author: MARTIN, Chief Judge.

text:
    RUBY CONSTRUCTION COMPANY, INC., Appellant, v. DEPARTMENT OF REVENUE, COMMONWEALTH of Kentucky, by and on Relation of Maurice P. CARPENTER, Commissioner of Revenue, and Kentucky Board of Tax Appeals, Appellees.
    Court of Appeals of Kentucky.
    Opinion Nov. 3, 1978.
    Modified Nov. 10, 1978.
    Discretionary Review Denied April 3, 1979.

      Bruce M. Reynolds, Stites, McElwain & Fowler, Louisville, for appellant.
    William S. Riley, John A. Nefzger, Dept, of Revenue, Frankfort, Dale W. Henley, Paul W. Blair, Hogge, Blair & Dehner, Morehead, for appellees.
    Before MARTIN, C. J., and LESTER and WHITE, JJ.
   MARTIN, Chief Judge.

This is an appeal of a decision of the Kentucky Board of Tax Appeals as affirmed by the Franklin Circuit Court. We are presented with two issues: first, whether a multiform construction company engaged in interstate operations, which reports its income using the percentage of completion method of accounting, may allocate its income and losses to Kentucky under the formulary apportionment method defined at KRS 141.120(9), or must allocate under the separate accounting method pursuant to KRS 141.010(10)(a) and 103 KAR 16:160 (“Regulation IC — 16”); and second, whether the definition of “Taxable Net Income,” KRS 141.010(14)(b), precludes the use of the separate accounting method to the extent that it produces a taxable net income which is greater than net income. The Board held the taxpayer, Ruby Construction Company, Inc., must allocate income under the separate accounting method. We disagree and reverse for the reason that the summary procedure mandated by Regulation IC-16 is contrary to both the letter and the spirit of the statute. Accordingly, we need not consider the issue concerning the relationship between net income and net taxable income as set out in KRS 141.010(13) and (14)(b).

The facts in this case were stipulated. The appellant and taxpayer, Ruby Construction Company, Inc., is a general construction contractor and has been engaged in that business since 1952. Ruby generally performs its services pursuant to long-term construction contracts and, accordingly, uses the percentage of completion method of accounting for tax purposes.

During the taxable year ending February 28,1971, Ruby performed services pursuant to construction contracts only in Indiana and Kentucky. The net income realized from the performance of these construction contracts in Kentucky was $168,229.64. The performance of construction contracts in Indiana produced a loss of $153,225.79. For the same year Ruby had net income from sources other than construction contracts of $77,154.36. For tax purposes Ruby categorized each Kentucky and each Indiana construction job it performed by job number, gross receipts, job costs, and gross profit for each job.

Ruby, in computing the amount of Kentucky income tax owed by it pursuant to KRS 141.040, calculated its tax liability by offsetting its Indiana losses against its Kentucky gains, thereby arriving at a “net income” figure in the amount of $45,220.55. This figure was then used to compute its “taxable net income” which it reported to be $45,181.29.

The Kentucky Department of Revenue conducted a field audit of Ruby’s return for the taxable year ending February 28, 1971, and asserted that, under the separate accounting method of apportionment set forth in KRS 141.120(10)(a) and Regulation IC-16, the losses experienced on construction jobs in Indiana were not deductible in determining Kentucky net income or Kentucky taxable income. As a result of their recomputation of Ruby’s net income, the Department asserted that Ruby’s total net income earned in Kentucky was $196,489 less a Federal tax of $42 resulting in Kentucky taxable income of $196,447. Thus, on March 7, 1974, the Department assessed an income tax deficiency in the amount of $10,588.60 plus statutory interest.

Ruby appealed this ruling to the Board, which affirmed the Department’s ruling assessing the deficiency on July 23, 1975. This decision was appealed to the Franklin Circuit Court. On April 28,1977, the circuit court entered a judgment affirming the decision of the Kentucky Board of Tax Appeals.

Because Ruby is a multi-state corporation, the computation of the Kentucky income tax liability involves a three step procedure. Kroger Company v. Department of Revenue, Ky.App., 556 S.W.2d 156 (1977). First, the corporation must compute its gross income; next, the corporation determines its net income. It is only at the third stage when the corporation is calculating its taxable net income that the corporation’s business income is allocated and apportioned to Kentucky under the provisions of KRS 140.120. It is at this third stage of computation that Ruby’s and the Department’s interpretation diverge.

The general formula for allocating and apportioning income is the three-factor formula set forth in KRS 141.120(9). Basically, that subsection provides that income should be allocated among payroll, property, and sales factors and apportioned to Kentucky in the same ratio that payroll, property, and sales connected with Kentucky operations bear to all payroll, property, and sales of the corporation.

In certain situations, however, such computations will not yield an accurate result in determining income allocable to the business activity of a given enterprise in Kentucky. It is at this point — when the three-factor formula does not fairly represent the business activity of a taxpayer in the state — that KRS 141.120(10) becomes relevant. That subsection provides that if the allocation and apportionment provisions of this section do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the Department may require, with regard to all or any part of the taxpayer’s business activity, if reasonable: (a) ' separate accounting; (b) the exclusion of any one or more of these factors; (c) the inclusion of one or more additional factors which will clearly represent the taxpayer’s business activity in this state; or (d) the employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income. Because it allows the Commissioner of the Department of Revenue or the taxpayer to modify, or, in some events, totally disregard the factors set out in KRS 141.120(9), KRS 141.120(10) is sometimes called the relief clause.

Of particular significance insofar as this appeal is concerned is Regulation IC-16 issued under KRS 141.120(10) by the Kentucky Department of Revenue. This regulation, the basic provisions of which were adopted in 1962, seeks to interpret KRS 141.120(10) as that statute applies to construction companies. Kentucky, however, adopted the Uniform Division of Income for Tax Purposes Act in 1966. Despite the sweeping changes that the Uniform Act effected in the income tax law of Kentucky, Regulation IC-16 is substantially the same regulation that was enacted in 1962. While the appellee argues that the regulation is based upon “historical experience,” the record below is silent as to just how this “experience” was gained. Indeed, considering that Kentucky law prior to 1966 taxed only income earned in Kentucky and that the Act taxes the portion of net income allocated to Kentucky-based business activities, we must question the historical experience on which the regulation is based. Certainly in light of the regulation, there has been no experience in taxing contractors under the formulary allocation method since 1966. While contemporaneous construction by an administrative body of a regulation which it has adopted is of great weight in adjudging the validity and meaning of such regulation, see J. B. Blanton v. Lowe, Ky., 415 S.W.2d 376 (1966), an administrative agency may not seek to amend, alter, enlarge, or limit terms of legislative enactment. Linkous v. Darch, Ky., 323 S.W.2d 850 (1959). We cannot sustain the validity of a regulation that contravenes the statute it seeks to interpret. Alcoholic Beverage Control Board v. Hunter, Ky., 331 S.W.2d 280 (1960). In order to determine whether the separate accounting procedure is valid in light of the express provisions of the statute and the intent of the legislature, we turn to the statute and to those decisions that have construed its meaning.

The crucial words in analyzing the significance of KRS 141.120(10) are found in the preamble, “[I]f the allocation and apportionment do not fairly represent the extent of the taxpayer’s business in this state . . The plain meaning of this phrase is that only when the three-factor formula distorts or unfairly represents income attributable to business activities in Kentucky will another method of computation be used by the Department in determining income attributable to Kentucky. This interpretation of the statute has been followed by courts in other jurisdictions which have also adopted the Uniform Act. However, no state has adopted the meaning of the statute as found in § 2(3) of Kentucky Regulation IC-16, which provides that only when the separate accounting method proves to unfairly represent business activity will the formulary apportionment method of allocation be used to compute income.

An example of such an interpretation is Donald M. Drake Co. v. Dept. of Revenue, Or., 263 Or. 26, 500 P.2d 1041 (1972), where a genera] construction contractor was required by the Oregon Department of Revenue to use the separate accounting method of allocation and therefore could not deduct losses incurred in its California operations. The Tax Court of Oregon found the business to be a unitary one, which was entitled to use the formulary apportionment allocation of income. The Supreme Court of Oregon upheld the Tax Court solely on the basis of the changes in the tax law brought by the Uniform Act. Drake, supra, at 1042. Of special significance in the present case is the court’s holding that formulary apportionment is now the generally accepted accounting method of allocating income under the Uniform Act. Further, the court held, that the relief provision was to be interpreted narrowly because to do otherwise would defeat the purposes of obtaining uniformity among the states by the adoption of the Uniform Act. Drake, supra, at 1044. The Oregon statute, which is identical to KRS 141.120(10), places the burden on the Revenue Department to prove the propriety of applying any allocation method other than the formulary apportionment method. Drake, supra, at 1044.

In the present case the Department of Revenue argues that Drake is distinguishable because the construction company was found to be a unitary business and because Oregon had no regulation analogous to Regulation IC-16. However, it is circular reasoning to attempt to distinguish Drake from the present case on the basis of Regulation IC-16 because it is that very regulation which is under review here. In regard to appellee’s attempt to distinguish the cases on the basis of the unitary-multiform distinction, the court in Drake nowhere mentions this factor in reaching its decision.

Similarly, in the case of Amoco Production Co. v. Armold, Kan., 213 Kan. 636, 518 P.2d 453 (1974), a company that sold, produced, and processed oil and gas was required by regulation to allocate income by the separate accounting method. This regulation required that once a method of allocation had been selected the burden of proving a change of method was upon the party seeking the change. In regard to Amoco, there had never been a specific Kansas administrative finding that the for-mulary apportionment method of allocation did not fairly allocate income according to business activity. While recognizing that the determination of proper methods of allocating income was a duty cast upon the state taxing agency, the court held that interpretation of the statute was a question of law and that the function of the court was to give the statute the effect intended by the legislature. Amoco, supra, 518 P.2d at 455. The court reasoned that the Director of the Department of Revenue had the burdens of making both negative findings concerning formulary apportionment as well as specifying reasons why it did not fairly represent business activity in the state. A mere finding that separate accounting fairly represented the extent of a taxpayer’s business activity was not enough. Amoco, supra, 518 P.2d at 458. In this light, the testimony of Mr. Geiser before the Kentucky Board of Tax Appeals is quite interesting, for he testified that only in cases where the Department of Revenue finds that separate accounting is inaccurate will the formulary apportionment method be used. Such a method of allocating income is clearly contrary to the plain meaning of the preamble of KRS 141.120(10) and to the mandate of uniformity in the Act. Thus, the court held that the basic purpose of the Uniform Act was to simplify the computation of state taxes, and that simplicity can come only through uniformity of interpretation. Cf. Moorman Manufacturing Co. v. G. D. Blair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978).

The court in Amoco also thought it significant that the taxing authorities were uncertain as to the changes brought by the Uniform Act. The Kansas board framed its issues in terms of.income rather than in terms of business activity. Mr. Geiser’s testimony before the Board in the present case shows a similar uncertainty, because he speaks of “reflections of income — ” rather than of “income that reflects business activity” or “the extent of business activity.”

Finally, the court in Amoco noted that a narrow, pro-uniformity construction of the relief provision may operate to provide a tax loophole. A taxpayer could file under the separate accounting method in states where it is to his advantage, i. e., where losses have occurred, while simultaneously urging the use of formulary apportionment or narrow construction in other states, i. e., where in-state gains would be diminished by out-of-state losses. However, we have no findings by the Department of Revenue on this point, and do not believe we must reach this issue.

The most recent decision on the issue of alternatives to formulary allocation is St. Johnsbury Trading Co. v. State, N.H., 385 A.2d 215 (1978). In that case, the Commissioner’s delegate modified the three-factor formula without first finding the formula did not clearly reflect business activity within the state. Citing the language of the preamble to the Uniform Act and the Amoco and Drake cases, the court held that “before an alternative method of apportionment can be utilized, the commissioner must first find that the statutory method of apportionment does not fairly represent the taxpayer’s business activity in the State” and that “the party seeking to use an alternative method of determination bears the burden of proof.” St. Johnsbury Trading Co., supra, at p. 217.

The decision of the Kentucky Board of Tax Appeals in the present case completely rejects the reasoning of the cases cited. The Board takes the position that the 1962 regulation takes precedence over the 1966 statute. The board stated that in its opinion:

[T]he Department’s evidence that Ruby’s Kentucky income is accurately shown belies any attempt by the taxpayer to demonstrate that Regulation IC — 16, which authorizes the use of separate accounting by construction companies, is an unreasonable regulation.

This process of finding separate accounting fair and then placing the burden of proof upon the taxpayer to show otherwise creates a direct conflict with the language and purpose of KRS 141.120(10). The Board held that this finding was accurate because Ruby is a multiform business corporation. While that fact may be significant in determining that a state has not transgressed the bounds of the Fourteenth Amendment of the United States Constitution insofar as procedural due process is concerned, see Moorman, supra, 98 S.Ct. at page 2345, and Boren, G. “Separate Accounting in California and Uniformity in Apportioning Corporate Income,” 18 UCLA L.Rev. 478, 490 (1970), the multiform/unitary distinction is simply foreign to the concept of the Uniform Act. Indeed, the statutory and constitutional requirements are irrelevant to each other except in rare instances, and such instances are not presented in this case. See Moorman, id. Thus, while the finding that a business is multiform may well be a significant factor in determining the propriety of the application of KRS 141.120(10), it cannot provide the conclusive basis for such a finding. Even the wide latitude granted the Commissioner of Revenue by KRS 13.-082 is not sufficient to support a finding based upon a distinction that is not mentioned in the Act.

The mandate of uniformity, to which Kentucky adheres, requires that the Commissioner affirmatively find that the formulary method of allocation fails to fairly represent business activity within this state before he makes use of the relief provision. The conclusive language of the regulation, especially § 2(3), obviates any such finding and is therefore contrary to the natural and reasonable meaning of the statute. Cf. Mertens Law of Federal Income Taxation § 3.21 and the cases collected at footnotes 77, 81-83 and 85 and especially the case of Scofield v. Lewis, 251 F.2d 128 (5th Cir. 1958), which held that a regulation which was valid when promulgated became invalid upon the enactment of a statute in conflict with the regulation. We hold that Regulation IC-16 has been shown to be invalid in that it is inconsistent with the statute, is clearly unreasonable, and is inappropriate to carry out the ends specified in the statute which it is intended to implement. See Hohnke v. Commonwealth, Ky., 451 S.W.2d 162, 166 (1970).

The decision of the Franklin Circuit Court is reversed, and the case remanded to that court with instructions to remand to the Kentucky Board of Tax Appeals. Upon remand, the Board of Tax Appeals must consider whether the formulary allocation method as set out in KRS 141.010(9) fails to fairly represent the business activities of Ruby in Kentucky.

All concur.

      . A multiform business is to be distinguished from one that is unitary. The test is whether a business is unitary is whether its various parts are interdependent and of mutual benefit so as to form one business unit rather than separate business entities, and not whether the operating experience of the parts is the same in all places. It has also been said that the term “unitary business” relates to a concern which carries on one kind of business, the component parts of which are too closely connected and necessary to each other to justify division or separate consideration as independent units. By contrast, a dual or multiform business must show units of substantial separateness and completeness, such as might be maintained as an independent business — however convenient and profitable it may be to operate them conjointly — and capable of producing profit themselves. 71 Am.Jur.2d State and Local Taxation § 577 at p. 842.

      . Appellee urges that the question of the use of the separate accounting method, not questioned below, is not properly before this Court. However, a “new issue” in a tax case should be considered on appeal if it will not result in more or less tax deficiency and does not require the presentation of new evidence. See, Douglas H. Damm T.C. Memo, 1977-194. In the present case a decision will not affect the amount of tax owed because appellant will not receive a refund. Administrative decisions may always be reviewed to determine whether they are in accordance with the law. See, Hankins Appliance Co. v. Goebel, Ky., 284 S.W.2d 327 (1956), and KRS 131.370(3)(c).

      . KRS 141.010(12) provides, in part that, “ ‘gross income,’ in the case of corporations, means ‘gross income’ as defined in § 61 of the internal revenue code . . .

      . KRS 141.010(13) provides, in part, that “ ‘net income,’ in the case of corporations, means ‘gross income’ as defined in subsection (12) of this section minus all the deductions from gross income allowed corporations by Chapter I of the Internal Revenue Code . . .

      . KRS 141.010(14)(b) provides, in part, that “ ‘taxable net income,’ in the case of corporations having income taxable both within and without this state, means ‘net income’ as defined in subsection (13) of this section and as allocated and apportioned under KRS 141.120

      . The sections of IC-16 pertinent to this litigation provide as follows: “Section 2. Construction Companies. (1) Construction companies shall determine net income earned within Kentucky by separate accounting, except as provided in this section. In any case where a construction company has elected .to report on the completed contract basis, the use of separate accounting to determine Kentucky net income is mandatory. Construction companies will not, however, be relieved of the responsibility of submitting to the department an application for separate accounting prior to filing an income tax return for the first period for which authorization is desired. . . .
      (3) In any case where the activities of a construction company are such that separate accounting is not practical, the department may prescribe a method or formula to equitably determine the net income earned within Kentucky.”

      . Mr. Gerald Geiser, Assistant Director of the Income Tax Division of the Department, testified before the Board that “[T]he current regulation has been revised and amended between 1962 and the year under audit but it is substantially the opinion of the Department that it is the same regulation.”

      . See KRS 8.040(l)(b) and (c).


source: Caselaw Access Project

author: HOWARD, Judge.

license: Public Domain

text:
    CIVIL SERVICE BOARD, CITY OF NEWPORT, Appellant, v. Byron G. FEHLER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1978.
    As Modified on Denial of Rehearing March 16, 1979.

      Mott V. Plummer, Jan Paul Koch, Asst. City Sol., Newport, for appellant.
    A. J. Jolly, Newport, for appellee.
    Before COOPER, GANT and HOWARD, JJ.
   HOWARD, Judge.

This is an appeal from a judgment entered in the Campbell Circuit Court ordering the reinstatement of plaintiff-appellee, Byron G. Fehler (hereinafter referred to as Fehler), who had been dismissed from his position as Superintendent of the Department of Public Works of the City of Newport for inefficiency and incompetency by defendant-appellant, the Civil Service Board of the City of Newport (hereinafter referred to as the Board).

On this appeal, the Board states that the trial court erred: 1) In filing Supplemental Findings of Fact and Conclusions of Law more than ten (10) days after final judgment was entered; 2) In considering inadmissible and immaterial evidence; 3) In using an 'incorrect standard of review to overturn the decision of the Board; 4) In finding that the evidence did not support the Board’s conclusions that Fehler was guilty of incompetency and inefficiency; and 5) In failing to mitigate the damages Fehler was awarded for wrongful dismissal.

The charges of inefficiency and incompetency were brought as the result of Fehler’s actions during a snow emergency in February of 1977. Fehler was notified at 12:05 A.M. on February 20, 1977, that a snow emergency had been declared by the City of Newport. The snow emergency crew was not assembled until 4:00 or 5:00 that morning. The Board states that Fehler failed or refused to get a crew out earlier, thereby demonstrating his incompetency and inefficiency.

Charges were preferred against Fehler pursuant to KRS 90.360 and the City of Newport’s local ordinance. A hearing was held before the Board at which Fehler and his attorney were present. Both sides presented proof after which the Board concluded that Fehler was guilty of the charges and he was dismissed. Fehler does not contend that any of his due process rights were violated in the administrative proceeding held by the Board.

A brief summary of the testimony presented at the hearing is warranted. Emanuel Lane, one of the two foremen working under Fehler, explained the procedure in calling out a snow emergency crew and testified that it normally takes 30 to 45 minutes to call out a crew. He also stated that sometimes it may take an hour and a half. Lane also testified that the policy had been for one the foremen to call out the crew, rather than the Superintendent.

Edward Craig, the other foreman (now Superintendent of the Department of Public Works), testified that he received a call from the police concerning the icy streets around 12:00 A.M. and told the police to call Fehler. He then received a call around 3:00 A.M. from the Mayor, John Peluso, asking him why a crew wasn’t out yet. Craig testified that he then called the police and was told Fehler had been notified of the emergency. Craig went to the City Garage, arriving there at about 4:45 A.M. At that time, Fehler and Jimmy McCulley, a worker, were at the garage. The members of the crew were also arriving. Craig testified it takes a half hour to assemble a crew. He also testified that it was the foremen who usually assembled the crew, but that Fehler was on duty that night.

Certain other people also testified, including the Mayor and the City Manager, Ralph Mussman. Mussman testified that Fehler told the Commission, at a meeting held at a later date, that it was not his responsibility to get the crew out.

Fehler then testified. He stated that since one of the foremen usually calls out the crew, he was unfamiliar with the procedure to use. He then testified as to his unsuccessful efforts to contact certain people by telephone after receiving the call from the police, including calls to Craig. Fehler then stated he had trouble starting his truck and that he was unable to start it until about 3:00 A.M. He then testified that sometime between 3:00 and 4:00 A.M. he called out the crew with the help of Jimmy McCulley. Fehler testified also that he was not responsible for calling a crew out.

Fehler appealed to the circuit court. The proceedings which occurred in that court will be discussed as they relate to the errors raised by the Board on this appeal.

According to the record, the proceeding in the trial court was heard de novo upon joint motion of the parties. The trial court, in its Findings of Fact, Conclusions of Law and Judgment (filed in court on January 31, 1978), stated that it considered the record made before the Board, certain affidavits (which the Board states are irrelevant and immaterial) and the briefs filed by both parties, in making its decision. The trial court stated that the findings by the Board that Fehler was guilty of inefficiency and incompetency were not supported by substantial evidence. Fehler was ordered reinstated. A trial on damages was also ordered to be held. Final judgment was entered on March 24, 1978, adjudging Fehler to be entitled to damages in the amount of $12,801.00 for wrongful dismissal.

The Board filed its notice of appeal on March 24, 1978, the same day final judgment was entered. The trial court, on its own initiative, entered Supplemental Findings of Fact and Conclusions of Law on April 14, 1978. The Board’s motion to strike the Supplemental Findings of Fact and Conclusions of Law was overruled by the trial court.

The trial court has filed a request before this Court for leave to correct the record, so that these Supplemental Findings of Fact and Conclusions of Law be considered as relating back to and incorporated into the judgment entered on March 24, 1978. The trial court states that, under CR 60.01, these supplemental findings constitute an oversight or omission.

The Board has also filed before this Court a motion to strike the trial court’s Supplemental Findings of Fact and Conclusions of Law and a motion to overrule the trial court’s request for leave to correct the record. This Court, by order, has passed these two motions and the trial court’s request to this panel for its consideration on the direct appeal.

Under CR 52.02, the court may amend its findings or made additional findings not later than ten (10) days after entry of judgment. In the instant case, the ten day limit had passed. And CR 60.01 provides for relief from a judgment or order as to clerical mistakes because of oversight or omission.

We believe that some six pages of twenty supplemental findings of fact and conclusions of law do not come under the heading of clerical mistakes. Although we appreciate the trial court’s attempt to clarify the judgment and its reasoning therefor, we are denying the trial court’s request for leave to file the supplemental findings. The Board’s motion to strike the supplemental findings and the Board’s motion to overrule the trial court’s request for leave to file the supplemental findings are granted.

Fehler submitted the affidavits of Robert Sidell and Robert Shomaker, along with his own, to the trial court. These affidavits were admitted. The substance of Sidell’s affidavit, he being a former City Manager, was that the foremen, not the Superintendent, assembled emergency work crews and that Sidell found Fehler to be a competent and efficient Superintendent. The affidavit of Shomaker, a former City Clerk, contained similar statements.

The affidavit of Fehler contained certain allegations that John Peluso, while a member of the City Council, asked Fehler to pave private property belonging to Peluso, with City equipment. Fehler also averred that Peluso, after assuming the office of Mayor, attempted unsuccessfully through court action to abolish the position of Superintendent of Public Works.

The Board states that the admission of these affidavits was waived at the hearing and they were therefore inadmissible in the trial court. To support this contention, the Board cites KRS 90.360(3), which provides that: “Upon the hearing the charges shall be considered traversed and put in issue, and the trial shall be limited to the issues presented by the written charges.” The Board also states that the language of KRS 90.370(2), which provides in part that: “ . . . Upon the transcript being filed the ease shall be docketed in the circuit court and tried as an original action,” precludes the trial court from considering any testimony other than the transcript of hearing.

As an aside, we would point out that the Board violated the provisions of KRS 90.360(3) by introducing evidence of a garbage problem, this problem not being contained in the written charges. The hearing was, therefore not confined only to written charges.

Both parties filed motions for summary judgment in the trial court. The trial court entered an order submitting the motions and allowing a certain amount for both parties to file “affidavits or related pleadings” and briefs. Fehler filed the three affidavits. The Board filed certain police records.

CR 56 provides for the filing of affidavits in support of motions for summary judgment. Fehler⅛ defense to the charges was that it was not his responsibility to call out emergency crews. Although the Board argues that it is irrelevant what procedure former employees used, we cannot agree. One is employed in government positions with the understanding that there are certain procedures which were followed before and will continue to be followed. To change job responsibilities and not notify an employee that his responsibilities have been changed, until after he has been charged with inefficiency in performance of these responsibilities, seems unfair.

We also believe that the provisions of KRS 90.370(2) provide for the means of commencing the action in the circuit court, i. e. filing the transcript of hearing. The first sentence in KRS 90.370(2) provides for the procedure to be used by the dismissed employee to obtain a copy of the transcript to be filed in the circuit court. KRS 90.-370(3) provides for the procedure to be used if the clerk of the Civil Service Commission fails to provide the transcript.

The affidavits were admissible and were properly considered by the trial court.

We will next discuss two related errors raised by the Board, namely that the trial court used the wrong standard of review of the Board’s decision and that the trial court erred in holding that the evidence presented did not support the Board’s findings that Fehler was incompetent and inefficient.

In City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955), the standard of review to be used by the circuit court, subsequent to a de novo hearing, is stated as being:

. not whether the administrative decision finds reasonable support in substantial evidence, but whether or not the circuit court, hearing witnesses anew, acting as a fact-finding body, from a consideration of all the evidence heard in the circuit court, is of the opinion that the evidence heard in th.e circuit court preponderates against the decision made by the Commission.

See also Kilburn v. Colwell, Ky., 396 S.W.2d 803 (1965); and City of Richmond v. Howell, Ky., 448 S.W.2d 662 (1969).

We would point out to the Board that the cases cited by it, concerning the proper standard of review, would seem to allow the circuit court to hear additional evidence and not be confined to the transcript of hearing.

Fehler testified that it was not his responsibility to call the emergency crew out and that is the reason he was unfamiliar with the procedure. The affidavits filed in the circuit court substantiate Fehler’s testimony. The testimony of the two foremen, Lane and Craig, is likewise similar in that they both testified that one of the foremen usually calls out the crew. There seems to be no question that Fehler got the crew out, albeit in 4 or 5 hours. During the entire time he was attempting to do something concerning the situation.

The trial court held that there was no evidence in the record that Fehler was incompetent or inefficient as charged, but, to the contrary, the record established him to be a competent and efficient Superintendent. (Findings of Fact, Conclusions of Law and' Judgment entered January 31, 1978). This is not phrased in “preponderance” wording. However, by finding that the evidence established a conclusion contrary to that reached by the Board, we believe that the trial court implicitly found that the evidence preponderated against the Board’s conclusions.

We likewise believe that the evidence presented preponderated against the findings made by the Board that Fehler was incompetent and inefficient. Fehler was correctly ordered reinstated.

The final issue raised by the Board concerns Fehler’s failure to mitigate his damages. Fehler is 62 years old and earned $1,867.00 from part-time employment. This sum was deducted from his total lost wages. Fehler also testified as to other jobs he had applied for. The trial court found that Fehler had made a reasonable effort to mitigate his damages. After reviewing the testimony of the hearing held on the issue of damages, we agree with the trial court.

The judgment of the trial court is affirmed.

All concur.


author: PARK, Judge.

text:
    Jerome JACKSON, Appellant, v. COWDEN MANUFACTURING COMPANY, Liberty Mutual Insurance Company, and Workmen’s Compensation Board of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 22, 1978.
    Discretionary Review Denied April 3, 1979.

      Alvin B. Trigg, Lexington, for appellant.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, for appellee (Cowden Mfg. and Liberty Mut. Ins. Co.).
    Before HAYES, PARK and REYNOLDS, JJ.
   PARK, Judge.

Jerome Jackson suffered an eye injury while playing basketball on an industrial league team composed of employees of Cowden Manufacturing Company. Jackson appeals from a judgment of the Fayette Circuit Court reversing an award of the Workmen’s Compensation Board. In a well-reasoned opinion, the circuit court held that Jackson’s injury was not work-related.

I

Jackson was an employee of Cowden on December 8, 1975, when he was injured playing basketball on a company team in an industrial league game sponsored by the Lexington-Fayette County Parks and Recreation Department. The industrial league games were played at the Winburn Junior High School gymnasium after working hours. The parks and recreation department sponsored two leagues, the industrial league in which Jackson played and a league for independent teams. To participate in the industrial league, a team had to be “sponsored” by a local industry or business. Membership on a team was limited to the employees of the particular company sponsoring that team. The personnel director of each company was required to certify to the department that each team player was, in fact, an employee of the company. There was also an annual league entry fee of $115.00 which had to be paid by or on behalf of each team. A team from Cowden had participated in the league for several years, and Cowden customarily paid the team’s annual entry fee.

In addition to paying the team’s entry fee, Cowden had provided uniforms for the team in a previous year. Jackson testified that the uniforms provided by the company were too hot, and that each team member purchased his own uniform for the 1975-76 season. However, Cowden did reimburse each team member for the cost of the uniform after withdrawing the team from competition following Jackson’s injury. Although earlier uniforms had borne Cow-den’s name or initials, the evidence is undisputed that Cowden’s name did not appear on any of the new uniforms at the time of Jackson’s injury in the second game of the season on December 8, 1975. All other equipment was furnished either by the team members or by the league. The team members rented practice facilities at the Yates Elementary School gymnasium at their own expense.

There is no evidence in the record that Cowden ever used any form of direct or indirect compulsion to insure employee participation in the league. The team was organized each year by a group of interested employees who would “sign up” other employees at work to play on the team. Cowden did not employ anyone for the purpose of playing on the team. In fact, there is no evidence that Cowden urged its regular employees to join the team. Employees received no compensation for playing, and Cowden did not provide awards or extend any special privileges to team members. Indeed, Cowden took little active interest in the team.

II

Jackson cannot recover compensation benefits for his basketball injury unless that injury was work-related within the meaning of KRS 342.620(1). “Work-related” and “arising out of and in the course of employment” are synonymous terms. Seventh Street Road Tobacco Warehouse v. Stillwell, Ky., 550 S.W.2d 469, 470 (1976). The difficult problem is to determine when an employee’s recreational activities fall within the course of his employment.

In discussing this issue, Larson states the following rule:

Recreational or social activities are within the course of employment when
(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the service of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

A. Larson, Workmen’s Compensation Law § 22.00 (1978). We find this rule to be helpful and in harmony with the general principles of Kentucky workmen’s compensation law.

According to Larson, the first inquiry must be whether the injury occurred on the employer’s premises and during working hours. The presence of either or both of these factors will frequently be a sufficient basis for finding that the recreational activity was work-related. As stated by Larson:

When seeking for a link by which to connect an activity with the employment, one has gone a long way as soon as one has placed the activity physically in contact with the employment environment, and even further when one has associated the time of the activity somehow with the employment. This done, the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might. Conversely, if the recreational activity takes place on some distant vacant lot, several hours after the day’s work has ceased, some independently convincing association with the employment must be built up to overcome the initial presumption of disassociation with the employment established by the time and place factors.

Id. § 22.11, p. 5-72. When the injury-causing activity occurs on the employer’s premises during working hours, Kentucky courts have deemed the injury work-related even though the activity was in no way connected with the employee’s work-duties and was strictly for personal purposes. In W. R. Grace & Co. v. Payne, Ky., 501 S.W.2d 252 (1973), the court affirmed an award of compensation benefits to an employee who was injured at work while using a power saw to make a birdhouse for his own personal purpose. The court emphasized that the injury-causing activity occurred on the employer’s premises during work hours, was a common practice in which the employer acquiesced, and filled a slack time period. See also Ratliff v. Epling, Ky., 401 S.W.2d 43 (1966), involving the “operating premises exception” to the going and coming rule.

Ill

When the injury occurs off the operating premises and outside working hours, no single factor should be given conclusive weight in determining whether the injury was work-related. The circumstances of each particular case must be examined to determine what facts exist to connect the injury to the employment. The employer’s liability to provide compensation for the injury must be based upon the quantum of aggregate facts rather than the existence or nonexistence of any particular factor.

There are no Kentucky compensation cases involving recreational activities. Nevertheless, there is one important Kentucky decision which helps throw light on the problem. In Spurgeon v. Blue Diamond Coal Co., Ky., 469 S.W.2d 550 (1971), the court considered an injury which occurred off premises after regular working hours. Spurgeon was a mine foreman whose duties included supervising personnel and promoting mine safety. His employer, Blue Diamond Coal Co., was a member of a coal operators association which sponsored a mining institute. The operation of the institute was funded by contributions from the various members of the coal operators association. In addition to social activities, various programs on mine safety were presented at the monthly meetings of the institute. Blue Diamond encouraged but did not require its management employees to attend the institute meetings. Blue Diamond paid for the meals of its employees at the institute meetings, but it did not pay any compensation to them for the time they spent at the meetings. Spurgeon was injured returning from an institute meeting to his home. In the Spurgeon case, the court considered the critical issue to be whether the employee was injured while performing some service for his employer. The court held that this issue required the board to make findings of fact respecting (1) the extent to which Spurgeon’s attendance at the institute meetings was compulsory or encouraged by Blue Diamond, and (2) the extent to which Blue Diamond derived specific benefit from the attendance of its employees at the institute meetings.

If Blue Diamond had compelled Spurgeon to attend the institute meetings as a part of his employment, the injury would have been compensable because his employer had exposed Spurgeon to the risk of injury while attending the mining institute. In considering whether Spurgeon was required to attend the mining institute, the court recognized his subordinate position. Quoting from the opinion in Dearing v. Union Free School District No. 1, 272 App.Div. 167, 70 N.Y.S.2d 418 (1947), the court in Spurgeon stated:

In determining whether an employee was engaged in her employment when taking part in some activity that was not a part of her direct duties, it is frequently necessary to ascertain whether the employee was under any form of compulsion on the part of the employer. In view of the employee’s subordinate position, compulsion may be direct or indirect, and may range in degree from a mere suggestion to a direct order. It may even arise from encouragement only. Perhaps such nuances would not generally be considered as being within the field of compulsion in the ordinary sense of the term, but allowance must be made for them in the relationship between employer and employee, otherwise the employer has directive authority without a corresponding responsibility. And if the slightest degree of compulsion is practiced by employer then it must be presumed that the activity engaged in is incidental to the interests of the employer and therefore a part of the employee’s work.

469 S.W.2d at 554. Even though a recreational activity is not an integral part of an employee’s job, the employer may expand the scope of employment to include the recreational activity by expressly or impliedly requiring the employee to participate. Larson, supra, § 22.22.

In addition to the question of compulsion, the court in the Spurgeon case held that the board was required to determine the degree of benefit inuring to Blue Diamond by reason of the information and training received by its employees through the meetings of the institute. The court quoted Larson for the proposition that attendance at training programs and institutes may be deemed work-connected by a showing of “specific employer benefit” as distinguished from a “vague and general benefit” 469 S.W.2d at 553; see also Larson, supra, § 22.30.

In its opinion, the board made no reference to the Spurgeon opinion but instead emphasized Larson’s discussion of injuries on company teams. In a passage cited with approval by the board, Larson states:

The law that has developed on company athletic teams continues the pattern observed in other recreation cases: numerous cases both of awards and of denials, frequently from the same states, resulting usually from the different “mix” in the fact situation. Most of the same variables occur: on or off the premises and in or out of working hours; varying shades of employer initiative; differences in amount of employer contribution of money or equipment; differing quantities and types of employer benefit.

Larson, supra, § 22.24, pgs. 5-101 and 5-106. Larson’s discussion of company teams in section 22.24 is not a departure from his general rule for recreational activities in section 22.00. Likewise, there is no conflict between this passage and the court’s approach in the Spurgeon case. All of the factors mentioned are relevant, but none is entitled to exclusive consideration. In this light, we will consider the findings of fact by the board.

IV

The board recognized that Jackson’s injury occurred off Cowden’s premises and outside working hours. The board made no finding that Cowden expressly or impliedly required Jackson to participate on the basketball team. Indeed, the record is devoid of any evidence of direct or indirect employer compulsion. Jackson testified that a group of employees recruited other employees as team members by passing around a sign-up sheet.

In its opinion and award, the board referred to the fact that Cowden paid the annual league entry fee of $115 and had paid for uniforms in past years. The board also noted that, on occasion, Cowden permitted the team to meet in the company cafeteria. Balanced against this small amount of employer support is the fact that the employee members of the team made equal or greater contributions. The team members rented, at their own expense, the practice gymnasium at the Yates Elementary School. They furnished all of the other athletic equipment used by the team other than the uniform shirt and pants. In fact, the employees had purchased their own new uniforms although that cost was reimbursed by Cowden after Jackson’s injury when the Cowden team was withdrawn from league participation. Cowden’s meager support for the team might be of some use in building a cumulative case that Jackson’s injury was work-related, but standing alone it cannot provide the necessary connection between injury and employment. Larson, supra, § 22.24, p. 5-109.

With respect to employer benefit, the board considered two factors: (1) advertising and (2) increased employee morale. In its findings, the board noted that the team uniforms in prior years had borne Cowden’s name. Although recognizing that Cowden’s name had not been placed on the new uniforms at the time of Jackson’s injury, the board further found that Cowden’s name would have' been placed on the uniforms later in the season. The only other mention of Cowden’s name in connection with the team was on the game schedule posted at the junior high school where the games were played and occasional publication of league standings in the local newspaper. Considering the limited public interest in industrial basketball league play, we conclude that such publicity conferred no significant benefit to Cowden. Larson, supra § 22.24, pg. 5-110. This casecdoes not involve an employer who sponsored a company team or other recreational activity for the purpose of promoting sales or improving its public image.

In finding benefit to Cowden, the board emphasized employee morale rather than advertising. The board’s opinion states:

Although cases from other jurisdictions have found that the mere appearance of an employer’s name upon the uniforms of the players is not sufficient advertising to bring the recreational activity within the definition of a work-related event, we believe that logically and practically, the Defendant derives benefits in addition to such exposure and advertising. It can hardly be denied by Defendant that such recreational activity is good for the morale of the employees, promotes company pride and loyalty and constitutes an incentive or fringe benefit to many employees.

This type of intangible benefit does not meet the requirement that the benefit to the employer be specific or substantial. Although some courts have found sufficient employer benefit from increased employee morale and good will, a majority of the courts have held that benefit to an employer through increased employee morale and efficiency is not alone enough to bring a recreational activity within the course of employment. Larson, supra § 22.30, pg. 5-117. As Larson points out, all recreational activity tends to improve employee efficiency and morale whether work-related or not. Such “vague and general benefit” is not sufficient in itself to bring a recreational activity within the course and scope of employment. See Spurgeon v. Blue Diamond Coal Company, supra, 469 S.W.2d at 553.

The board advanced an additional factor which it characterized as “perhaps determinative.” In finding that Jackson’s injury was work-related, the board emphasized that Cowden had complete control over its employees’ participation in the industrial basketball league. The Cowden team could not participate in league play without specific authorization from the company. The personnel director was required to inspect the team roster for the purpose of verifying that each player was a Cowden employee. In addition, Cowden withdrew its authorization for the team to participate in the industrial league after Jackson’s injury.

In its opinion, the board stated:

The Defendant’s power to terminate its team’s participation in the league completely destroys Defendant’s contention that the Plaintiff, at the time of the injury was involved in a sort of free-lance activity independent of any company participation, sponsorship, or control.

The circuit court rejected this approach to the question of control. In its opinion, the circuit court stated:

We would interpret the actual control or the right to control as being the employer’s right to tell the employees when and where they were to play, when and where they were to practice, who was to play, and also have a part in formulating the rules and regulations under which the activity would be conducted. In this case the employer exercised none of his control and in fact the league was under the direct supervision and control of the Parks and Recreation Department. They made the rules and enforced the rules under which the team played.

We agree with the board that employer control is a factor in determining whether a recreational activity is work-related. If the employer exercises sufficient control, the time and space limits of the employment may be expanded to encompass the basketball court. However, we agree with the circuit court that no such control was present in this case. Cowden never attempted to exercise any control over the details of the operation of the basketball team. At most, Cowden granted a group of its employees the privilege of playing basketball under the name of Cowden. When the question of Cowden’s liability arose following Jackson’s injury, Cowden simply withdrew that privilege from the team.

When all of the evidence is considered, the fact remains that Jackson was injured while engaged in personal recreation at a time and place remote from his employment. He was not performing any service for Cowden. See Spurgeon v. Blue Diamond Coal Company, supra, 469 S.W.2d at 552. Jackson was not on the business of Cowden at the time and place of his injury. Cf. Oppenheimer v. Smith, Ky., 512 S.W.2d 510, 512 (1974). Jackson was furthering his own interests rather than those of Cowden by playing in the basketball game in which he was injured. See Wilson v. Wizor, Ky., 544 S.W.2d 231 (1976), and Bell v. Lindsey Wilson College, Ky., 490 S.W.2d 145 (1972). There is no evidence that Cowden directly or indirectly led Jackson to believe that playing industrial league basketball was required as an incident to his employment. See Lycoming Shoe Co. v. Woods, Ky., 472 S.W.2d 257, 258 (1971). Under these circumstances, we agree with a statement of the Court of Appeals of New York in a similar case:

Personal activities of employees, unrelated to the employment, remote from the place of work and its risk, not compelled or controlled by the employer, yielding it neither advantage nor benefit, are not within the compass of the Workmen’s Compensation Law. Nor is it of any operative consequence that the employer acquiesced in, or contributed some financial aid to, such activities. The slight support thus given by the employer, without attendant advertising or consequent business advantage, should be accepted for what it really was, a gratuitous contribution to its employees’ social and recreational life. . . . In a case such as the one before us, the granting of a compensation award would not only do violence to the letter of the statute but would offend against its spirit, but penalizing employers who, without prospect of profit or benefit, co-operate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises.

Wilson v. General Motors Corp., 298 N.Y. 468, 84 N.E.2d 781, 784 (1949).

The facts in this case are undisputed. Whether Jackson’s injury was work-related is essentially a question of law. N. H. Stone Co. v. Harris, Ky., 531 S.W.2d 513, 515 (1975); Bell v. Lindsey Wiison College, supra, 490 S.W.2d at 146. We conclude that the circuit court was correct in deciding that, as a matter of law, Jackson’s basketball injury was not work-related. The facts relied on by the board are not sufficient to connect Jackson’s injury to his employment by Cowden.

The judgment of the circuit court is affirmed.

All concur.


author: HAYES, Judge. WILHOIT, Judge,

text:
    John Bruce INMAN, D.M.D., Appellant, v. Sue Osborne INMAN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1979.

      Dennis M. Clare, Nold, Mosley, Clare, Hubbard & Rogers, Louisville, for appellant, John Bruce Inman, D.M.D.
    Patricia A. Lewis, Lewis, Bland & Preston, Elizabethtown, for appellee, Sue Osborne Inman.
    Before HAYES, REYNOLDS and WIL-HOIT, JJ.
   HAYES, Judge.

The marriage of John and Sue Inman was dissolved after seventeen years and three children. During the course of the marriage the Inmans had come to possess an expensive home and several vehicles, but these items were so heavily encumbered that the couple’s net worth was zero, give or take a few hundred dollars. John Inman is a dentist; Sue is a teacher. Mrs. Inman has worked steadily throughout most of the marriage. John had not begun dental school at the time of the marriage. Both John and Sue contributed financially to John’s ability to go to dental school. John has worked steadily as a dentist since becoming licensed to do so, at first in the Army, and in recent years in private practice. Prior to the dissolution, Dr. Inman had begun to learn the specialty of orthodontics, and may reasonably be expected to expand his practice in that direction. Immediately prior to dissolution of their marriage, John and Sue had a lifestyle which apparently reflected prosperity, but in fact they were on the brink of bankruptcy.

Although John’s gross income from his dental practice had been in the neighborhood of $90,000 for the years 1975-77, he had netted well under $40,000 for each of the years 1975 and 1976. In 1977, according to information submitted by Dr. Inman and accepted by the circuit court, his net income had plummeted to less than $18,000. (There was convincing expert testimony to the effect that with reasonable business practices, a dentist in Dr. Inman’s position should net 45 or 50 percent of his gross.)

The Meade Circuit Court found that Dr. Inman’s license to practice dentistry is marital property, but did not place a dollar value on the license. Apparently proceeding under the theory that Dr. Inman’s future earning capacity is marital property, the court allocated to Mrs. Inman most of the valuable marital assets, including the marital domicile. (This court learned during oral arguments that because of foreclosure by the home’s mortgagees resulting from Dr. Inman’s default on mortgage payments, the house has been lost. The circuit court, knowing that foreclosure might be imminent, provided that in that event, Dr. Inman was to pay Mrs. Inman $60,000 over the next ten years.)

The principal question arising on appeal is whether the trial court acted improperly in giving Sue most of the benefits of property ownership, i. e. possession, while giving John most of the concomitant burdens, i. e. responsibility for most of the indebtedness. Since the distribution was apparently based in part on the classification of Dr. Inman’s license to practice dentistry as marital property, it is first necessary to consider the propriety of that finding. As the briefs indicate, this is an issue of first impression in Kentucky and there is no overwhelming trend among other jurisdictions. Certainly a license to practice a profession lacks many attributes of most sorts of property — it is not, for example, in any way transferrable. The other major difficulty with treating a professional license as marital property is that its value is extremely difficult to quantify. Further, once a dollar value is placed on official permission to practice a profession, a court is still faced with the very difficult job of deciding the portion of the capability which is owing to the other spouse’s efforts.

This court has strong reservations about placing a professional license in the category of marital property. Doing so can only create another field for battle in the already complex and delicate area of division of marital property. In spite of these reservations, however, we feel that there are certain instances in which treating a professional license as marital property is the only way in which a court can achieve an equitable result.

To flatly refuse to find any sort of protected property interest would work the grossest inequity in certain instances. The apparently rather common situation in which one spouse puts the other through graduate or professional school, followed closely by a dissolution upon the completion of the schooling, allows perhaps the clearest exposition of the problems involved. In those instances it is usually the case that little or no marital property has been accumulated. In such instances there is generally no entitlement to maintenance as each spouse is self-supporting. Thus the spouse who has devoted much of the product of several years of labor to an “investment” in future family prosperity is barred from any return on his or her investment. The other spouse has received a windfall of contribution to his or her increased earning capacity. Had he not had a spouse’s support, he might well have been compelled to prolong or delay his professional education while earning enough to support himself and meet education costs, or to go deeply into debt.

On the other hand, different considerations may apply when a sizeable marital estate is built up over the course of a long marriage. In such instances, it might be inequitable to award to a spouse who contributed to the other spouse’s earning capacity years prior a “property” interest in the other’s professional degree in addition to considerable property which is in substantial part the fruit of the increased earning capacity. Such a division of property could amount to awarding an interest far out of proportion to any reasonable apportionment of interest in the degree.

The clearest exposition of the two leading schools of thought on whether sufficient indicia of “property” can be attributed to an educational degree to make it partitiona-ble under the Uniform Dissolution of Marriage Act may be found in the recent Colorado case, In re Marriage of Graham, Colo., 574 P.2d 75 (1978), heard by the state Supreme Court en banc.

In Graham, the wife had contributed 70% of the family income, in addition to most of the household work, while her husband acquired an MBA degree. There was no accumulated property (under the conventional definition of property at any rate). However, the trial court heard expert testimony that the degree conferred upon Mr. Graham an increase in his earning capacity in excess of $80,000.

Justice Lee’s majority opinion, concurred in by three other justices, held that an educational degree is not property in that:

it does not have an exchange value on an open market. It is personal to the holder. It terminates on the death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term.

Justice Carrigan’s dissent, in which two other justices joined, argues powerfully that the husband’s, increased earning power, represented by his degree, should indeed be counted as marital property where there is no accumulated marital property and the spouse who subsidized the degree is ineligible for maintenance. Justice Carrigan argues that, “ . . . equity demands that the courts seek extraordinary remedies to prevent extraordinary injustice.” He notes that if there had been marital property or if Anne Graham had been eligible for maintenance, i. e. had been non-self-supporting, that there would have been no problem in achieving an equitable solution.

As matters stood, however, Anne Graham would walk away empty-handed from a marriage to which she had made substantial contributions. Her former husband would leave with a greatly increased earning capacity, due in substantial part to her efforts.

In addition to its reliance on the ability of courts of equity to fashion extraordinary solutions, the Graham dissent notes that classification of earning capacity as property is not, in other contexts, considered so farfetched. It notes that one who tortiously destroys or reduces another’s earning capacity must make monetary compensation for that loss of capacity, that had Anne Graham been widowed by the tortious act of a third party, she would have been entitled to compensation based on her husband’s projected future earning capacity.

We would further add that the United States Supreme Court had no difficulty in finding, for Fourteenth Amendment purposes, property interest in such personal and nontransferrable terms as tenured federal employment, Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed. 15 (1974), and, to a limited degree, to government largesse, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) n.8.

We mention these last cases not to suggest that a constitutional test for whether an item is property is here applicable, but only to demonstrate that a court, in defining the statutory concept, (marital) “property,” is in distinguished company when it refuses to be hamstrung by narrow definitions of “property.”

Proper guidelines for determining whether a marital property classification is proper in a particular instance might include whether there is more tangible marital property whose division would work equity, and the extent to which there was reciprocal aid. Spouse A’s interest in spouse B’s earning capacity might be partially or totally extinguished if spouse B had returned the favor and helped to put spouse A in the position of having a salea-ble skill. Another important factor to consider might be the extent to which the nonlicenseholder has already or otherwise benefited financially from his or her spouse’s earning capacity, or is eligible for maintenance. These guidelines are meant to be illustrative, not exhaustive.

The appellant maintains that in any event it is improper to allocate to the appel-lee both an interest in his professional earning capacity and an interest in his practice, in that such allocation is double repayment for the same obligation. We would be inclined to agree, except that some evidence suggests that the establishment and building of Dr. Inman’s practice might to some degree be the result of team effort over and above the team effort expended in the acquisition of his degree. We ask the circuit court, on remand, to make specific findings as to whether and to what extent Sue In-man has an interest in John Inman’s practice, as distinguished from increased earning capacity conferred by his license to practice dentistry.

While we think it reasonable and sometimes necessary for courts to have the power to find a property interest for the holder’s spouse in a professional degree, we wish to place very strict limitations on apportionment of property pursuant to such findings. In most cases, we feel that the best measure of a spouse’s interest in such a degree should be measured by his or her monetary investment in the degree, but not equivalent to recovery in quasi-contract to prevent unjust enrichment.

Thus the amount spent for direct support and school expenses during the period of education, plus reasonable interest and adjustments for inflation, should be apportioned to the spouse who provided support when, as in the case of the Inmans’, there is little or no marital property acquired through the increased earning capacity provided by the supported spouse’s degree or training.

Thus we remand this case to the Meade Circuit Court for findings as to Sue Inman’s property interest in John’s license to practice dentistry, measured by her monetary contribution to his earning capacity as a dentist, and for calculation of the present value of her interest.

We are also faced with the issue of whether it was proper to award to Sue Inman $100 per month maintenance.

Mrs. Inman is a steadily although relatively modestly paid worker with many years experience in an apparently secure job.

While it is not clear from the evidence that she could not raise hear earning capacity somewhat, it is clear that as a teacher she cannot bring her income above a comparatively modest range.

The lower court has awarded her the benefits of many of the marital assets and has allocated most of the concomitant financial burdens to Dr. Inman.

The lower court has also placed on Dr. Inman a substantial child support obligation which will relieve much of the financial burden which would otherwise fall on Mrs. Inman as custodian of the couple’s three children. In view of these circumstances, an award of periodic maintenance payment to Mrs. Inman is improper. KRS 403.200 provides:

In a proceeding for dissolution of marriage or legal separation . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is custodian of a child whose condition and circumstances make it appropriate that the custodian not be required to seek employment outside the home.

The statute requires that the conditions-of both subsections (l)(a) and (l)(b), supra, be met in order for an award of maintenance to be appropriate. In the instant case, the circumstances described in subsection (l)(b) clearly do not exist. Thus the order of the trial court that Dr. Inman pay $100 a month in maintenance must be vacated.

In summation, we affirm in principle the Meade Circuit Court’s allowance of a professional degree (or the increased earning capacity that it represents) as marital property. However, we find that the court has not made sufficient findings of fact to support the particular division it has made. We thus direct the trial court to find; a) the approximate dollar value of Sue Inman’s contribution to Dr. Inman’s acquisition of a license to practice dentistry, b) the approximate dollar value of Dr. In-man’s increased earning capacity, c) the approximate dollar value, if any, of Mrs. In-man’s contribution to the worth of Dr. In-man’s practice.

As noted above, the reason that the courts are forced to deal with the difficult problems arising from this case is that the Inmans, even though they have had two steady incomes, including Dr. Inman’s well-above-average income, were, at the time of their dissolution, so deeply in debt that they had a net worth of close to zero. The record suggests, but does not clearly show, that the couple’s indebtedness resulted entirely from a combination of Dr. Inman’s poor management of his own business and some disastrous investments.

The degree of Mrs. Inman’s participation in any of these unfortunate ventures appears from the record to be limited, but that issue is not made clear. If Mrs. Inman was in fact a willing participant in the acquisition of these debts, it is unreasonable that she be allowed to have the benefit of all of the possessions accumulated during the marriage while her former husband must continue to bear all of the burdens.

If John Inman’s professional earning capacity is a marital asset, it is clearly offset to some extent by the net indebtedness of the marriage. It would be unreasonable to expect Sue Inman, with her limited salary, to undertake repayment of debts which she never would or could have assumed on the strength of her earnings alone. It is equally unreasonable to allow her to totally escape the impact of these debts if she played a substantial part in their acquisition. We would ask the trial court, on remand, to take this matter into account, and if necessary to take more evidence as to Mrs. In-man’s degree of assent to, and contractual liability for, debts contracted during the marriage.

As noted supra, we learned during appellate oral argument that Sue and the children have lost the marital domicile through foreclosure because of Dr. Inman’s default on mortgage payment. He is now under court order to pay her $60,000 in the next ten years in lieu of mortgage payments. The trial court should certainly consider the effects of this change in circumstances on the relative burdens and benefits of John and Sue Inman.

For these reasons the judgment of the circuit court is affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion.

REYNOLDS, J., concurs.

WILHOIT, J., dissents.

WILHOIT, Judge,

dissenting.

I respectfully dissent from so much of the majority opinion as holds that Dr. Inman’s license to practice dentistry should be treated as marital property, and as denies Mrs. Inman maintenance. The very thoughtful opinion of the majority is persuasive, aimed as it is at reaching an equitable result in a perplexing factual situation. Nevertheless, in this particular case it seems to me that an equitable result can better be reached through an award of maintenance rather than by resort to the tenuous proposition that a license to practice a profession is marital property. Aside from conceptual difficulties, the introduction of such a notion into our law is apt to cause at least as many problems as it would solve.

KRS 403.190 specifically provides that marital property shall be divided “without regard to marital misconduct,” while such a stricture does not apply to maintenance. Consider a situation in which a spouse helps to put a husband or wife through professional school but sometime after graduation and before substantial marital property has been acquired deserts the young professional for an older and wealthier professional person. A most inequitable result might be reached by allowing this spouse to share in, as marital property, the professional license of the deserted partner.

In Casper v. Casper, Ky., 510 S.W.2d 253 (1974), the Court sensibly read the “unable to support himself” provision of KRS 403.-200(l)(b) as being relative rather than absolute. It concluded that the “standard of living established during the marriage” provision of subsection (2)(c) of that statute is to be considered in determining whether a spouse is able to support himself. In the present case it is clear that Mrs. Inman is capable of supporting herself, but not to the standard of living established by the parties during their marriage. When this and other factors relevant to the determination of the amount of maintenance are considered, an equitable result can be reached here.

I recognize that for various reasons it may not always be possible to use maintenance to reach an equitable result in divorce proceedings. Perhaps this problem should be addressed by the Legislature. The marital property concept simply does not fit.


author: DIXON, Judge.

text:
    Bobby Lee GRIFFIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29795.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Jerry W. Venters, Asst. Public Defender, Jefferson City, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., DIXON and TURNAGE, JJ.
   DIXON, Judge.

Movant appeals the denial of his 27.26 motion to vacate a guilty plea to the offense of second degree murder. The initial and dispository point on the appeal is the issue of whether the trial court erred in failing to make specific findings of fact and conclusions of law in denying the relief sought.

Movant raises complex factual issues concerning the voluntariness of his plea. The transcript of the evidentiary hearing includes 40 pages of the motion, itself, and 110 pages of transcript which cover the testimony of 7 witnesses, including the movant, and 18 exhibits. Among the many issues raised by the movant are allegations that he was deprived of communication with his lawyer, relatives, and friends; that the assistance of his attorney was inadequate, particularly in regard to a motion for a change of venue; that he was beaten and harassed by prison guards and threatened with bodily harm if he did not plead guilty; that prison officials promised him release from maximum security in exchange for a guilty plea; and that he was not competent to make a voluntary plea because of medication he was taking at the time of the plea. Movant, when questioned by the judge who heard his motion concerning the statements made at the guilty plea hearing, claimed they were induced by his attorneys who told him to “go along” with the questioning at the plea hearing.

The findings of fact and conclusions of law, omitting formal portions and dealing only with the findings of fact as they relate to the issues raised, are as follows:

“The testimony of the attorney representing the defendant at the time of trial showed that in April, 1968, the defendant was going to enter a plea of guilty and accept the recommendation of the prosecuting attorney of fifteen (15) years. The defendant at that time decided to hold out for a recommendation of ten (10) years. The prosecutor withdrew his offer of a recommendation of fifteen (15) years.
The defendant knew at that time that he would be held in “B Basement” until the time of his trial. By his own actions, his confinement in “B Basement” was extended another six (6) months.
If we accept the contention of the defendant that he would be released from “B Basement” upon the termination of these charges, he knew that on October 28th, the date of his plea, that his trial would be terminated by a verdict of the jury within a day or so.
The transcript of the proceedings at the time Griffin entered a plea of guilty clearly shows that his plea was voluntary and understandably and intelligently entered. It is also clear that his confinement in any particular place or conditions of confinement did not, in any way, influence his decision to plead guilty. By his own admissions, he admitted his guilt of the crime charged.”

The single conclusion of law made is as follows:

“In order to prevail to set aside his sentence by way of invoking Supreme Court Rule No. 27.26, the burden of proof is on the Movant to prove his allegations. The Movant has failed to sustain this burden of proof.”

The position of the movant is that the trial court is required to make findings of fact and conclusions of law when an eviden-tiary hearing is afforded. Rule 27.26(i); Harris v. State, 547 S.W.2d 519 (Mo.App.1977); Garrett v. State, 528 S.W.2d 174 (Mo.App.1975). This position is reinforced by the recent case, Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).

The State responds by arguing that the evidentiary hearing was unnecessary and that the gratuitous hearing afforded Griffin should not give rise to any claim by movant that the findings of fact and conclusions of law are inadequate. The State contends that, if the plea of guilty conclusively demonstrates that no facts were alleged which raise issues not refuted by the files and records in the case, then an evi-dentiary hearing is unnecessary. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

It is settled law that the entry of a guilty plea waives all error or claims of error except to the extent that the errors affect the voluntariness and understanding with which the plea was made. Matthews v. State, 501 S.W.2d 44 (Mo.1973); State v. Ward, 563 S.W.2d 153 (Mo.App.1978); Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977).

What has been recited thus far does not, however, dispose of the contention made by the movant herein. The movant raised factual issues with respect to his state of mind at the time of his entry of the guilty plea which were not directly and unequivocally contradicted by the record made at the guilty plea. The trial judge made a commendable effort at the time of the entry of movant’s guilty plea to ascertain whether he had been made any promises in exchange for his plea and to inform him that his plea must be a free and voluntary act on his own behalf. The difficulty in this case is that the movant indicates by his testimony that his statements to the court at the 27.26 evidentiary hearing, with respect to the promises being made and to the beatings and threats which induced the plea, are contrary to statements made to the trial judge concerning the voluntariness of his plea. Thus, the guilty plea proceedings do show a recital of voluntariness and specifically refute the movant’s claims as to drug use and promises of leniency. They do not refute the claims of brutality and threats inducing the plea.

The State attempts to avoid the allegations in the motion and the evidence offered by movant that he was beaten and harassed and threatened with bodily harm if he did not plead guilty, by asserting that these are within the “conditions of his incarceration.” The State cites Coleman v. State, 473 S.W.2d 692 (Mo.1971), and Ervin v. State, 525 S.W.2d 381 (Mo.App.1975). These cases do hold that complaints about conditions of servitude do not support relief because dissatisfaction with those conditions and a desire on the part of the prisoner to enter a guilty plea to obtain a different kind of incarceration is not coercion. The rule stated in Coleman, supra, and Ervin, supra, does not reach the claim this movant makes — that he was specifically threatened with bodily harm if he did not plead guilty. If the State’s position were right, that no conditions of any sort in a penal institution could affect the voluntariness of the plea, then almost any kind of brutal treatment by prison guards to induce a guilty plea could be hidden behind a facade of “conditions of incarceration.” The State also cites Woods v. State, 564 S.W.2d 333 (Mo.App.1978), which does seem to extend the rule of Coleman, supra, and Ervin, supra, to embrace brutal treatment. It cannot be determined from the opinion in Woods whether specific allegations were made concerning the coercing of the plea by threats of bodily harm. If there were such pleadings, it would appear that Woods extends the rule of Coleman and Ervin improperly. It is much more likely that Woods was dealing with a general allegation that the plea was offered to avoid the conditions of confinement which were characterized as brutal and inhumane by the motion, but which did not relate directly to the threat of bodily harm if a plea was not entered. Absent some specific finding on the credibility issue, there is no basis for appellate review. If there had been a sufficient statement of findings of fact in this case with respect to the credibility of the evidence offered, it might well be that the trial court’s conclusion of law, that the movant had failed to sustain his burden, would be a sufficient one for the disposition of the issues raised in this case. But unquestionably, it would have been far more suitable for the trial court to have addressed the specific issues as they are raised in the briefs here with respect to the voluntariness of the plea and the effect of the claimed irregularities upon the voluntariness of that plea. Thus, in the posture of this case, the State’s reliance upon Smith v. State, supra, is misplaced; for here, there are allegations in the motion and evidence offered which are not refuted by the record in the guilty plea hearing. Thus, an evidentiary hearing was required; and when it is concluded that an evidentia-ry hearing is required, it is clear that the findings of fact in this case do not reach all of the issues presented by the motion and evidence.

The whole subject of review of 27.26 proceedings has been recently reexamined by the Supreme Court of Missouri. In Fields v. State, supra, the Supreme Court overruled Smith v. State, supra. In Fields, the court addressed itself to the problems of application which have occurred since Smith. According to the Supreme Court’s opinion in Fields, by not requiring the appointment of counsel and the making of specific findings of fact and conclusions of law, the Smith opinion created more confusion than it resolved. The rationale of Fields v. State, supra, is that, in order to insure finality under the provisions of Rule 27.26(c) and 27.26(d), attorneys need to be appointed to aid 27.26 movants, and specific findings of fact and conclusions of law need to be made, whether or not an evidentiary hearing is held.

Also, in David Ray Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978), the Supreme Court reversed a motion under Rule 27.26 because of the failure of the trial judge to require written waiver of the right to assistance of counsel mandated by § 600.051 RSMo Supp.1976. In so ruling, the court quoted with approval State v. Mills, 521 S.W.2d 495 (Mo.App.1975), which noted that the practice of judicially determining the prejudicial effect of failure to follow the rule mandated by the statute is to allow the exceptions to become better known than the rule itself. What is apparent from these two decisions is a determination by the Supreme Court of this state that we should no longer seek to rationalize procedural errors by trial courts in the application of Rule 27.26 and its subparts; strict compliance with the provisions of that rule will promote its ameliorative and beneficial effects unfettered by the need for judicial declarations of prejudice or lack of prejudice when the rules are not followed. As the Supreme Court notes in its opinion, these changes will have the effect of expediting and making more manageable the appellate case load in this state.

Applying these principles to the instant case and to the issue it raises, the judgment of the trial court must be reversed and the cause remanded to the trial court with directions to the trial court to enter findings of fact and conclusions of law in accordance with Rule 27.26 to provide a record upon which meaningful appellate review may be based.

All concur.

      . On direct appeal, of course, jurisdictional defects are not waived and may be noticed. State v. Cody, 525 S.W.2d 333 (Mo. banc 1975).


author: WEIER, Judge.

text:
    STATE of Missouri, Respondent, v. Calvin WISHOM, Appellant.
    No. 39356.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.

      Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

1. Case History

Defendant appeals from a conviction in the Circuit Court of the City of St. Louis of first degree robbery after a trial by jury. The jury set punishment at twenty-five years. We affirm.

2. Facts Pertinent to This Decision

At about 12:50 a. m. on December 30, 1976, George Lee admitted the defendant Calvin Wishom and his companion John Bradford into his apartment. Both men drew knives and demanded that Lee turn over his money to them. While Lee was kneeling on the floor with a knife held to his throat by defendant Wishom, the police arrived in response to a neighbor’s call who had heard through a partition wall threats being made by Wishom and Bradford to Lee. The first patrolman who entered the bedroom where Lee had been taken found Lee in this position.

On January 25, 1977, six days after an information had been filed charging defendant Wishom with the crime, he signed an affidavit of indigency in which he stated he was unable to employ counsel to defend him. The court thereupon on that same date appointed the public defender’s office and an assistant in that office entered his appearance on behalf of the defendant. On the same day this attorney made a request for discovery and filed a motion for dismissal of Count II in the information charging the defendant with armed criminal action. This was later sustained. On March 30, 1977, the assistant public defender who had been representing Wishom filed a motion to withdraw stating that the defendant expressed “great hostility” toward him, wished to discontinue the representation and further wished to proceed pro se. On April 7, 1977, the court held a hearing concerning Wishom’s plea to represent himself in the defense of the charges against him. Wishom complained that the public defender had not communicated with him and had failed to interview witnesses to get ready for trial. The assistant public defender replied that he had discussed the case with defendant Wishom and had communicated with him numerous times on the telephone. He further stated that he had an investigator from his office interviewing the witnesses for the defendant at that time. Upon inquiry by the court Wishom disclosed that he had graduated from high school and had had a few years of college. He also claimed to have had about two years of legal training in military service. He stated that he also represented himself in the Federal Court in a suit which he had filed. Afterward the judge informed Wishom that he would be expected to comply with the rules governing trial procedure and that in the judge’s opinion it would be a mistake for him to represent himself. But upon defendant’s insistence, the public defender was allowed to withdraw and Wishom was informed that he could under take his own defense. On May 4, 1977, the case was called for trial and when the judge asked defendant Wishom whether he still wished to represent himself, defendant replied that he did not. The court thereupon appointed counsel who was familiar with the case and the case proceeded to trial.

After the jury panel was questioned on voir dire as to the qualifications of its members to serve on the jury, the attorney representing the defendant out of the hearing of the panel informed the court that defendant Wishom had changed his mind and would now like to represent himself. The court then told defendant’s attorney that it was too late for this to be done and that he would not permit him to withdraw at that time. The case then proceeded to trial with defendant represented by his court-appointed counsel.

3.Issues Submitted and Their Determination

The issues raised in the points relied on in defendant Wishom’s brief will be discussed sequentially in the order in which they were raised in defendant’s brief and will bear the same Roman numeral designation.

I. Defendant charges that the trial court erred when it overruled defendant’s motion to proceed pro se because the court in effect forced counsel upon defendant. This point is raised under the plain error rule, Rule 27.20(c), because it was not set forth in the motion for new trial. An objection was not made at the time of the ruling by the trial court. Constitutional questions must be raised in the trial court at the earliest opportunity. They may not be raised for the first time in the appellate court. And his constitutional grounds for objection must be kept alive and preserved throughout the case including his motion for new trial. State v. Meiers, 412 S.W.2d 478, 481 (Mo.1967); State v. Wright, 551 S.W.2d 884, 886[1] (Mo.App.1977); McCrary v. State, 529 S.W.2d 467, 472[7] (Mo.App.1975). To invoke the “plain error rule” under Rule 27.20(c) as contended by appellant, “ . . . there must be a sound, substantial manifestation . , a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” State v. Meiers, supra at 480-81. This is a discretionary rule and justification for its use in this case does not appear. A perusal of the transcript indicates that he was well represented by appointed counsel at the time of the trial and we do not see that the court’s action in refusing his second request to represent himself constituted a manifest injustice or miscarriage of justice within the plain error rule.

II. Defendant contends that the trial court erred again under the plain error rule when it overruled defendant’s motion to proceed pro se because defendant has a constitutional right to defend himself. It is true that under certain circumstances which we do not find here, a defendant has the right to represent himself and proceed pro se in the trial of the case. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But again defendant failed to preserve such error in his motion for new trial and we do not find that the contention should come within the terms of the plain error rule for the reasons heretofore given.

4. Disposition

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.


text:
    STATE of Missouri, Respondent, v. John BRADFORD, Appellant.
    No. 39355.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.

      Charles H. Staples, Staples & Willis, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

1. Case History

Defendant appeals from a conviction in the Circuit Court of the City of St. Louis of first degree robbery after trial by jury. The jury set punishment at twenty-five years. We affirm.

2. Facts Pertinent to This Decision

The defendant John Bradford accompanied Calvin Wishom to the apartment of George Lee on December 30, 1976, and there engaged in the robbery of George Lee. The details of the robbery are related in the case of State v. Wishom, 578 S.W.2d 275, No. 39356, opinion dated December 27, 1978, handed down concurrently with this opinion. Bradford was arrested by an officer just as he let himself out the rear door of the apartment.

3. Issue Submitted and Its Determination

Defendant contends on appeal that the trial court erred in failing to grant a mistrial and in failing to exclude testimony concerning a knife attributed to the defendant as a result of the State’s failure to comply with Rule 25.32. This rule sets out matters which must be disclosed by the State to the defendant without court order. Apparently the State had given defendant’s counsel a copy of the police report but failed to furnish a copy of a supplementary police report which was later on discovered in the police file. The supplementary police report mentioned a second knife which was attributed to being the one used by defendant Bradford. The fact that a knife was wielded by Bradford was previously alluded to. Victim Lee had testified that each of the alleged robbers had a knife and they were charged in the information with having “knives.” The substance of defendant’s contention according to his brief is that the refusal of the trial judge to grant a mistrial or to exclude prejudicial evidence with the judge’s failure to grant a continuance constituted an abuse of discretion. The only relief requested when the matter was raised at trial was that the court grant a mistrial.

As we previously stated, defendant Bradford was found guilty of robbery in the first degree on May 6, 1977. The transcript does not disclose that any request was made for an extension of time in which to file a motion for new trial. A timely motion for new trial was filed on May 16, 1977, but the grounds for the motion did not contain any assertion of error because of failure of the State to supply defendant’s, counsel with a copy of a “supplementary police report.” This ground is first asserted in an amended motion for new trial which was filed out of time on May 25, 1977. Any after-trial motion filed beyond the ten days authorized under Rule 27.20, when no extension was granted, is a nullity and the matter therein, contained is not for review in an appellate court. State v. Mucie, 448 S.W.2d 879, 890[16] (Mo.1970).

4.Disposition

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.