author: TURNAGE, Judge. WASSERSTROM, Judge, PRITCHARD, Judge, SWOFFORD, Chief Judge,

text:
    STATE ex rel. Paul W. COLLINS, Director, Missouri Division of Highway Safety, and Dr. Byron I. Axtell, D.O., Coroner, Mercer County, Missouri, Relators, v. The Honorable J. Morgan DONELSON, Judge of the Circuit Court of Mercer County, Missouri, Respondent.
    No. 29237.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      John D. Ashcroft, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for relators.
    Slagle & Bernard, Ben R. Swank, Jr., Kansas City, for amici curiae.
    Phil Hauck, Erwin L. Milne, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.

TURNAGE, Judge.

This original proceeding in prohibition was brought by the Director of the Missouri Division of Highway Safety and the Coroner of Mercer County. The object of the writ is to restrain the respondent judge from enforcing his order compelling the re-lators to comply with a subpoena duces tecum to produce a report made by the Coroner to the Director as required by § 58.445, RSMo 1977 Supp.

This court issued its preliminary rule in prohibition. Relators contend the rule should be made permanent because § 58.-449, RSMo 1977 Supp. prohibits the results of the test made by the Coroner from being used except for statistical purposes. Preliminary rule made permanent.

The underlying case, which brought about the issuance of a subpoena duces tecum, involves a claim against Old American Insurance Company on a policy of insurance issued on the life of Robert L. Girdner. Girdner died within four hours after being involved in an automobile accident and the Coroner of Mercer County performed the blood test required by § 58.-445. Results of this test, along with the required report, were sent to the Director of the Missouri Division of Highway Safety.

Both the plaintiff and the defendant in the underlying case sought the results of the test made on Girdner and to that end issued a subpoena duces tecum to the Director and Coroner. When these two officials appeared for their deposition, they both stated they had in their possession a copy of the report together with the results of the test made by the Coroner on Girdner. However, both refused to divulge the results of the test because of the provision of § 58.449.

A motion was filed with the respondent judge to compel compliance with the subpoena duces tecum and the judge ordered both officials to comply with the subpoena and to produce the results of the test and the report made to the Director. The filing of this proceeding in prohibition followed.

Section 58.445 provides:

1. If any driver or pedestrian within his jurisdiction dies within four hours of and as a result of an accident involving a motor vehicle, the coroner shall report the death and circumstances of the accident to the Missouri division of highway safety in writing. The report shall be made within five days of the conclusion of the tests required in sub-section 2.
2. The coroner shall make or cause to be made such tests as are necessary to determine the presence and percentage concentration of alcohol, and drugs if feasible, in the blood of the driver or pedestrian. The results of these tests shall be included in the coroner’s report to the division.

Section 58.449 provides:

The contents of the report and results of any test made pursuant to the requirements or authorizations of sections 58.445 to 58.449 shall be used only for statistical purposes which do not reveal the identity of the deceased.

Prohibition is the proper remedy when a trial court has ordered discovery and the order exceeds the jurisdiction of the court State ex rel. Thomasville Wood Products, Inc. v. Buford, 512 S.W.2d 220, 221[1-5] (Mo.App.1974). Thus, if the order made by the respondent judge compelling the officials here involved to produce the results of the test made pursuant to § 58.445 is in violation of § 58.449, then the preliminary rule in prohibition should be made permanent because such would be in excess of his jurisdiction.

The relators contend § 58.449 is clear and unambiguous and by its plain terms prevents such officials from disclosing the result of the test to anyone. Relators point to the language “shall be used only for statistical purposes” and argue that such phrase manifests a clear legislative intent the test result shall not be used in any other manner.

The respondent and Amici Automobile Club of Missouri and General American Life Insurance Company contend the statute, if construed according to relators’ view, would thwart discovery and prevent vital relevant evidence from being made available in the underlying suit. No question is raised concerning the power of the legislature to restrict the use of the test results.

A well settled rule of statutory construction states: “When the language of a statute is unambiguous and conveys a plain and definite meaning, the courts have no business to look- for or to impose another meaning. DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724, 727[1] (Mo.App.1973). If a statute is unambiguous, a court should regard it as meaning what it says since the legislature is presumed to have intended exactly what it states directly. DePoortere v. Commercial Credit Corporation, supra at 727[2]. Pedroli v. Missouri Pacific Railroad, 524 S.W.2d 882, 884[1, 2] (Mo.App.1975).

It is readily apparent the language of the statute involved here is written in plain and simple English. The Coroner is required to make such test as necessary to determine the presence and percentage concentration of alcohol, and drugs, if feasible, in the blood of a driver or pedestrian who dies within four hours after an accident involving a motor vehicle. The Coroner is directed to make a report of the death and circumstances of the accident to the Division of Highway Safety in writing. The contents of the report and results of any test shall be used only for statistical purposes which do not reveal the identity of the deceased.

The provision that the contents of the report and the results of any test shall be used only for statistical purposes is a broad and complete restriction as to the use which may be made of the report and test results. The word “only” is defined as meaning “alone in its class, sole, single, exclusive, solely, this and no other, nothing else or more.” Hiner v. Hugh Breeding, Inc., 355 P.2d 549, 551[2] (Okl.1960). See also 67 C.J.S. pp. 498, 499.

By use of the word “only” the legislature has limited the use of the report and test results for statistical purposes solely, exclusively and for nothing else or more. This is the plain meaning of the statute when the word “only” is used.

Respondent and Amici contend the restrictive phrase, “shall be used only for statistical purposes,” applies only to the use which the Director shall make of the information. However, the statute does not limit any person or agency. The limitation is directed to the use which may be made of the report and test results. The limitation on this use solely for statistical purposes results from the plain language employed.

The conclusion necessarily follows that this statute, written in plain English, restricts the use of the report and test results to statistical purposes. It inevitably follows that such report and test results cannot be made available to litigants or anyone else.

Respondent further contends that restricting the use of the report and test results to statistical purposes creates a conflict with §§ 109.180 and 109.190, RSMo 1969. Those sections provide that public records shall be open for inspection and copying at all reasonable times. However, § 109.180 restricts the application of that section by providing “except as otherwise provided by law.” Likewise, § 109.190 provides “in all cases where the public or any person interested has a right to inspect.” The legislature has provided under § 58.449 the report and test results are not public records and the public does not have a right to inspect such records. Thus, there is no conflict with the sections providing for the inspection and copying of public records.

Respondent and Amici further contend that a denial of their right to the report and test results will make § 58.449 unconstitutional on the grounds it denies to them equal protection of the laws in violation of both the Missouri and United States Constitutions. This argument is based on a contention § 58.445 creates an unlawful classification between tests performed on persons who die more than four hours following an accident and tests performed on persons who die within four hours of an accident. No reason is advanced to demonstrate why this alleged arbitrary classification is discriminatory, however, the State suggests the effects of alcohol may be dissipated in the body over a period of time and a four-hour limit is reasonable. Amici, in their brief, agree with this suggestion.

The rule in this situation is stated in State ex rel. Toedebusch v. Public Service Com’n, 520 S.W.2d 38, 46[6] (Mo. banc 1975) as follows: “The only requirements the equal protection clause of the Fourteenth Amendment to the United States Constitution and Mo.Const. Art. III, § 40(4), (28), (30), prescribe is that such classification be based upon a reasonable ground (not arbitrary), and that the law operate equally upon all in the same class.”

Equal treatment is afforded by the sections under consideration. The report and tests results are not available to anyone when a death occurs within four hours of the accident. A death occurring after four hours does not require a report or a test to be made, however, if such were made, it would not be restricted in its use. The law operates equally upon everyone. No unlawful classification or discrimination is discernible.

Amici further suggest that the statute unconstitutionally grants coroners immunity from testifying. The statute does not grant any immunity to coroners from testifying, but only restricts the use and disclosure of the report and the test results made by the coroner. As to any other information the statute in question does not prevent the coroner from testifying or grant to him any immunity.

The preliminary rule is made permanent.

SHANGLER, DIXON and SOMER-VILLE, JJ., concur.

WASSERSTROM, J., concurs in separate concurring opinion.

PRITCHARD, C. J., dissents in separate dissenting opinion.

SWOFFORD, J., dissents in separate dissenting opinion.

WASSERSTROM, Judge,

concurring.

I fully concur in the majority opinion and write this addendum only because the carefully considered dissent by Judge Pritchard deserves a response.

The dissent says the dispositive question is whether the restriction on the use of the blood test may be waived by plaintiff Thomas E. Girdner, and it observes that “this matter is not touched upon in the majority opinion.” That omission in the majority opinion is explained by the fact that respondent made no such argument. In fact, at oral argument attorney for respondents expressly disclaimed any reliance upon this theory of waiver. Nonetheless, the dissent quite properly may raise the issue, because the respondent trial judge should be sustained if his action can be justified on any theory.

Turning to the merits of the argument advanced, the dissent asserts that “[i]t is for his [Thomas E. Girdner] protection, and others similarly situated, that the Legislature must be held to have intended to protect . ” That certainly may have been the underlying intention of the Legislature, but that is far from necessarily so. Other and quite different motivation may have led to the restriction in question.

As set forth in footnote 1 of the majority opinion, a number of other states have similar statutes, some of which disclose an underlying philosophy diverse and even contradictory to that of other states. Thus, the Nevada statute makes the findings open to the world; Colorado makes the findings available “to any interested party” and that seems also the philosophy of the North Dakota statute; but Illinois, Minnesota, New York, Idaho and New Mexico seem to go on an opposite policy of forbidding use of the findings by any party in any litigation, criminal or civil. In light of this diversity of policies, no one can say with entire confidence just what policy was intended by the Missouri Legislature. That choice would necessarily be reduced to a matter of speculation.

Analysis of the statutes of other states also yields another point of interest. That study reveals a philosophy by at least some legislatures to treat all parties in interest with an even hand, either giving access to the test results to all parties or forbidding access to any party. This approach has an attractive feature of fairness, as opposed to according a one-sided advantage to the family of the deceased. If the Missouri statute were to be interpreted as having the opposite intention of granting a privilege solely available to the family of the deceased, then the family would waive the privilege if the test results were favorable to them but would stand on the privilege if the results were otherwise. An interpretation permitting such a result does not commend itself for adoption.

The safest course and indeed the only course open to this court is to give strict effect to the language of the statute which says that the results of the test “shall be used only for statistical purposes.”

PRITCHARD, Judge,

dissenting.

This proceeding was brought by relators to prohibit respondent from enforcing an order compelling them to comply with a subpoena duces tecum to produce a report made by respondent coroner to respondent director of the Division of Highway Safety, which was done in compliance with § 58.-445, RSMo (Laws 1973, p. 149, §§ 1, 2). This statute requires the coroner to make or cause to be made blood tests of a driver or pedestrian, who dies within 4 hours of and as a result of an accident involving a motor vehicle, to determine the presence and percentage concentration of alcohol, and drugs, if feasible, and include them in his report to the division of Highway Safety. § 58.449, RSMo (Laws 1973, p. 149, § 4), which rela-tors contend gives them an absolute right to refuse to obey the subpoena duces tecum, is: “The contents of the report and results of any test made pursuant to the requirements or authorizations of sections 58.445 to 58.449 shall be used only for statistical purposes which do not reveal the identity of the deceased.” (Italics added.)

The underlying action, as shown by exhibits attached to the petition for writ of prohibition, was brought by Thomas E. Girdner, as beneficiary under two policies covering accidental death, a total of $8,400.00, of the insured, Robert L. Girdner, deceased, who was plaintiff’s brother. It was alleged in Thomas’ petition that Robert L. Girdner died January 25, 1975, “from injuries sustained in an accident.” Thomas alleged that he gave defendant, Old American Insurance Company, and its manager of its Health Division, D. F. Butler, due notice of the accident and proof thereof, but defendants refused demand for payment. No specific reason was given for the refusal of the demand for payment. Old American’s refusal, contained in its letter, was merely: “Information contained in our file indicates that Mr. Girdner’s accident was due directly to a condition excluded by the policies.” Copies of the policies were attached to the petition in the underlying action, certified copies of all the same being before this court as exhibits to the suggestions in opposition to the petition for writ of prohibition. One policy contains the clause, “The Company shall not be liable for any loss sustained or contracted in consequence of the Covered Person’s being intoxicated or under the influence of any narcotic unless resulting from the advice of a physician.” The other policy contains the clause, “This policy does not cover any loss caused, directly or indirectly, wholly or partly, by * * * (3) intoxication of the insured, or * *.”

There was a stipulation of the parties (plaintiff and defendants) in the underlying action that Robert L. Girdner was pronounced dead at approximately 10:10 p. m., on January 25, 1975, as a result of having been in an automobile accident which occurred at approximately 9:40 p. m., on the same date, he being then the operator of a motor vehicle; that the parties requested of the Director of Highway Safety the contents of the records required and provided by § 58.445, pertaining to the said Robert L. Girdner, but were denied the request; and that the parties caused the director to be subpoenaed to produce the records, but he refused under oath to divulge the contents of the records, or to make them available to the parties, or to allow them to be inspected or reproduced.

The return to the writ of prohibition herein pleads, “3. None of the parties to the lawsuit in the Circuit Court of Mercer County, Missouri, being Thomas E. Girdner, Plaintiff, and Old American Insurance Company, and D. F. Butler, Defendants, has objected to or in any way sought to block discovery of the information which has given rise to this action, in fact, all of the parties have joined the attempts to obtain and discover the information by stipulation, direct questioning at deposition sessions of Relators and informal request.” The traverse to the return does not deny this paragraph 3, so it and the other matters referred to above must be taken as true.

The dispositive question here is whether the provisions of § 58.449, that results of blood tests shall be used only for statistical purposes which do not reveal the identity of the deceased may be waived by a family member in interest such as plaintiff, brother of deceased, Thomas E. Girdner. This matter is not touched upon in the majority opinion.

Respondent does not precisely set forth in his points that the provisions of § 58.449 were waived by Thomas E. Girdner. It is said merely that the report is relevant to the subject matter (obviously the cause of death of decedent) and that it is not privileged. In the first instance, any report of blood test results to the Director of Highway Safety would have been privileged to Thomas E. Girdner as a member of the public. He is a member of that class entitled not to have, over his objection, the identity or the blood test results of a deceased disclosed. It is for his protection, and others similarly situated, that the Legislature must be held to have intended to protect for the purpose of saving them the embarrassment of having the fact of a family member having died in an automobile accident as a result of intoxication, yet preserving for preventive legislative measures the value of statistical data. The prohibition against the use of the reports and blood test results for only statistical purposes could not have been for the personal protection or privilege of coroners or the Director of Highway Safety.

Quite apparently here, the pleadings and motions before respondent which caused him to threaten to compel obedience by relators of the subpoena duces tecum were that the plaintiff had expressly waived any objection based upon statutory privilege. It is really in that posture that the application for writ of prohibition came before this court.

The words in § 58.449 “shall be used only for statistical purposes which do not reveal the identity of the deceased” are undoubtedly mandatory upon the Director of Highway Safety and coroners. See the construction of the word “shall”, 82 C.J.S. Statutes § 380, p. 877; and State ex rel. Laffoon v. Youngdahl, 391 S.W.2d 605, 607 (Mo.App.1965). The statute means, simply, that neither the director nor coroners may upon their own volition use blood test reports for anything but statistical purposes which do not reveal the identity of the deceased. Nor can a stranger to the benefit conferred, such as Old American Insurance Company in the underlying case, cause the information to be revealed over the objection of a person for whose benefit the statute was enacted. The statute imposes no restriction upon any protected member of the public in personally and expressly waiving the matter of revelation of the identity of the deceased and the results of any blood test performed upon his body.

The statute here does not declare that its violation shall be a misdemeanor and it contains no penalty for failure to comply with its provisions. “It may be stated as a general rule that legislation enacted to govern civil rights and contracts which does not carry criminal or penal provisions may be waived by those affected by such laws.” 2A Sutherland, Statutory Construction, § 55.08, p. 398. See also 82 C.J.S. Statutes § 376, p. 874. Further rules are of value in determining the underlying issue in this case. “As a general thing, rights granted by statute may be waived unless the statute is intended to protect the general rights of the public rather than private rights. While one cannot waive a public obligation created by statute, he may waive a statutory requirement the purpose of which is to confer a private right or benefit, * * 28 Am.Jur.2d Estoppel and Waiver, § 164, p. 850. And, “Statutory rights may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit they are given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from such statute or other legal or equitable source.” 28 Am.Jur.2d Estoppel and Waiver, § 164, p. 851. See also § 165 following. By permitting Thomas E. Girdner to exercise his right of express waiver, a privilege which he as beneficiary and a member of deceased’s family possesses, no violence is done to the rights of other members of the public who might desire to insist upon the secrecy of blood test reports and the identity of the deceased. There is here no anticipatory waiver as a condition to the issuance of the policies of insurance in the underlying action, but the waiver is presented after the fact of death.

No ease has been found which directly rules that statutes such as § 58.449 may be waived by a person for whose benefit it was enacted. In United States Life Insurance Company v. Mason, 214 Va. 328, 200 S.E.2d 516, 517 (1973), however, it was ruled that there was no waiver merely by the plaintiff maintaining her action for benefits because the burden of proof was upon the insurance company to establish the exclusion of accidental death of the deceased being caused directly or indirectly by intoxication. The court said the Legislature, in enacting a statute similar to Missouri, intended that direct testimony as to results of blood alcohol tests shall no longer be admissible in civil litigation (obviously, as was the fact over the objection made by plaintiff). The court did say, “Assuming without deciding, that a civil litigant has the power to waive the provisions of Code § 19.1-42, we hold that there was no waiver by the beneficiary.”

Footnote 2 at page 4 of the majority opinion is irrelevant. There is no fact in this case that an autopsy was performed or that the result of any autopsy was available. The only fact stipulated was that the blood test report here existed, and its production, by the assent of all the parties, would determine the key issue of the intoxication of deceased, and possibly end the litigation.

I respectfully dissent from the majority opinion for the reasons stated. I would quash the writ of prohibition as having been improvidently issued.

SWOFFORD, Chief Judge,

dissenting.

I concur in the dissenting opinion of Pritchard, J. and would quash the writ of prohibition as having been improvidently issued. I do not find it speculative or even difficult to arrive at the conclusion that the legislative intent of Sections 58.445 to 58.-449, RSMo (Laws 1973) was to collect statistics in highway death accidents in order to promote highway safety for the public generally. It is equally clear to me that as a concomitant of this broad, general and salutary purpose the legislation specifically and clearly limited not only the use of the autopsy findings to “statistical purposes” but also mandated that the identity of the deceased was protected and cannot be revealed.

To my mind, all logic and reason lead irresistibly to the conclusion that this latter provision was intended as a protection to the surviving family or personal representatives of the deceased. The plaintiff in the underlying case falls within such class. This statutory protection or privilege, as any other privilege, can be waived and was specifically and unequivocally waived by the plaintiff, as held in the dissenting opinion, with which I concur.

      . Other states have enacted similar statutes: (1) Illinois, Minnesota and New York specifically provide test results shall not be admissible in evidence in any civil or criminal action. Ill. Stats.Ann. ch. 31, § 10; Minn.Stats.Ann. § 169.-09 (1977 Supp.); N.Y.Consol.Laws ch. 11, County Law § 674, subd. 3[b] (1972). Idaho provides “The results of such tests shall be used exclusively for statistical purposes and the sample shall never be identified with the name of the deceased. Any person releasing or making public such information other than as herein prescribed, shall be guilty of a misdemeanor.” Idaho Code § 49-1016 (1977 Supp.). New Mexico provides the report shall not be subject to judicial process. N.Mex.Stats.Ann. § 15-43-45B (1953). (2) Nev.Rev.Stats. § 484.-394 (1973) makes the findings of examinations a matter of public record. Colo.Rev.Stats. § 42-4-1211 (1973) provides the records of results of the tests shall not be public information, “but shall be disclosed on request to any interested party in any civil or criminal action arising out of the collision.” North Dakota provides the results shall be released upon the issuance of a subpoena duces tecum by a court of competent jurisdiction in any civil or criminal action. N.Dak. Century Code Ann. § 39-20-13 (1975 Supp.). (3) Connecticut, Massachusetts and Pennsylvania statutes neither restrict nor make public the test results. Conn. Rev.Stats. § 14-227c (1977 Supp.); Mass.Rev. Stats, ch. 38, § 6A (1972); Pa.Consol.Stats. Ann. Title 75, § 3749 (1977 Supp.). The precise question here presented has not been decided in any state where the result was not plainly dictated by the statute.

      . Evidence of the blood content of a deceased is available. § 194.115 RSMo 1969, provides an autopsy may be performed on any body upon the consent of a very broad range of persons from the surviving spouse to a friend who assumes the right to control the disposition of the body. Further, § 58.725, RSMo 1975 Supp. grants the medical examiner the right to perform an autopsy when, in his opinion, it is necessary. The circumstances of the death under which the autopsy may be performed by the medical examiner are detailed in § 58.720, RSMo 1977 Supp. and include deaths by accident. § 58.725 requires a detailed description of the findings of the autopsy and the conclusions drawn therefrom to be filed in the office of the medical examiner. No restriction is placed on the use or availability of this report.


source: Caselaw Access Project

author: CROW, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Ray HULSEY, Defendant-Appellant.
    No. 10436.
    Missouri Court of Appeals, Springfield District.
    Oct. 24, 1977.
    Motion for Rehearing or Transfer Denied Nov. 4, 1977.

      Robert G. Duncan, Robert E. Hart, Duncan & Russell, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and KENNEDY, CROW and BACON, Special JJ.
   CROW, Special Judge.

A Jasper County jury found defendant guilty of robbery in the first degree and fixed his punishment at imprisonment for a term of 25 years. §§ 560.120 and 560.135 RSMo 1969. Thereafter, in due course, defendant’s motion for a new trial was overruled, allocution was granted, and judgment and sentence were pronounced in accordance with the verdict. Defendant appeals, relying on two points.

Defendant’s first point is:

“The trial court erred in admitting objectionable evidence presented by the prosecution for which there was no proper foundation, which were irrelevant and immaterial not having been connected nor related to the defendant’s actions at the time of the commission of the alleged crime, all having a cumulative effect possible of improperly influencing a jury thus requiring a reversal of their finding of guilty.”

The State, in its brief, contends this point preserves nothing for review because it fails to comply with Rule 84.04(d), V.A.M.R. We agree.

Points relied on in an appeal must state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rule 84.04(d), V.A.M.R. Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule. Ibid.

Defendant’s first point furnishes no clue as to the nature of the “objectionable” evidence, nor does it indicate why or how the foundation for admissibility was improper. The point does not identify any specific ruling or rulings of the trial court, nor does it state why such ruling or rulings were incorrect.

Points relied on should definitely isolate and formulate the precise issues to be reviewed, and an appellate court should not be relegated to the argument portion of a brief to discover the points upon which review is sought. State v. Murphy, 508 S.W.2d 269 (Mo.App.1974).

We hold defendant’s first point insufficient to .preserve any assignment of error for appellate review.

Defendant’s second point is:

“The trial court erred in not suppressing evidence seized from a taxicab in which defendant was riding and a subsequent incriminating admission by the defendant as both evidentiary items were the product of an illegal arrest made without probable cause.”

This point might also have been vulnerable on the ground of noncompliance with Rule 84.04(d), V.A.M.R., however, the State made no such attack, nor did the State raise any other procedural challenge. Nonetheless, before reaching the merits of defendant’s second point, orderly procedure requires us to: (1) identify the evidence toward which defendant’s second point is directed; (2) examine defendant’s objections at trial to the admission of such evidence; (3)consider the rulings of the trial court with respect to such objections; and (4) determine whether such objections have been preserved for appellate review by inclusion in defendant’s motion for a new trial.

The only “evidence seized from a taxicab in which defendant was riding” was an overcoat.

At trial, the victim testified the coat looked similar to one worn by the robber. [The robber wore a ski mask, therefore, neither the victim nor the other eyewitness identified defendant, or anyone else, as the culprit].

Before trial defendant filed a written motion to suppress the coat for the reason that it was “illegally seized by law enforcement officials.” The motion was overruled by the trial court after an evidentiary hearing.

When the coat was offered in evidence on the second day of trial, defense counsel objected “for the reason Officer Tennis didn’t actually see it removed.” In order to understand this objection, a brief reference to certain evidence is necessary.

Defendant was arrested by Joplin Police Sergeant Larry Tennis on a public street less than an hour after the robbery occurred. The arrest took place after defendant alighted from the right rear door of a taxicab.

The cab was detained by police at the arrest scene, and Sergeant Tennis testified he observed a “Lt. McAfee” open the right rear door of the cab, but “didn’t actually see the coat until Lt. McAfee pulled it out of the cab and held it up.” Sergeant Tennis did not know where the coat was found inside the cab. [Lt. McAfee did not testify].

While the trial court was considering the objection, defense counsel further stated, “I object on the grounds of relevancy, object on the grounds that the officer — that it has not been properly linked with the defendant from the standpoint of, well, other than the fact that it did come out of the car that he was riding in.”

After the court indicated the coat would be admitted in evidence, defense counsel stated, “I still object to it for the fact it is not properly connected to the crime.”

None of these objections raised any issue about whether the coat was “illegally seized by law enforcement officials” as urged by defendant in his pretrial motion. Defense counsel’s objections when the coat was offered, as we understand them, were based on relevancy, and not on any constitutional ground.

The validity of a search and the admissibility in evidence of items seized during the search present issues collateral to the issue of guilt which are to be tried independently. Not only must a defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions. He must also keep the question alive by timely objection. Rule 33.03(a)(5), V.A.M.R.; State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974); State v. Bryson, 506 S.W.2d 358 (Mo.1974). As observed in Yowell, it is entirely possible that after hearing the evidence on the motion to suppress, defendant’s attorney may become convinced that his motion is without merit. By requiring him to renew his constitutional objection when the evidence is offered at trial, the court will be advised that defendant continues to consider the evidence inadmissible. Additionally, if the objection is renewed when the evidence is offered, the judge may desire to reconsider his prior ruling.

We hold that defendant failed to preserve any search and seizure issue for appellate review with respect to the coat, by reason of the failure of defense counsel to make such objection when the coat was offered at trial. State v. Yowell, supra, 513 S.W.2d at 402-403[l, 2],

Defendant sought to pursue the issue again in his motion for a new trial, alleging the coat was “illegally seized from defendant.” Even if this bare assertion was otherwise sufficient — an issue we need not decide — the point was already abandoned. Having allowed the point to die at trial for lack of a proper objection, defendant cannot resurrect it later in his motion for a new trial. State v. McLemore, 541 S.W.2d 723 (Mo.App.1976).

We have, nonetheless, considered the point under Rule 27.20(c), V.A.M.R., to determine whether the admission of the coat in evidence was plain error affecting substantial rights of the defendant. We hold it was not.

The evidence established that although a “police cruiser” followed the cab for several blocks before defendant’s arrest, the cab was not stopped by police action at the point where defendant got out. The cab driver testified he stopped where defendant wanted to stop, evidently an apartment building. Defendant, testifying on the motion to suppress, admitted he exited the cab because it arrived at his destination. Defendant also admitted the coat belonged to him, and that he left it in the cab.

When the cab stopped, one police officer saw defendant “reach up” to the driver, ostensibly to pay the fare. The driver testified, “I don’t recall if he paid before or after he got out, but I did get paid.” [Defendant did not mention the matter of payment in his testimony].

In any event, it is clear that defendant had reached his destination when he got out, and that he departed the cab of his own volition, and not on orders from the police. It is equally clear that defendant did not intend to return to the cab. The cab began moving away from defendant, and only then was the cab intercepted by police.

One has no standing to complain of a search or seizure of property which he has voluntarily discarded, left behind, or otherwise relinquished his interest in so that he no longer retains a reasonable expectation of privacy with regard to it at the time of search or seizure. State v. Achter, 512 S.W.2d 894 (Mo.App.1974); Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970).

Having arrived at his destination and exited from the cab, leaving his coat behind, defendant could no longer entertain any reasonable expectation of privacy with respect to the coat or the cab. Defendant did not intend to return to the cab. He did not ask the driver to wait. Defendant’s occupancy of the cab had ended, and the cab was moving away. The cab would reasonably be expected to proceed to other calls, picking up new passengers and delivering them to their destinations.

Defendant undoubtedly realized that his coat would eventually be noticed and examined, either by the driver or a future passenger.

Under such circumstances, defendant has no standing to object to the search of the cab he no longer occupied, or the seizure of the coat he voluntarily abandoned.

Accordingly, admission of the coat in evidence was not error.

In defendant’s second point, he makes the additional complaint that the court erred in not suppressing an “incriminating admission” made by defendant because it was “the product of an illegal arrest made without probable cause.”

Although this “incriminating admission” is not otherwise identified in defendant’s second point, we assume defendant is referring to a series of verbal statements made by defendant to Detective Bobby L. Roberts of the Joplin Police Department some 24 hours after defendant’s arrest.

Before trial defendant filed a written motion to suppress his statements to Detective Roberts, alleging they were “the fruits of an illegal arrest of defendant” and they “were not voluntarily made by defendant.” The motion was overruled by the trial court after an evidentiary hearing.

When Detective Roberts testified about these statements at trial, defense counsel objected on three occasions on the ground that the questions asked by the Prosecuting Attorney were leading, and on one occasion because “I want to know who is doing the discussing and who is doing the asking, I object to the form of the question.” During the entire direct examination of Detective Roberts by the Prosecuting Attorney, no objection was made by defense counsel on any constitutional ground, nor was there any objection based on voluntariness, or on failure to advise defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

For reasons already articulated regarding the coat, we hold that defendant failed to preserve any constitutional issue with respect to the admissibility of his verbal statements, by reason of the failure of defense counsel to make such objection when Detective Roberts testified about defendant’s statements at trial. State v. Yowell, supra, 513 S.W.2d at 402-403[l, 2]; State v. Bryson, supra, 506 S.W.2d at 361—362[3].

Defendant sought to pursue the issue again in his motion for a new trial, alleging the statements were “illegally and involuntarily taken from the defendant.” This bare conclusional statement was unsupported by any factual allegation. Lack of probable cause for the arrest of defendant — the ground now urged on appeal — was not mentioned in defendant’s motion for a new trial.

It is incumbent upon a defendant, in his motion for a new trial, to set forth in detail and with particularity the specific grounds or causes which he contends entitle him to a new trial. Rule 27.20(a), V.A. M.R.; State v. Redd, 550 S.W.2d 604, 607 (Mo.App.1977). The motion must make known to the trial court defendant’s objections to the admissibility of evidence and whether it was obtained in violation of guarantees afforded him by the Constitution of the United States or of the State of Missouri, or the decisional law of the Federal or State courts. In doing so, defendant must state specifically the grounds for his objection. State v. Redd, supra, 550 S.W.2d at 608.

Accordingly, in addition to defense counsel’s failure to object at trial, we hold that defendant failed to preserve any issue for appellate review with respect to the admissibility of his verbal statements for the further reason that the bare conclu-sional allegation in his motion for a new trial was insufficient to advise the trial court of any assignment of error. Moreover, as noted earlier, the “ground” now advanced on appeal is that defendant’s statements were “the product of an illegal arrest made without probable cause.” This conclusional allegation, even if otherwise sufficient, was not mentioned in defendant’s motion for a new trial. A point not mentioned in a motion for a new trial is not preserved for appellate review. State v. Peterson, 518 S.W.2d 1 (Mo.1974).

For all of these reasons, we hold that defendant failed to preserve any issue for appellate review with respect to his statements to Detective Roberts.

Defendant does not dispute the sufficiency of the evidence to support the verdict, therefore, we need not lengthen this opinion by summarizing further testimony. We have reviewed the entire transcript and find substantial evidence to support the verdict. State v. Amerson, 518 S.W.2d 29, 31 (Mo.1975).

The information is sufficient to charge robbery in the first degree. The verdict, judgment and sentence are in proper form. Rule 28.02, V.A.M.R.

The judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    In re the MARRIAGE OF Stephen C. BRADFORD, Petitioner-Respondent, and Carolynn C. Bradford, Respondent-Appellant.
    No. 10413.
    Missouri Court of Appeals, Springfield District.
    Oct. 25, 1977.

      Raymond H. Vogel, Vogel, Frye & O’Loughlin, Cape Girardeau, for respondent-appellant.
    Arthur T. Stephenson, Caruthersville, for petitioner-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

In this dissolution of marriage action, respondent Carolynn C. Bradford appeals from the refusal of the trial court to set aside the provisions of a default decree apportioning marital property and awarding custody of the parties’ minor child.

Petitioner and respondent were married February 7,1970, at Hammond, in Tangipa-hoa Parish, Louisiana. They separated on August 23, 1975. On August 25 this action was commenced in the Circuit Court of Pemiscot County. On the same day, respondent instituted an action for separation from bed and board in the District Court for Tangipahoa Parish, in Louisiana. Both courts have rendered judgments.

In the Missouri action, the respondent was personally served outside the state. At our request, the Clerk of the Circuit Court of Pemiscot County has furnished us a copy of the summons. We shall comment further concerning the sufficiency of service. The Missouri summons was served on September 12, 1975. There is no record indication that the petitioner was ever served by the Louisiana court, but on October 8,1975, that court entered a judgment in favor of the respondent: (a) decreeing a separation from bed and board; (b) awarding the care and custody of the parties’ minor child to respondent, and (c) dissolving the community of acquests and gains existing between the parties.

No responsive pleading whatever was filed in the Missouri proceeding. On April 6,1976, at the petitioner’s request and after notice to the respondent, the cause was called for hearing. For the first time, counsel appeared for the respondent. He advised the court that no pleading or motion had been filed in the Missouri proceeding because (1) the venue of the action was improperly laid, and (2) respondent’s Louisiana attorney had been led to believe that the effect of § 452.320, para. 1, RSMo Supp. 1975, was to provide for a first, interlocutory hearing of which respondent would receive notice and that upon being notified, respondent could then file pleadings and frame issues concerning the apportionment of marital property and the custody of the child. Counsel asked for a hearing on the question of venue and for a continuance; both requests were denied; a hearing was held upon the petition for dissolution. The evidence heard need not be set forth in detail at this point. At the conclusion of the hearing, the Circuit Court of Pemiscot County entered a judgment reciting petitioner’s appearance in person, respondent’s appearance for the purpose of contesting venue and jurisdiction and for the purpose of requesting a continuance. The court further found that the petitioner had been a resident of this state for more than 90 days; that more than 30 days had elapsed since the respondent was served and respondent was in default. The court found the marriage to be irretrievably broken and that one child was born of the marriage. The child was found to be in respondent’s custody. The court also found that the respondent was not pregnant. It was accordingly ordered and decreed: (1) that the marriage be dissolved; (2) that custody of the parties’ minor child be awarded to the respondent for ten months each year and that petitioner have custody for two months each summer. Petitioner was ordered to pay respondent the sum of $100 per month during the time respondent had custody of the child. The trial court also made a general order apportioning the marital property. The notice provided for in § 452.320, para. 1, RSMo Supp. 1975 was ordered mailed.

Respondent filed two after-trial motions. The first of these motions was filed April 16, and was styled “Objection to Entry of Order of Dissolution of Marriage.” The second motion was filed May 4 and was entitled “Motion to Set Aside Judgment.” The assignments of error are much the same in both motions. Condensed and summarized, the allegations of error in both motions were: (1) that the venue of the action was improperly laid because the parties’ marital domicile was in Cole County, not Pemiscot County; (2) that the Circuit Court of Pemiscot County was without jurisdiction because the Louisiana court had jurisdiction of the respondent and had entered a decree prior to April 6; (3) that the respondent would have appeared and filed pleadings but for her counsel’s mistake of law; (4) that the trial court granted relief in excess of that prayed in the petition; (5) that respondent had a good defense because petitioner had substantial property and earnings not disclosed to the trial court. A hearing was held on both motions on June 15, 1976. The respondent offered two affidavits and an authenticated copy of the Louisiana judgment in evidence, and some testimony was heard. On June 18, the trial court denied respondent’s motion and this appeal followed.

A word concerning the posture of the cause on appeal seems appropriate. The motion filed April 16, 1976, seems to have been intended as a petition for review as authorized by Rule 74.15. We assume the second motion was filed because such a petition does not lie if the defendant has been personally served with process. Zbryk v. B. F. Goodrich Company, 344 S.W.2d 138, 140[1] (Mo.App.1961). Whatever counsel’s reasons for filing the second, duplicative motion, we might regard the first motion as a motion for new trial, Gorzel v. Orlamander, 352 S.W.2d 675, 677-678 (Mo.1962), but as just noted, the “Motion to Set Aside” duplicates and to some extent expands the allegations of error set out in the first motion, and sets up both matters which appear on the face of the record and matters dehors the record as grounds to set aside the default. We are aware that there is a distinction between a motion to set aside a judgment for irregularity under Rule 74.32 and a motion in the nature of a writ of error coram nobis; it is nevertheless possible to combine a motion to vacate for irregularity and a motion in the nature of a writ of error coram nobis and to present irregularities patent upon the record and error dehors the record in one proceeding. Murray v. United Zinc Smelting Corp., 263 S.W.2d 351, 354 (Mo.1954); Crab-tree v. Aetna Life Ins. Co., 341 Mo. 1173, 1180-1181, 111 S.W.2d 103,106[l-4] [5] (Mo. 1937). When such a combined motion is filed and proof is heard, the motion to set aside or to vacate constitutes a new and independent proceeding commenced by motion, and the order entered by the court is itself an appealable order. In re Jackson’s Will, 291 S.W.2d 214, 219-220[6] [7, 8] (Mo.App.1956). We accordingly regard the ruling on the motion to set aside as the judgment appealed from.

The respondent’s first assignment of error, as briefed, is that “the court erred in refusing to set aside the default judgment, because it is the policy of the court, especially in divorce or dissolution cases, that causes should be tried on their merits, where such setting aside would result in no detriment or prejudice.” This point is not developed in the “Argument” part of the brief, and we will not pursue it as an abstraction. Bopp v. Spainhower, 519 S.W.2d 281, 286[7] (Mo. banc 1975); State v. Schulten, 529 S.W.2d 432, 434[4] (Mo.App.1975).

Another point, strenuously and repeatedly advanced by the respondent, is that the default should be set aside because the petitioner’s Missouri counsel advised respondent’s Louisiana attorney that under the provisions of § 452.320, para. 1, RSMo Supp. 1975, respondent would have ten days to file objections to any part, of the judgment with which she disagreed. The respondent assumes that counsel for the petitioner held an erroneous view of the law, and she is correct in that assumption. In State ex rel. Nilges v. Rush, 532 S.W.2d 857 (Mo.App.1975), a mandamus action, the court pointed out that one purpose of the Uniform Marriage and Divorce Act, 9 U.L.A. §§ 301-316 (Master ed.1973) from which our Dissolution of Marriage Act, §§ 452.250-452.415 RSMo Supp. 1975, is taken, was to abolish interlocutory decrees in those states which have them, and suggested that in any event, the rules governing civil actions would prevail over apparently contradictory provisions in the Act because of the specific language of § 452.300(1), RSMo Supp. 1975. See State ex rel Nilges v. Rush, supra, 532 S.W.2d at 859[1-3]. In Brand v. Brand, 534 S.W.2d 628, 631[3] (Mo.App.1976), the court went further and held that the ten-day notice was not jurisdictional and that a party’s failure to receive such notice in no way attenuated the trial court’s authority to enter an order of dissolution. Manifestly, petitioner’s counsel had an erroneous view of the law, and there is no doubt that he communicated that view to the Louisiana attorney who represented the respondent.

It is important in this case that respondent makes no allegation of fraud in the procurement of the judgment. Indeed, she carefully points out in her brief that she makes “no allegation” that Mr. Stephenson intentionally misled her Louisiana counsel. Neither is there any record indication that, as in J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961), and other cases cited by the respondent, petitioner’s counsel obtained the default judgment in violation of an agreement not to do so; again, the record clearly shows the contrary is true. Further, although our Dissolution of Marriage Act is a species of “no fault” legislation, it is important to note that respondent made no showing of any meritorious defense to those parts of the judgment to which she now objects. There is a bare allegation that the petitioner “has substantial property and earnings which he did not disclose to the court,” but respondent makes no attempt to demonstrate how the existence of such property or income renders the decree inequitable or essentially unfair. All our statutes require is a subjectively fair and equitable division of the marital property, In re Marriage of Schulte, 546 S.W.2d 41, 46 (Mo.App.1977) and authorities cited n. 6, and the respondent has alleged no fact or circumstance which would, if proved, affect the division of marital assets. Neither has she averred any factual matter which would necessitate a different award of custody of the minor child. The respondent has been granted custody of her child for ten months of the year; petitioner is to have him for two months each year; custody will alternate between parents on Thanksgiving and Christmas. There is no suggestion that the petitioner is unable to care for his child or that he is an unfit custodian. It is a familiar principle that when both parents are fit custodians, a child’s best interests are usually served by association with both parents. Asbell v. Asbeli, 430 S.W.2d 436, 438[6] (Mo.App.1968); Graham v. Graham, 428 S.W.2d 941, 944-945[4] (Mo.App.1968). In short, it is neither alleged nor indicated that the default judgment was the product of misrepresentation nor that the respondent has any meritorious defense to present. On the record before us counsel’s negligence is imputable to the respondent, and Mr. Stephenson’s erroneous representations of the law of Missouri furnish no ground for vacating the default judgment. In re Marriage of Banners, 549 S.W.2d 941, 942[2] (Mo.App.1977); Fulton v. International Telephone & Telegraph Corp., 528 S.W.2d 466, 469[3] (Mo.App.1975); Askew v. Brown, 450 S.W.2d 446, 450[2-5] (Mo.App.1970).

The respondent’s contention that the Circuit Court of Pemiscot County was without jurisdiction deserves serious consideration, even though it is confusingly presented. As briefed, respondent’s point is that the Louisiana decree “takes precedence” over the Missouri judgment because the Full Faith and Credit Clause of the United States Constitution, U.S. Const, art. IV, § 1, cl. 1, and implementing legislation, 28 U.S.C. § 1738 (1960), require this court to recognize and regard the Louisiana decree as conclusive. The force of this contention is considerably diminished by the respondent’s concession that the Missouri decree is effective to dissolve the marriage. We are in doubt that the respondent may concede the validity of the order of dissolution, seek further relief in the Missouri court and simultaneously deny the Missouri court’s right to act, Germanese v. Champlin, 540 S.W.2d 109, 112[8] (Mo.App.1976); Brand v. Brand, supra, 534 S.W.2d at 631[3], but in the circumstances we prefer to consider the respondent’s point on its merits.

The respondent has cited us to Urbanek v. Urbanek, 503 S.W.2d 434 (Mo.App.1973) and McDougal v. McDougal, 279 5.W.2d 731 (Mo.App.1955). In Urbanek v. Urbanek, supra, the court had to consider an appeal from an order of the Madison County Circuit Court dismissing the plaintiff wife’s petition for a divorce. The court held, inter alia, that notwithstanding the fact that plaintiff filed her action in Missouri prior to the time her husband filed an action for divorce in Mississippi, the Full Faith and Credit Clause of the United States Constitution compelled the Missouri court to recognize the foreign decree as it related to the termination of the marriage, and that the foreign decree was conclusive as to all matters except the jurisdictional facts. The Mississippi decree recited a finding of jurisdictional fact and further recited a “full, complete and absolute divorce ” (our emphasis) to the defendant husband. The court observed, 503 S.W.2d at 439-440, there was no evidence that the defendant husband was not a bona fide domiciliary of the State of Mississippi, the Mississippi decree was presumptively valid, and must be given full faith and credit in Missouri. We take the case to stand for the proposition that the doctrine of preemptive jurisdiction will not apply to defeat a valid decree of divorce when the actions are filed in different states. Urbanek v. Urbanek, supra, 503 S.W.2d at 440, n. 5. McDougal v. McDougal, supra, 279 S.W.2d 731, is material here only insofar as it holds that a foreign judgment rendered by a court of general jurisdiction is presumed, absent any showing to the contrary, to be valid. McDougal v. McDougal, supra, 279 S.W.2d at 739-740.

Neither of the precedents cited aids the respondent here. The Louisiana decree, as noted, recites on its face that it is a decree of separation from bed and board. The pleadings in this case clearly show that the law of Louisiana is relied on, and in consequence we are required to take judicial notice of the law of that state to determine the effect of the decree. Rule 55.-21(b); Valleroy v. Southern Railway Company, 403 S.W.2d 553, 555[1, 2] (Mo.1966). The Louisiana statutes which we have examined clearly indicate that a decree of separation from bed and board is an interlocutory decree. Of particular interest is the first paragraph of La.R.S. 9:302 (1960) (our emphasis):

When there has been no reconciliation between the spouses for a period of one year or more from the date the judgment of separation from bed and board become [sic] final, the spouse who obtained this judgment may sue for and obtain a judgment of absolute divorce. If no such divorce action is instituted within a year and sixty days from the date the judgment of separation from bed and board became final, the other spouse may sue for and obtain a judgment of absolute divorce.

This statute and its predecessors were construed in Fulmer v. Fulmer, supra, n. 4, 301 So.2d 622, for the immediate purpose of determining whether “fault” as adjudicated in a separation hearing was res judicata in subsequent divorce proceedings upon the issue of a wife’s fault, or freedom from it, which under Louisiana law determines the wife’s post-divorce right to alimony. Without going into detail, we may say that the opinion indicates there are a number of issues which are not finally determined in a separation proceeding, and those issues may, in some instances, be re-litigated in the final divorce action. Fulmer v. Fulmer, supra, 301 So.2d at 625, 629[2, 3][5][6]. See also Moon v. Moon, 345 So.2d 168, 172—173[2][3] (La.App.1977).

The point of our discussion is this: The great weight of authority is that a judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, not subject to modification in the state in which it was rendered. Interlocutory decrees are not entitled to full faith and credit under the provisions of U.S. Const, art. IV, § 1, cl. 1, and implementing legislation. White v. White, 78 Ariz. 397, 281 P.2d 111, 113[3, 4][5, 6] (1955); Hendrix v. Hendrix, 160 Conn. 98, 273 A.2d 890, 893[1] (1970); Morris v. Morris, 197 N.W.2d 357, 359[4] (Iowa 1972); Iverson v. Iverson, 42 Misc.2d 338, 247 N.Y.2d 960, 965-966[3] (1964); 27B C.J.S. Divorce § 331 (1959). The statute quoted shows that a Louisiana decree of separation from bed and board is only an interlocutory decree; such a decree does not really destroy the marital relationship nor necessarily determine the issue of “fault” as it bears on the wife’s right to alimony. We note further that the Louisiana judgment recites on its face that the petitioner was not before the court when the judgment was rendered. We conclude that we are not required to recognize the Louisiana decree as a bar to the Missouri judgment, and we decline to do so. See R. Leflar, American Conflicts Law, § 231, pp. 558-559 (1968) [hereinafter cited as Leflar].

In briefing a further claim of error, the respondent chooses to regard the Missouri judgment as valid, and asserts that the judgment is improper and should be set aside for the following reasons: (1) the judgment goes beyond the pleadings; (2) the trial court failed to apportion the marital property in just proportion, and (3) the evidence is insufficient to support the order apportioning the marital property. Intermixed generally with these assertions are respondent’s claims that: (a) the venue of the action was improper, and (b) the trial court did not have jurisdiction of the respondent’s person.

These hodgepodge assertions of error have little merit in this particular case. At the time the default hearing was had on April 6, 1976, the petitioner testified that his “present address” was Jefferson City, Missouri; that he was then Director of Planning in the Missouri Office of Administration, and that he had been a resident of Missouri “all [his] life.” Further, petitioner’s evidence was that he had resided in Missouri for more than 90 days prior to the time his petition was filed, and as counsel pointed out, the petition had been filed nearly seven months before the hearing.

According to petitioner’s evidence, he lived in Jefferson City, Missouri, when the action was commenced. Respondent left home on August 23, 1975. The parties had been living in Jefferson City for some time and were “buying a home” there. Petitioner was “born and raised” in Pemiscot County, and he and respondent had consistently voted in Pemiscot County. The parties presumably had paid taxes in Pemiscot County and petitioner believed and considered himself to be a resident of that county. While the petitioner was gone “for a weekend” respondent “apparently” left Jefferson City and went to Louisiana. Hammond, Louisiana, was where the respondent was “born and raised.”

The petitioner testified that respondent took “several items” of personal property with her to Louisiana. Contrary to respondent’s assertion that no proof of the value of the property was made, the petitioner had “notes” concerning the value of the personal property and the trial court ordered those notes marked as an exhibit and further ordered that they be put in evidence. Petitioner estimated that the respondent had taken property worth approximately $29,000 with her, and she had left items worth approximately $15,425. Respondent also had refused to allow the petitioner to return the child to Missouri for a visit at Christmas. Petitioner testified that he believed his marriage was beyond retrieval.

There was some testimony concerning the petitioner’s ability to make payments to support his child. The petitioner earned about $14,500 annually; he estimated his wife’s independent worth at $300,000 or more. During the marriage, respondent received an annual income of about $3,000 which she spent as discretionary income.

Petitioner further testified that the “down payment” on the parties’ Jefferson City property represented a gift made by the respondent’s mother to both parties, and that thereafter he made “all of [the] payments” on the property, described as a house located at 2803 Sue Drive in Jefferson City. Other marital property included a joint savings account in the amount of $14,800 in the National Bank of Caruthers-ville, against which there was a claim for $8,600, and a farm near Holland, in Pemis-cot County. The trial court apportioned the marital property as follows: The farm property in Pemiscot County and the residence of the parties in Jefferson City was awarded to petitioner, petitioner to pay the indebtedness thereon; the joint savings account was divided equally between the parties, and the respondent was awarded all personal property in her possession, which the trial court found to be of a reasonable value of $29,000. Custody of the child was divided as indicated.

To dispose of the respondent’s persistent assertion that the venue of the action was improperly laid, we may say we believe the record is sufficient to show that the petitioner “resided” in Pemiscot County and that Pemiscot County was in fact the parties’ marital domicile. § 452.300(1) RSMo Supp. 1975 provides that dissolution proceedings be had in the county where the plaintiff resides. See State ex rel. Adams v. Corrigan, 538 S.W.2d 372 (Mo.App.1976). In our opinion, the word “resides” as used in § 452.300(1) is the equivalent to “is domiciled in.” § 452.305, RSMo Supp. 1975, with one exception not material here, is taken from and is very similar to § 302 of the Uniform Marriage and Divorce Act, 9 U.L.A. at 479, and the Commissioners’ note following § 303, 9 U.L.A. at 482, states that:

“ . . . [Residence, of course, has the meaning ‘domicile,’ as this is made the basis of jurisdiction in Section 302(a)(1) and the comment thereto.”

The petitioner testified that he was reared in Pemiscot County and that he regarded that county as his home. As recent cases and modern authority point out, a person does not acquire a domicile different from his domicile of origin unless he removes to his new residence with the present intent to regard the new residence as a permanent home. Gaffney v. Gaffney, 528 S.W.2d 738, 741[4] (Mo. banc 1975); Leñar, § 10, p. 19. Petitioner’s evidence tended to negate any present, fixed intention to regard Jefferson City, in Cole County, as a present home. In addition, it is recognized that participation in community affairs, such as voting, is evidence which demonstrates a sense of public responsibility and supports a finding of domicile in that community. See Herrin v. Herrin, 103 Mont. 469, 63 P.2d 137, 138-139[3] (1936); Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L. Rev. 1232, 1236 (1948). We bear in mind that the parties were purchasing a residence in Jefferson City at the time they separated, but in view of the parties’ comparative wealth, the maintenance of a second residence does not necessarily negate a permanent “residence” or domicile in Pemiscot County. In re Harkness’ Estate, 183 App.Div. 396, 170 N.Y.S. 1024, 1029-1030 (1918); Note, supra, 61 Harv.L.Rev. at 1235-1236. Again, the record supports a finding that the petitioner’s marital domicile was in Pemiscot County and that the venue of the action was not in Cole County.

Two further, wholly inconsistent assignments of error must be considered. The respondent asserts that the Missouri court lacked personal jurisdiction and therefore could neither award custody of the child nor apportion the marital property. At the same time, she attacks the apportionment of marital property as being improper under the Dissolution of Marriage Act. Our principal concern is whether it can be said, under any tenable legal theory, that the Circuit Court of Pemiscot County acquired personal jurisdiction in this action.

As we have said, we have personally examined the writ of summons which issued in this cause on August 25,1976. The summons was prepared on Form 5, as promulgated by our Supreme Court. It is directed to the respondent. The return recites that the summons was served upon the respondent on September 12,1975, in the Parish of Tangipahoa in the State of Louisiana, together with a copy of the petition. The return is sworn to by James Bennett, Deputy Sheriff of Tangipahoa Parish. Then follows the certificate required by Rule 54.-20(b)(1) which in terms states:

“ . . . [T]here shall be attached to the affidavit the certificate of such judge or clerk as to the official character of the affiant and to his authority to serve process in civil actions within the state or territory where such service was made.”

Form 5, promulgated by our Supreme Court, directs that the officer making the service shall swear to the affidavit of service before the judge or the clerk of which he is an officer. The directions printed on Form 5 plainly provide that a deputy clerk may not act in place of the clerk. Nevertheless, the certificate required by Rule 54.-20(b)(1) was executed by a deputy clerk. The service of process outside the state was manifestly deficient. The question then is, may it be said that personal jurisdiction of the respondent was conferred by consent or waiver? Rule 55.27 is substantially the same as Fed.R.Civ.P. 12(b-h); both deal with the presentation of defenses and objections, and we consider precedents construing Fed.R.Civ.P. 12(b-h) persuasive. Cf. Lynch v. Webb City School District No. 92, 418 S.W.2d 608, 617[15] (Mo.App.1967).

There is little doubt in our minds that the respondent had actual knowledge of the Missouri proceeding from and after September 12, 1975. Nevertheless, because the return was deficient, the service of process was not effective to confer personal jurisdiction of the respondent upon the Missouri court, and defendant did not waive the defense of lack of personal jurisdiction by failing to raise that defense by timely motion. Wyrough & Loser, Inc., v. Pelmor Laboratories, Inc., 376 F.2d 543, 546, n. 4 (3d Cir. 1967); Di Vecchio v. Gimbel Brothers, 40 F.R.D. 311, 314 (W.D.Pa.1966). Respondent may, nevertheless, have submitted to the Missouri court’s jurisdiction by consent or by waiver. Zelson v. Thomforde, 412 F.2d 56, 58-59, n. 8 (3d Cir. 1969).

The record shows that counsel for the respondent did appear on April 6, 1976. The court inquired directly of counsel’s purpose; the judge asked if counsel’s appearance was “for limited purposes attacking venue.” Counsel answered affirmatively. The discussion then proceeded:

“[T]he Court: Appears for limited purpose of attacking venue, and perhaps jurisdiction?
Mr. Vogel: Yes, sir.
The Court: And makes oral application for what?
Mr. Vogel: I would like to have a hearing with regard to the matter of proper venue, Your Honor.”

The trial court refused a hearing upon improper venue, and we find no specific objection made by counsel to personal jurisdiction of the respondent. After the oral motion contesting venue was made, counsel then moved for a continuance. This motion, or application was denied. The default judgment mentions an appearance for the purpose of contesting “jurisdiction”, but in context the recital can only be taken as referring to the respondent’s contention that neither party “resided” in Pemiscot County. We reiterate that we find no specific objection to personal jurisdiction in the prehearing procedure.

Here, therefore, we have a situation in which the 55.27(a) defense of improper venue was properly raised by oral motion; however, the defense of lack of personal jurisdiction was not presented nor mentioned, and by the specific language of Rule 55.27(g)(1)(B) must be considered waived. Zelson v. Thomforde, supra, 412 F.2d at 58, 59[2, 3][4]; Bremier v. Volkswagen of America, Inc., 340 F.Supp. 949, 951[2] (D.D. C.1972).

We turn to the respondent’s contention that the judgment goes beyond the pleadings because the petition makes no mention of a division of property nor an award of custody, nor does the prayer of the petition ask for any division of the marital property or for child support. We find no merit in this argument. To the extent it has jurisdiction to divide marital property — and here personal jurisdiction was conferred upon the trial court by waiver — a trial court must specifically decree a division of marital property upon dissolution of a marriage. L.F.H. v. R.L.H., 543 S.W.2d 520, 522 (Mo.App.1976); Pendleton v. Pendleton, 532 S.W.2d 905, 906[3] (Mo.App.1976). This case is unlike Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976), which appears to support the respondent’s position but is, we believe, confined to its facts. This case was not commenced before the enactment of the Dissolution of Marriage Act; unlike Blessing, evidence was presented here which would, under the rules, amend the petition to conform to the proof, and despite the respondent’s protestations, it is clear that she understood there would be a division of marital property in the Missouri proceeding. In fact, such proof as there is in the record indicates that the petitioner’s attorney and respondent’s attorney were still “negotiating” a division of marital property “as late as Sunday or Monday [April 4 and 5, 1976]” before the default hearing on Wednesday, April 6, 1976. We believe, and hold that the trial court properly undertook to apportion the marital property.

A further objection is that the trial court failed to apportion the marital property in just proportion and that the evidence is insufficient to support the Missouri judgment to the extent that the decree apportions marital property. These complaints are made without citation of authority— only the statute, § 452.330, RSMo Supp. 1975 is cited — and we decline to consider them.

We also consider respondent’s claim of error in awarding custody of the parties’ minor child to be without merit. The only objection made to the award of custody is that the Missouri court was without personal jurisdiction of the respondent. As we have noted, the Missouri court acquired personal jurisdiction by waiver. Enforcement of the award of custody may be another matter, but the award is not subject to the objection made here.

Finally, to put the appeal in perspective, we may say we realize that default decrees are not generally favored in divorce cases; the state is said to have an interest in protecting the marriage contract and the welfare of the parties. See, e. g., Hawkins v. Hawkins, 462 S.W.2d 818 821[1] (Mo.App.1971); Rogers v. Rogers, 399 S.W.2d 606, 611-612[6] (Mo.App.1966). The precedents so holding, however, are of minimal application here, where the only apparent interest of either party lies in obtaining a greater share of the marital property. Having engaged, for whatever reason, in an interstate stand-off for several months, respondent now asks reversal because her counsel relied on opposing counsel’s tentative view of the law. The real question of merit is whether the respondent was unreasonably denied access to the courts of this state. Upon review of the whole record, we conclude she was not. Accordingly, the judgment is in all respects affirmed.

FLANIGAN, J., concurs in result.

BILLINGS, C. J., disqualified.

      . This judgment was proved by a copy thereof authenticated as required by 28 U.S.C. § 1738 (1960) and § 490.130, RSMo (1969).

      . § 452.320, para. 1, in effect when this case was tried, read (emphasis added): “[I]f both of the parties by petition or otherwise have stated under oath . . . that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope, certified or registered, deliver to addressee only, return receipt requested, and with postage prepaid, enclosing a notice to the party not denying that absent objection ... being filed within ten days añer date of mailing . an order of dissolution of marriage may be entered of record. The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order . . .” The ten-day notice requirement was repealed by the Seventy-ninth General Assembly, Laws of Mo. 1977, Act 30.

      . Reference to statutes and rules are to RSMo (1969) and V.A.M.R. except where otherwise specifically noted.

      . See Rook v. John F. Oliver Trucking Company, 505 S.W.2d 157, 160 (Mo.App.1974); Diek-mann v. Associates Discount Corporation, 410 S.W.2d 695, 700 [7, 8] (Mo.App. 1966); Comment, Procedure — Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 286, 290 (1963).

      . Which provides that: “[t]he rules of the supreme court and applicable court rules apply to all proceedings under [the Dissolution of Marriage Act]” . . .

      . The statute is quoted marginally in Fulmer v. Fulmer, 301 So.2d 622, 626, n. 4 (La.1974).

      . We are aware that there is a corollary principle, mentioned in Hendrix v. Hendrix, supra, 160 Conn. 98, 273 A.2d at 893, which might require us to give the Louisiana judgment the same effect here as it has in Louisiana, if enforcement of the Louisiana judgment was sought here. That is not the respondent’s position; all she asks is that we recognize the Louisiana judgment as a bar to this action.

      . Substantially our § 452.1 D5(l)(l) RSMo Supp. 1975.

      . We note it is now suggested, and sometimes held, that any defense which may be raised by motion under Rule 55.27(a) (except lack of subject-matter jurisdiction and failure to state a claim or defense) is waived by failure to object by timely motion or pleading, if the party has fair, actual notice of the pending action. 5 C. Wright & A. Miller, § 1391, p. 857-858 (1969), and see Aiken v. Bynum, 128 Ga.App. 212, 196 S.E.2d 180, 181 [4] (1973). If the language of Rule 55.27 is taken literally, respondent has waived improper venue and want of personal jurisdiction.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Douglas PADGETT, Defendant-Appellant.
    No. 10571.
    Missouri Court of Appeals, Springfield District.
    Oct. 26, 1977.
    Dennis Reaves, Pros. Atty., Stockton, for plaintiff-respondent.
    John A. Watkins, Greenfield, for defendant-appellant.
   BILLINGS, Chief Judge.

In a jury-waived trial defendant Padgett was convicted of misdemeanor possession of marijuana and sentenced by the court to the county jail for 60 days. This appeal questions the sufficiency of the evidence to support the conviction. We affirm.

As an incident to defendant’s arrest under a probation and parole warrant, the arresting officer discovered a homemade pipe in defendant’s pant pocket. The pipe, received as an exhibit, is made from a straight piece of wood. It is three and one-half inches long, is one inch wide at the bowl end, and tapers down to one-quarter inch at the mouth end. The bowl end is three-quarters of an inch wide and the bowl is hollowed so as to form a circle one-quarter inch in diameter and one-quarter inch in depth. A tiny mesh screen is located at the bottom of the bowl and between that container and a three-sixteenths of an inch hole which extends from the bowl to the end of the “stem.”

The arresting officer testified he discovered the pipe when he “patted down” the defendant and when he removed it from the pant pocket it smelled of burned marijuana. He said there “was some grassy type material still in the pipe and some ashes burnt material in it.”

The pipe was delivered to a chemist for the Region II Crime Laboratory at Springfield for analysis of the material in the bowl. The chemist testified a test of the residue extracted from the pipe bowl revealed tetrahydrocannabinol, “the active ingredient that’s found in marijuana resin and it’s only found in marijuana plants.” The witness said there was more than a “trace” of marijuana in the pipe bowl and “it was easily measured.”

Defendant and a companion both testified defendant found the pipe on the paving near their car when they returned to the vehicle from a nearby beach. Defendant said he had the pipe “between a half-hour and an hour” before his arrest and did not know it contained marijuana.

In urging we reverse the judgment and order his discharge, the defendant contends the state’s evidence was insufficient because it failed to show he was aware there was marijuana in the pipe and thus the element of conscious possession of the controlled substance is lacking. In support of this proposition, defendant relies upon State v. Polk, 529 S.W.2d 490 (Mo.App.1975).

In Polk officers found a jewelry box in an apartment rented by defendant and others. In the box were objects to process and administer heroin and seven capsules. The state’s chemist testified five of the capsules contained traces of powder which tested positively for heroin. The amount of heroin was so minute that it could not be weighed, the tests consumed all of the heroin traces found, and, the capsules containing the traces were not introduced in evidence.

In ruling the state’s evidence was not sufficient to support Polk’s conviction, Judge Kelly of the St. Louis District wrote:

“To sustain a conviction for possession of a controlled substance in violation of § 195.020 RSMo. it is essential that the State prove that the defendant did knowingly and intentionally have in his possession the proscribed controlled substance. It is not sufficient that it prove only actual or constructive possession, but the test is whether the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it. State v. Burns, 457 S.W.2d 721, 724[1] (Mo.1970) said: ‘Possession without knowledge of such possession is not possession in the legal sense of that word Knowledge of the existence of the object is essential to physical control thereof with the intent to exercise such control and such knowledge must necessarily precede the intent to exercise or the exercise of such control . . .’ Burns, supra, was followed in State v. Berry, 488 S.W.2d 667, 669 (Mo.App.1972).”
******
“The decisive issue in this case as we conceive it is whether the State is entitled to the ‘inference’ of knowledgeable and conscious possession of narcotics from the facts of exclusive possession of the premises where only ‘traces’ of heroin are found in some capsules contained in a box hidden in a bedroom closet in the apartment occupied by the defendant. We have read no case where a finding of ‘traces’ of a narcotic alone has been held sufficient to support a finding that the defendant had possession of the narcotic ‘in the legal sense of the word.’ In every case we have read there has been at least a measurable quantity of the narcotic found. This defendant was charged with the possession of heroin on May 24, 1973. The only evidence in this case was that someone at some time possessed some heroin as was evidenced by the results of the color test and microcrystalline test conducted by an expert in the field. To find the defendant guilty under the facts of this case of a charge of knowledgeable possession would require the piling of one inference upon another and this is not permitted.” 529 S.W.2d at 492, 493.

Judge Kelly was careful to note that Missouri cases indicate that possession of any amount of a controlled substance, however small, is within the prohibition of the Uniform Narcotic Drug Act and limited the holding in Polk to the peculiar facts and circumstances of that case. In so doing, he noted that an amount of controlled substance “so miniscule as to constitute a mere ‘trace’ and which is immeasurable and consumed in the performance of the basic test necessary for identification of the substance is insufficient to support a finding that the accused' was knowingly, intentionally and consciously in possession of the controlled substance in violation of the statute.” 529 S.W.2d 494.

Polk involved a constructive possession, while here we have actual possession of the controlled substance by the defendant. In Polk only mere traces of an immeasurable amount of the substance was present. Here, the chemist testified there was more than a trace of marijuana and a measurable quantity of the substance. In Polk the mere trace of heroin was consumed by the test. Here, notwithstanding the testing, a charred residue of material remains in the bowl of the pipe. Grassy and burned material which smelled like “burned marijuana” was present in the bowl of the pipe when it was removed from defendant’s pocket. Defendant admitted that he was familiar with the smell of marijuana and instruments used to smoke marijuana.

The scope of our review in this court-tried case is not to weigh the evidence but determine whether or not the trial court’s decision is supported by substantial evidence. And, we defer to the trial court’s determination of the credibility of witnesses and resolution of conflicts in testimony. State v. Rose, 535 S.W.2d 115 (Mo.App. 1976). Further, we are required to accept all evidence and inferences supporting the conviction and cast aside contrary evidence and inferences. State v. Rose, supra.

Defendant had in his possession an uncommon appearing pipe which contained a measurable amount of marijuana. He was familiar with the smell of this controlled substance and the pipe contained grassy material and had the odor of burned marijuana. The trial judge, as the trier of the fact, was at liberty to reject defendant’s explanation of his possession of the pipe and its contents and conclude defendant possessed the marijuana with the requisite knowledge and intent.

We hold there was substantial evidence to support defendant’s conviction.

The judgment is affirmed.

All concur.

      . The transcript indicates a total of three separate tests of the contents of the pipe. Only the chemist that conducted the last test was called as a witness for the state.