emphasis ours)

It is the emphasized phrase which defendant complains is prejudicially erroneous. He argues that this “definition” of reasonable doubt amounts to a comment on the evidence and lessens the burden of proof imposed on the prosecution quoting at length from the comments on reasonable doubt found in MAI-CR Comments. Defendant urges that the formulation for “explaining” or “defining” reasonable doubt which has been in use in this State for over a century, see State v. Nueslein, 25 Mo. 111, 124 (1857), adds nothing of value to the phrase it purports to clarify. See MAI-CR Comments, Reasonable Doubt. The case at bar was tried on May 16, 1973. MAI-CR became effective and those instructions promulgated under the rule are to be used following January 1, 1974. Though the questioned instruction is not included in MAI-CR, it was an approved statement of law at the time of trial. State v. Scott, 491 S.W.2d 514, 520[11] (Mo. banc 1973); State v. Taylor, 506 S.W.2d 94, 96[4] (Mo.App.1974); State v. Aikens, 507 S.W.2d 386, 389[6] (Mo.1974); State v. Parker, 509 S.W.2d 67, 72[7] (Mo.1974). Point I is ruled against defendant.

Defendant next contends the evidence was insufficient to make a submissi-ble case. This point, as developed in the argument section of defendant’s brief, relates only to the sufficiency of the fingerprint evidence to show identity; accordingly, only that issue will be considered. Bopp v. Spainhower, 519 S.W.2d 281, 286 (Mo. banc 1975). We review the pertinent evidence in the light most favorable to the State, considering as true all evidence (whether circumstantial or direct) and reasonable inferences favorable to the State. We must disregard all unfavorable evidence and inferences not supportive of the verdict and judgment of the court. State v. Brunson, 516 S.W.2d 799, 801[2] (Mo.App.1974); State v. Chase, 444 S.W.2d 398, 401[1] (Mo. banc 1969). Detective Carty, who had extensive training in detection and comparison of fingerprints, went to the Doss home on the night of the burglary and dusted the broken window and sill for prints. He found several smudges and one clear latent print on the inside window sill. It was he who personally took the defendant’s fingerprints and testified there were more than thirteen points of identity or comparison between the two. In his opinion the fingerprints were identical. A large photograph of both prints with similar points mapped was admitted in evidence and explained to the jury.

Robert Young, a fingerprint expert with the St. Louis County Police Department, also testified that the print taken from the sill and that of defendant were identical. As previously mentioned, each member of the Doss family that testified said they did not know defendant and had never given him permission to enter their home.

Where the evidence of defendant’s agency in connection with the crime charged is entirely circumstantial, the evidence “must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconciliable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.” State v. Allen, 420 S.W.2d 330, 333[1] (Mo.1967); State v. Brunson, 516 S.W.2d 799, 803[6] (Mo.App.1974). “Ordinarily evidence of a single, isolated fact, however incriminating, is not sufficient to support a conviction.” State v. Allen, supra, 420 S.W.2d at 333[2]. Notwithstanding this general principle, Missouri courts have consistently held that proof of fingerprints found at the scene of a crime “under such circumstances that they could only have been impressed at the time the crime was committed, correspond to those of the accused, may be sufficient proof of identity to sustain a conviction.” State v. Allen, supra at 333[3], In State v. Lane, 497 S.W.2d 207, 209-210[3] (Mo.App.1973), the prints of the left forefinger and thumb of the defendant on a piece of glass removed at the time of the burglary was held to be sufficient to sustain a conviction of Second Degree Burglary. In State v. Schleicher, 442 S.W.2d 19, 21[3] (Mo.1969), the victims locked and left their home at two p. m., returning about six hours later to discover the burglary. Two fingerprints lifted from a plastic jewelry tray in the bedroom of a burglarized home were held sufficient to make a submissible case. In State v. Gray, 504 S.W.2d 825, 826[2] (Mo.App.1974), fingerprints found on the broken windows and door of a church coupled with testimony that the defendant was not a member of the congregation and had no reason to have been in the burglarized part of the building, were held sufficient to support the guilty verdict. There, as here, the State presented evidence of “forcible exterior and interior breakage.”

Where there is positive testimony of two fingerprint experts that the print lifted from the scene of the crime was identical to defendant’s, and the evidence shows the burglary occurred within a clearly defined three and one-half to four hour period, and the presence of defendant’s fingerprint on the window sill of the broken window is unexplained, we cannot say that the fact that there was only one print instead of two made the evidence insufficient to support a verdict of guilty.

Judgment affirmed.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommie Lee HAYNES, Defendant-Appellant.
    No. 36302.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 16, 1975.

      Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforty, Atty. Gen., Preston Dean, Paul Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant was charged by amended information with Burglary Second Degree, § 560.070 RSMo 1969, Y.A.M.S., and one prior felony conviction. Following the jury’s guilty verdict, he was sentenced by the court to six years imprisonment, § 556.-280 RSMo 1969, V.A.M.S., and now appeals. We affirm.

As sufficiency of the evidence is not challenged, our statement of facts will be brief. In the early morning of October 22, 1973, Joseph Ellington, a taxi driver with the Laclede Cab Company, driving east on Maryland Avenue, noticed broken glass on the sidewalk by “Saks Fifth Avenue.” As he passed the store, he looked in and saw defendant with another man reaching into a display counter. Apparently seeing Mr. Ellington, they promptly left the store going west on Maryland. The defendant was carrying a paper bag. Ellington made a u-turn and followed them, turning north on Kingshighway. He flagged down Officer Kwasky of the St. Louis Police Department who arrested the defendant and Peter Cohen. Kwasky advised defendant of his rights and returned him to the scene of the burglary. Defendant, in the presence of Officer Kwasky, the manager of Saks, and two other police officers admitted having broken into the store to get money. The paper bag which defendant carried when arrested contained Saks’ merchandise valued at approximately $2,000. At trial, defendant denied having committed the burglary, making the confession, or possessing the paper bag.

Defendant first contends the court erred denying his motion for a mistrial after Officer Philip Kwasky testified to defendant’s statement that he had “just gotten out of the pen.” A reading of the transcript reveals that the answer was an unsought response to a question designed to elicit testimony as to defendant’s burglary confession. Defendant asserts this was prejudicial evidence of other crimes. We note, however, defendant made no objection to the testimony when offered. The answer was not pursued or emphasized by the prosecution. When the next witness Robert Hutson began to testify on the same subject, the court called counsel to the bench and cautioned the prosecutor, out of the jury’s hearing, to guard against any repetition of the statement else he would declare a mistrial.

Only after a third witness testified to the defendant’s confession did defense counsel belatedly object and request a mistrial. The request was overruled as untimely. “A claim of prejudicial error concerning the admission of testimony to which no objection was made at the earliest opportunity after grounds for the objection become apparent cannot be considered on appeal because it is not properly preserved for review.” State v. McClure, 504 S.W.2d 664, 668[6] (Mo.App.1974); State v. Simmons, 500 S.W.2d 325, 328[2-6] (Mo.App.1973); State v. Jackson, 500 S.W.2d 306, 314[15] (Mo.App.1973). Since appellant made no timely objection to the testimony, nothing has been preserved for review. We find nothing in the evidence or the manner in which it was elicited and used which constitutes plain error resulting in manifest injustice or miscarriage of justice. Rule 27.-20(c), V.A.M.R.

Defendant next asserts four errors in connection with the prosecution’s closing argument, which we shall designate his points two through five: (2) the prosecutor misstated the evidence several times; (3) the prosecutor used the argument, “If ever I heard a better case made of burglary second . . . ”; (4) the prosecutor told the jury they were not to consider punishment, that the court would do that; and (5) the above errors cumulatively prejudiced the defendant so as to require reversal even if they do not individually. We consider these contentions relative to closing argument in the order raised.

Point (2) is not preserved for appeal because appellant failed to include the alleged errors in the motion for a new trial. Rule 27.20(a). State v. Peterson, 518 S.W.2d 1, 3[2] (Mo.1974); State v. Pauley, 515 S.W.2d 824, 826[8] (Mo.App.1974). Our examination of the record as to this contention discloses no plain error. Rule 27.20(c).

Defendant next contends the court erred in refusing to grant a mistrial when the prosecutor stated, “As I said, ladies and gentlemen, all we can produce is testimony and evidence, and I believe that the State has in an abundance an overwhelming amount. If ever I heard a better ease made of burglary second — ” Defendant suggests the last partially completed sentence of the statement violates the “well-settled rule” that a prosecutor may not argue his personal belief that the defendant is guilty, citing State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881[17] (1931). However, the complete and correctly stated rule is that the prosecutor cannot “express to the jury in argument his belief of the defendant’s guilt in such a way that it implies knowledge on his part of facts not in evidence pointing to such guilt . But it is equally well settled that a statement by the prosecuting attorney in argument indicating his opinion that the accused is guilty, where it is apparent that such opinion is based on the evidence in the case, is permissible . . State v. Chester, 445 S.W.2d 393, 399[8, 9] (Mo.App.1969); State v. Rentschler, 444 S.W.2d 453, 456-7[8] (Mo.1969); State v. Jackson, 499 S.W.2d 467, 471[3] (Mo.1973). The transcript reveals the alleged prejudicial remark followed a review of the evidence and was in the nature of summing up. This seems a permissible argument for the prosecutor to make. In any event the defendant’s objection to the argument was sustained and the jury instructed to disregard the prosecutor’s statement. Under the circumstances, denial of a mistrial was clearly within the sound discretion of the trial court; there was no error. State v. Taylor, 508 S.W.2d 506, 514[16, 17] (Mo.App.1974); State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (banc 1956) cert. den. 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed. 167 (1956).

Defendant as Point (4) argues it was error for the prosecutor to tell the jury it was not to consider punishment as that issue was for the judge. In his brief, defendant fails to state what actions or rulings by the trial court are to be reviewed and thus does not comply with Rule 84.-04(d), V.A.M.R. While it is erroneous to inform the jury that the case is being tried under the “Habitual Offender Act,” State v. Martin, 506 S.W.2d 473, 474[4] (Mo.App.1974), it seems clear from the cases that the offending act is mentioning the highly prejudicial name of the statute. Telling the jury that the court will sentence the defendant if found guilty and even that the prosecutor will ask for the maximum, is not reversible error where the prejudicial tag “habitual offender” is not attached to the defendant. See also State v. Sims, 395 S.W.2d 445, 452[18] (Mo.1965).

Finally defendant asserts as Point (5) that cumulatively these errors denied the defendant a fair trial. Again defendant’s point fails to state what rulings or actions of the trial court are to be reviewed, 84.04(d), V.A.M.R. As we found no significant individual error, we also find no cumulative error sufficient to justify reversal. The trial court has wide discretion in controlling the arguments of counsel, State v. Hill, 328 S.W.2d 656, 660[7] (Mo.1959), and will be reversed only for abuse of that discretion. State v. Taylor, 508 S.W.2d 506, 514[15] (Mo.App.1974). The record in the case at bar reveals that the trial court conscientiously acted to control the argument of the prosecutor. The only relief asked for, which was not granted, was a mistrial. We find no evidence of abuse of discretion in this case.

Affirmed.

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


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricky JONES, Defendant-Appellant.
    No. 36068.
    Missouri Court of Appeals, St. Louis District.
    Sept. 16, 1975.

      Charles D. Kitchin, Public Defender, Frederick R. Buckles, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, John D. Ashcroft, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Defendant was convicted of robbery first degree by means of a dangerous and deadly weapon, §§ 560.120 and 560.135 RSMo 1969, and was sentenced under the Second Offender Act, § 556.280 RSMo 1969, to 25 years in the custody of the Missouri Department of Corrections. Defendant on appeal challenges the ruling of the trial court denying his motion to suppress the lineup identification for the reason that his request for counsel was not honored and because the lineup was conducted in an unduly suggestive manner. He does not challenge the sufficiency of the evidence to support the jury verdict.

Viewing the evidence in the light most favorable to the State and disregarding evidence and the inferences which might be drawn therefrom contrary to the jury ver-diet, State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), the jury, from the evidence adduced at trial, could find that on July 18, 1973, the defendant and three other black men robbed the Speckart Drug Store situated at 5000 N. Broadway in the City of St. Louis, obtaining $1,500.00 in cash and some personal property. Defendant was identified at trial as one of the men who held a sawed-off shot gun at the head of the pharmacist threatening to blow off the pharmacist’s head while two other men took money from the cash register and a metal locker in the drug store. Personal property, such as wallets and watches, were taken from several employees of the drug store who were present at the time the robbery took place. The fourth participant in the crime acted as a look-out. When the men had obtained the money and property they fled on foot. Defendant’s defense was alibi. His arrest was effected three days following the robbery when he, his brother and two others were seen entering an automobile which fled from the location at which it had been parked, and, after a chase during which a gun was thrown from the car, the four men were placed under arrest. Approximately one to one and a half hours later the four suspects were placed in a lineup at the Fifth District Police Station where defendant was identified as one of those who had participated in the robbery of Speckart’s Drug Store on July 18, 1973. Prior to the lineup this defendant requested the presence of a lawyer at the lineup but his request was denied.

Defendant’s first Point Relied On was not raised in his motion for new trial and therefore was not preserved for review in this Court, Rule 27.20. However, the law of this State is that the presence of counsel is not required at a pre-indictment lineup, State v. Hamilton, 490 S.W.2d 96, 97[1] (Mo.1973), and the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) held that a police station “show-up” which took place after the petitioner’s arrest but before he had been indicted or otherwise formally charged was not a critical stage at which the petitioner had a constitutional right to counsel, and that the victim’s testimony at trial describing his “show-up” identification of the defendant who was unrepresented by counsel at the “show-up” was admissible in evidence. The “show-up” in this case took place prior to the filing of any charges against the defendant and was not therefore a critical stage of the criminal proceedings at which the defendant was entitled to counsel. We rule this Point against the defendant.

Defendant’s final Point is that the trial court erred in denying his motion to suppress the lineup identification on the grounds that it was conducted in a manner that was unduly suggestive. The thrust of defendant’s argument is that the four men placed in the lineup were arrested together and, within an hour and a half, placed in the lineup together; that their ages, their race, and the height of three of the four, were “similar.” He complains that no attempt was made to find others of “similar physical characteristics.”

A conviction based on an identification will be set aside only when the identification has been tainted by a confrontation that is so unnecessarily suggestive and conducive to mistaken identification that the defendant’s motion to suppress testimony deriving from suggestive identification procedures should have been granted. The factors to be considered in evaluating the likelihood of misidentification include the opportunity for the witnesses to view the criminal at the time of the crime, the certainty of the witnesses at the confrontation, and the length of time between the time of the commission of the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), State v. Jordan, 506 S.W.2d 74, 81[11] (Mo.App.1974). Proof of a source of identification independent of the confrontation itself is enough to overcome a claim of unnecessary suggestiveness. State v. Jackson, 477 S.W.2d 47, 51[4] (Mo.1972).

In this case all three witnesses had ample opportunity to view the culprits during the robbery which lasted from ten to fifteen minutes during the middle of the day by robbers who wore no masks. The lineup was staged only three days after the robbery and was comprised of four men: the defendant who was 6' 3" tall and weighed 165 pounds, Dexter Davis, who was 6' 1" and weighed 145 pounds, James Jones, who was 6' tall and weighed 210 pounds, and Ernest Murphy, who was 5' 4" tall and weighed 115 pounds. There was nothing unusual about the attire of the men in the lineup; the defendant, Davis and Murphy wore T-shirts. One of the four men involved in the robbery was described to the police as being shorter than the others. Murphy, the only subject in the lineup who was considerably shorter than the others, was not identified as one of the robbers. We conclude, that in view of the totality of the circumstances, the trial court did not err in denying defendant’s motion to suppress the identification evidence in this case.

Examination of the Information, verdict, judgment and sentence pursuant to the requirements of Rule 28.02 reveal no insuffi-ciencies.

The judgment of conviction is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . At this lineup three of the four men were identified as participants in the Speckart robbery, this defendant by three of the victims. His brother, James H. Jones, was also identified as one of the robbers, and was subsequently tried and convicted for this crime. On appeal James H. Jones’ conviction was upheld. State v. Jones, 524 S.W.2d 186 (Mo.App.1975).


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    Charles HAMPTON, Plaintiff-Respondent, v. METROPOLITAN INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 36320.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 16, 1975.
    Michael A. Fisher, St. Louis, for defendant-appellant.
    Stephen H. Gilmore, Clayton, for plaintiff-respondent.
   DOWD, Judge.

This is an appeal by defendant from a judgment in favor of plaintiff for $1,376.00 for accident benefits allegedly due under a group insurance policy issued by the defendant. The plaintiff did not file a brief on appeal.

The Circuit Court considered the following stipulated facts, plus several exhibits. The plaintiff, a member of the United Auto Workers, was employed by General Motors at its St. Louis Chevrolet plant on November 13, 1958. A strike was in force at the St. Louis plant from April 10,1969, through June 9, 1969, and plaintiff’s last day of work before the strike was April 9, 1969.

Plaintiff was injured on June 7, 1969, while installing an air conditioner at his home, and was disabled from June 7, 1969, through October 24, 1969. Thus plaintiff’s injury occurred while he was still on strike.

A group insurance policy was issued by defendant to General Motors. This policy provided for sickness and accident benefits for full-time hourly rate employees, but no premiums for sickness and accident benefits under the insurance policy were paid during the period of the strike.

Plaintiff filed a claim for accident bene- ■ fits under the group policy because of his disablement from June 7,1969, through October 24, 1969. Defendant refused to pay because it said plaintiff was not covered by the policy at the time his disability commenced.

Defendant’s first contention is that plaintiff was not insured for sickness and accident benefits at the time of his injury because no premiums were paid during the strike. We look first to the terms of the group policy itself to determine what effect the nonpayment of premiums had on the sickness and accident insurance coverage.

Section 17 of the policy provides that the employer is responsible for the premium payments, which are due on the first day of each calendar month. If requested by General Motors and approved by defendant, the monthly premium payments could be changed so as to be payable annually, semiannually, or quarterly. But since the record reflects no such request by General Motors, we must assume that General Motors continued its monthly premium payments, and that the last premium payment before the strike was due and paid on April 1, 1969.

The policy provided that the payment of any premium would not maintain the insurance in force beyond the day immediately preceding the next due date. In our case the premium due on April 1, 1969, would cover the employees until April 30, 1969.

But the policy granted a grace period of 31 days to the employer for payment of any premium due, and during this grace period the policy would continue in effect. If the employer failed to pay any premium within the grace period, the policy would be discontinued on the last day of the grace period.

In our case no premiums were paid from April 10, 1969, through June 9, 1969, because of the strike. The premium payment due on April 1, 1969, covered plaintiff until April 30,1969. Since the monthly premium due on May 1, 1969, was not paid, the 31-day grace period covered plaintiff from May 1, 1969, through May 31, 1969. Since the premiums due on May 1,1969, were not paid by May 31, 1969, sickness and accident insurance coverage lapsed after May 31, 1969, which was seven days before plaintiff was injured.

An insurance policy is a contract; and if the premiums are not paid the policy lapses and there is no coverage. Survivors Benefit Insurance Co. v. Farmer, 514 S.W.2d 565, 572 (Mo.1974); Johnson v. Travelers Insurance Co., 239 Mo.App. 599, 194 S.W.2d 938, 941 (1946).

The nonpayment of premiums by an employer under a group policy that covers his employees has been an issue in many cases. Sometimes the employees contribute to the insurance premiums, usually by payroll deductions.

It is well established that the employer’s failure to pay premiums for an employee insured under a noncontributing group policy terminates his coverage under the policy. Brown v. Equitable Life Assurance Society of the United States, 143 S.W.2d 343 (Mo.App.1940). See the cases cited in Annotation, “Nonpayment of premiums as termination of individual coverage under group policy,” 68 A.L.R.2d 215-239 (1959). Also see William P. Meyer, Life and Health Insurance Law, §§ 9:14 and 9:15 (Lawyers Co-op 1972).

Where the employee insured under a contributory group policy fails to make the required premium contributions and as a consequence the employer discontinues the payment of premiums to the insurer, such discontinuance terminates the coverage of the employee under the policy. Williams v. Sun Life Assurance Company of Canada, 235 Mo.App. 741, 148 S.W.2d 112 (1940); Williams v. Aetna Life Insurance Company of Hartford, Conn., 154 S.W.2d 426 (Mo.App.1941); Longley v. Prudential Insurance Company of America, 161 S.W.2d 27 (Mo.App.1942). See the cases cited in the Annotation, supra.

We conclude the Circuit Court erred when it found for plaintiff, because the sickness and accident insurance coverage for the plaintiff had lapsed no later than seven days before plaintiff’s injury, due to General Motor’s nonpayment of premiums during the strike.

Having found for defendant on the issue of premium payments, we find it unnecessary to discuss defendant’s second contention.

The judgment is reversed and remanded with instructions to enter judgment for the defendant.

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

      . We assume that the group policy introduced in evidence is a complete and current record of the group policy and its amendments then in force.

      . It is impossible to determine whether the group policy in our case was contributory. Section 4 of the policy provides that any employee represented under a collective bargaining agreement shall not be required to make any contribution to the cost of his insurance, except as specified in the bargaining agreement. The stipulated facts relate that a collective bargaining agreement was in effect at the time of the strike, but this agreement, though an exhibit in the Circuit Court, has not been furnished to us on appeal. But whether or not the group policy plan was contributory is unimportant, as the subsequent discussion shows.