author: WEIER, Judge.

text:
    In re the MARRIAGE OF Frances BADALAMENTI, Petitioner-Respondent, and Frank Badalamenti, Respondent-Appellant.
    No. 38342.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Dowd & Oates, Edward L. Dowd, Francis M. Oates, St. Louis, for respondent-appellant.
    Gross & Goodman, Michael A. Gross, Mark E. Goodman, John Gerst, Peter Fer-rara, St. Louis, for petitioner-respondent.
   WEIER, Judge.

Petitioner Frances Badalamenti (hereinafter referred to as Frances) filed a petition for dissolution of her marriage to Frank Badalamenti (hereinafter referred to as Frank). After hearing the evidence, the trial court dissolved the marriage and awarded custody of the eighteen year old adopted son to Frank. The court also decreed that no child support be paid, ordered the husband to pay the wife $150 a month maintenance and made orders dividing the parties’ property so that the wife was awarded a dwelling house (which she valued at about $26,000), the 1972 automobile, all household goods and furnishings (except for a few items which the court found were the property of the son or the separate property of the husband), and $5,000 in cash “which sum respondent is ordered to pay to petitioner from one or more of the accounts or certificates of deposit standing in his name or under his control,” and the husband was awarded “all other savings accounts, stocks, certificates of deposit, bonds and debentures standing in his name or under his control,” which if one were to accept certain evidence totaled about $35,-000. The trial court also ordered the husband to pay the wife’s attorney fee. On appeal the husband contests the $5,000 cash award to the wife, the granting of “all or virtually all of the marital property,” so he says, to the wife and the order requiring him to pay her $150 per month maintenance. Disposition of the first two issues depends primarily on whether the husband proved that money in various savings accounts was his or his sisters’ separate property because it came from the sale of property he and his sisters had inherited prior to his marriage. We affirm the trial court judgment in all respects.

The parties were married in Italy in 1949. Frances had been born and raised in St. Louis and Frank had been a citizen of Italy. Frances found a sponsor for Frank and he came to St. Louis in 1950, becoming a naturalized U. S. citizen two years later. Prior to the marriage Frank’s parents died and he and his two sisters jointly inherited some property from their parents. Frank also inherited some property in his name only. These pieces of property were sold at different times, with the sale of the last and largest piece occurring in 1970. The details of the sales and allegedly corresponding investments by Frank is discussed later.

From 1950 until 1955 the couple lived in an apartment with Frances’ mother. The mother paid for the rent and most other expenses during this period. She worked doing hand sewing as did her daughter Frances. Frank worked as a tailor earning $45 a week gross for about a year, then $69 a week for a time, and then $90 a week gross. For a number of years he worked at two jobs.

In 1955 the trio moved into a house on De Tonty Street in St. Louis. The couple bought the house in both of their names for a total price of about $14,000. About half of this amount was paid as a down payment. Frances said the money for the down payment came from money saved by Frank out of his wages. Frank testified that some of the down payment was from his own savings and that about $3,000 was a gift from his uncle. Frank paid off the loan on the house by 1960 partly from his paycheck and partly from money from his uncle. Neither Frances nor her mother contributed to the purchase price of the house. Because of disagreements between Frank and his mother-in-law, she moved out of the house on De Tonty and back to her old apartment for about two years and then she moved back to live with the couple again. Frank’s nephew, Salvatore Bada-lamenti, lived at the house on De Tonty for three or five years and Frank’s niece and her husband lived there for about six months without paying any rent. While the husband, wife and wife’s mother lived on De Tonty, Frances and her mother cooked meals and kept the house. After Frances’ mother retired, she looked after the couple’s son while Frank and Frances were working. With the money she received from social security, Frances’ mother paid for several improvements on the house including a water heater and storm windows. Frances and her mother purchased most of the furniture used by the family during the marriage. Frances paid for her own expenses and for some of the household expenses and each of the three purchased food. The son was born and adopted in 1957.

In October, 1960, the couple signed a contract to purchase, in both of their names, a house on Newton Drive in Ferguson, Missouri, for a total price of $19,450. Sometime in 1960 or 1961 the family (husband, wife, son and wife’s mother) moved into this new house. Both the initial down payment and the monthly mortgage payments for this house were paid by Frank. The source of the funds for these payments is not very clear. The down payment apparently was $7,000. Two thousand dollars of this amount was a loan from the Italian Society. This loan was paid off from some of the money received when the house on De Tonty was condemned by the city for a highway in 1966. An additional $4,000 from the De Tonty property went into the house on Newton, for a total of $6,000. Some money from Frank’s Italian inheritance also went into the house on Newton but he did not know the exact amount. Presumably some of the money for the house on Newton came from Frank’s earnings and from rent received on the De Tonty house between the time the family left that house in 1961 until it was sold to the city in 1966. The last payment on the house on Newton was made in 1969 or 1970. While the family lived in this house, Frank paid the utility bills. He also purchased a new furnace. Both Frank and Frances said they paid for some of the food.

When the De Tonty house was condemned for a highway in 1966, the city paid about $18,000 for it. It is not clear what happened to this money. As mentioned earlier Frank testified that about $6,000 of that amount went into the house on Newton. According to Frances $5,000 of the $18,000 for the De Tonty house went into an account in the name of the husband as trustee for the son. She also testified, and Frank later acknowledged, that about $16,-900 of the money from the De Tonty house was put into an account at Roosevelt Federal Savings and Loan Association in the name of Frank as trustee for Frances his wife. At about that same time Frank bought a car for $4,000. He acknowledged that this money also came from the sale of the house on De Tonty. Obviously some of this testimony had to be disbelieved, otherwise the total amount of disbursements from the $18,000 received from the sale of the house comes to about .$31,000.

The testimony and exhibits introduced in evidence to prove what happened to the proceeds from the sale of the husband’s Italian property is also not clear. Evidence on the sales of the land in Italy came from testimony from the husband and from English translations of several Italian documents. Evidence on openings of bank and savings accounts and later transfers to other accounts came from testimony of Frank and several bank and savings and loan association employees. The wife testified as to some financial dealings but she was generally unaware of what her husband did with money. “He don’t tell me his business. He keeps it to himself.”

In 1946 after Frank’s father died, but before he and Frances were married, a division of the Italian property was made between the members of the husband’s family. After this division, it seems that Frank owned four pieces of property by himself and probably two pieces as a joint owner along with others. By himself, he owned a house on Roma Street, a house on Caruso Street and two tracts of unimproved land in or near the city of Cinisi, Italy, on the island of Sicily. One piece of jointly held property was referred to as “the big land” and the other as a house on Roma Street. In 1959 the husband sold his separately owned house on Roma Street for $5,000. In the same year he also sold the house on Caruso Street for $2,800. He testified in 1969 he sold his two tracts of unimproved land for a total of $2,000. Also in 1969, Frank and his sisters sold the other part of the house on Roma Street for $3,800. In 1970 “the big land” was sold but no written record was made of this transaction. The husband said he and his sisters received $18,000 for this property. A witness to part of this transaction, which occurred in St. Louis, said the total amount of money paid to Frank was $18,000. Frances didn’t actually see the money but she remembered Frank telling other people that he got about $40,000 or $50,000 for the land “because his sister got half of it too, the married sister.”

Frank testified that some of the money he received from the sale of the Italian property was put into an account at “Roosevelt Federal or St. Louis Federal, some of it” in his name as trustee for his two sisters. It is not clear which sale of property he is referring to or how much was put into this account. Frank also acknowledged that he “acted as trustee in the handling of the affairs of [his] retarded sister,” Maria, and that after 1972 he handled some business matters for his other married sister, Ma-rianna Polizzo. He further acknowledged that he carried some of the money he inherited in his name as trustee for his son. He admitted that some indeterminate amount in his accounts came from money he had saved from his earnings. He also said that of the $25,000 to $27,000 in his bank accounts at the time of trial, he owned one-third and each of his two sisters each owned a third.

Frank further testified that a $5,000 McCrory Corporation bearer bond purchased through his account on January 28, 1972, was purchased with his sister Marian-na’s money and that she had possession of the bond all along, and further that two GAC Property bonds purchased and registered in his name and delivered to him on June 14, 1972, were also purchased with Marianna’s money and that the registration was transferred to his sister on August 19, 1974, after divorce proceedings began. Ma-rianna testified through an interpreter that she had requested her brother to purchase these bonds and that she and her husband supplied the money to buy them. She also said none of the money for the bonds came from money she inherited “from Italy.” Apparently these bonds would not be included in the property awarded to the husband by the trial court because they were not “standing in his name or under his control.”

Some of the money which had been in various bank and savings and loan association accounts and certificates of deposit during the marriage was still in accounts and certificates at the time of trial while other funds were withdrawn and apparently expended before trial. One certificate of deposit purchased at Mark Twain North-land Bank on February 7,1966, in the name of Frank and his son was cashed on February 10, 1970, for $5,800. These funds were not accounted for by Frank but this money could have been put into a $5,500 certificate of deposit (number 5000163) at St. Louis Federal Savings and Loan Association in Frank’s name as trustee for his sister Maria since such an account was opened there on February 9, 1970, one day before the Mark Twain Bank paid out the certificate for $5,800. This account at St. Louis Federal is still active and at the time of trial had a balance of $7,527.14. In answer to interrogatories Frank made no claim that this money came from the sale of property in Italy, but in his brief on appeal he contends the money in account 5000163 did come from the proceeds of the sale of “the big land” which was sold around February 1970. A second certificate at Mark Twain Northland Bank in the amount of $5,000 in the name of the husband in trust for his son (number 414) was cashed on January 22, 1971, at St. Louis Federal Savings and Loan and used to open a $5,000 account (number 3492) at St. Louis Federal again in the name of the husband as trustee for his son. This account was still open with a balance of $5,631.01 but in August 1975 the name was changed to Frank as trustee for his sister Maria. In answer to interrogatories the husband stated this money came from the sale of inherited property.

Account number 5000163 containing $7,527.14 and account number 3492 containing $5,631.01 were the only two remaining accounts at St. Louis Federal Savings and Loan. There were also several accounts at Roosevelt Federal Savings and Loan Association. One, passbook account number 4108232, was originally opened under another number on March 3, 1967, in Frank’s name as trustee for his son. At the time of trial the balance in 4108232 was $1,641.35. A $7,000 transfer from this account on September 20, 1974, was used to open certificate 4804351 in the name of Frank as trustee for his son. At the time of trial this certificate was worth $7,132.48. A $6,000 transfer from passbook account 4108232 on April 1, 1971, was used to open one certificate of deposit which was later transferred to certificate 4801788, both of which were in the name of Frank as trustee for his son. At the time of trial this certificate was worth $8,011.66. In answer to interrogatories Frank claimed the money in these three accounts came from the sale of inherited property.

Another series of accounts at Roosevelt began in July 1,1968, in the name of Frank as trustee for his wife. The bank employee who testified concerning these accounts did not know the opening balance but on January 28, 1970, $15,000 from this account was transferred to certificate 4800196 for a higher rate of interest. On January 28, 1974, this certificate, which was still in Frank’s name as trustee for his wife, was worth $16,097.77. Eventually all the money was withdrawn from this account. At 5:24 p. m. on August 2, 1974, there was a withdrawal of $3,474.04 and at 6:52 p. m. the same day there was a second withdrawal of $6,000. At 7 p. m. the same day the same teller who handled the two withdrawals accepted deposits totaling $6,400 for account number 4119977. This account was in the name of Salvatore Badalamenti as trustee for Mr. Francesca Badalamenti. The following day another $3,105 was deposited in account 4119977 and then $9,500 was transferred out of this account into a certificate of deposit number 5801332. This certificate was a joint account in the name of “Salvatore Badalamenti and Francesca Badalamenti.” The balance in this account at the time of trial was $10,572.81. On August 5, 1974, an additional $5,000 was withdrawn from account number 4800196 (the one in the name of the husband as trustee for his wife). On January 28, 1975, the remaining balance of this account ($1,923.68) was transferred to an account in the name of Frank as trustee for his son and later, on July 19, 1975, withdrawn by him.

The husband admitted taking out more than $14,000 from account 4800196. He and his nephew, Salvatore Badalamenti, both denied that Frank gave the nephew money to deposit for the husband. Frank said between $8,000 and $12,000 of the money from account 4800196 was spent on a vacation to Florida and the Bahamas in August 1974 with much of the money being lost by gambling. He admitted, however, that he took this vacation following a court hearing on the first divorce suit filed by his wife before that suit was dismissed.

During the course of the marriage Frank made five or six trips to Italy. On two different trips Frank testified he bought his wife a $3,000 diamond watch and a $3,000 set of pearl earrings and necklace. On the last trip in 1970 he took his wife and son along. The family also made a vacation trip to California in 1959. Both parties put on evidence of what could be considered mean, discourteous and disrespectful behavior by one party toward the other. No useful purpose would be served by detailing this evidence.

Frances assessed her financial needs at $529 a month. Her average monthly take-home pay in 1974 was $290, leaving $239 a month that she said she needed from her husband. She earned $2.42 per hour. Her gross yearly earnings from 1971 through 1974 ranged from $2,563.79 to $4,005.96. Both she and her husband had some health problems. The husband was hospitalized several different times and he quit one of his two jobs after his doctor said “give up one job.” In 1974 while working at two jobs, the husband earned about $12,000 in wages before taxes and about $2,000 in interest from various savings accounts. With the one remaining job at the 1974 pay rate the husband would earn about $8,000 a year in wages before taxes, plus some indeterminate amount from interest on savings accounts. In 1972 Frank settled a personal injury claim for $7,000. He received some of this money in 1972, some went toward attorney’s fees and some was still being paid to him in installments at the time of trial. Since January 1975, Frank has lived with his two sisters and his brother-in-law.

The standard of review in this court-tried case set out in Rule 73.01 is interpreted by the often quoted case of Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976).

The husband’s first point on appeal is that the trial court erred in awarding the wife $5,000 in cash because the decree in that respect is not supported by substantial evidence, is against the weight of the evidence and misapplies the law because the husband proved that during the marriage he sold inherited property belonging to him and his sisters for $31,600 and that he “had preserved the proceeds in various bank accounts, which at the time of trial totaled approximately $28,000.00; accordingly [the husband] established that these accounts were not marital property, and the court’s award to [the wife] of $5,000.00 from said accounts was prohibited by § 452.330,” Supp.1973.

One problem in resolving this contention is that neither party requested findings of fact or conclusions of law and none were provided concerning which bank accounts were marital property and which were the separate property of the husband. With regard to the $5,000 cash award, the decree simply states that the wife “is awarded $5,000.00 in cash which sum respondent is ordered to pay to petitioner from one or more of the accounts or certificates of deposit standing in his name or under his control.” The trial court has no duty to make findings of fact or conclusions of law in the absence of a specific request therefor and when no findings or conclusions are made “all fact issues are considered found in accordance with the result reached by the court.” Stark v. Stark, 539 S.W.2d 779, 781[1] (Mo.App.1976). The husband argues that for the trial court to divide the property the way it did it must have determined that most, if not all, of the money in the bank accounts was marital property. The husband concedes that the house, the car and $1,000 worth of household furnishings are marital property. He claims that the money in the savings accounts was his separate property or at least that it is not marital property.

The savings accounts, bonds and debentures in existence at the time of trial were all acquired subsequent to the marriage. As such, this property is presumed to be marital property regardless of the status of the title to the property. Section 452.330.3 RSMo Supp.1973; Jaeger v. Jaeger, 547 S.W.2d 207, 210 (Mo.App.1977). However, “[t]he presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.” Section 452.330.3 RSMo Supp.1973. The methods listed in subsection 2 include “(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gifts, bequest, devise, or descent,” and “(5) The increase in value of property acquired prior to the marriage.”

We agree with the husband’s contention that he overcame the presumption that these savings accounts were marital property (simply because they were acquired subsequent to the marriage) because he made “a showing” (as required by § 452.330.3) that the accounts and other liquid assets were “acquired in exchange for property acquired prior to the marriage” and the increase thereof. Section 452.330.2(2), (5). But by making such a showing and overcoming the presumption, the husband merely made the presumption disappear. After this occurred the trier of fact received the issue free of any presumption and “the existence or nonexistence of the fact once presumed is to be determined from the evidence as if no presumption had ever been operative in the case.” J.D. v. M.D. 453 S.W.2d 661, 663[4] (Mo.App.1970). See also, In re L_, 499 S.W.2d 490, 492[2] (Mo. banc 1973); Terminal Warehouses of St. Joseph, Inc. v. Reiners, 371 S.W.2d 311, 316-317[4, 5] (Mo.1963).

Without the presumption that the bank accounts were marital property, the trial court, as trier of fact, had to decide on the basis of conflicting evidence (including the evidence that gave rise to the presumption and that to the contrary) whether the property was marital property or the separate property of the husband. Evidence tending to show that the money was “[p]ro-perty acquired in exchange for property acquired prior to the marriage” included the husband’s testimony that the Italian land in which he had an interest was sold for a total of about $31,600, that some of the proceeds from these sales went into accounts at Roosevelt Federal or St. Louis Federal and that of the total amount in these accounts (which he says is about $28,-000), he owned one-third and his two sisters each owned one-third. Evidence tending to show that the money in the bank accounts was not in exchange for property acquired prior to the marriage but, rather, came from other sources included Frank’s testimony that some of the money in these accounts came from money he had saved from his earnings (marital property), his testimony that some of the proceeds from the sale of the Italian land went into the house on Newton, the wife’s testimony that $5,000 of the $18,000 received on the sale of the house on De Tonty went into an account in the name of the husband as trustee for the son (marital property), and the fact that the opening dates of many of the savings accounts do not correspond to the dates when the inherited property was sold. Under these circumstances we cannot say that there was no substantial evidence to support the (implied) trial court judgment that some of these bank accounts were marital property nor that this judgment was against the weight of the evidence or was an erroneous application of the law. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976). Furthermore, where marital and nonmarital property are commingled and then exchanged for new property, the newly acquired asset is marital property regardless of the state of the title of the newly acquired asset. Jaeger v. Jaeger, 547 S.W.2d 207, 211[5] (Mo.App.1977). As stated in that case, at p. 211, “We do not believe that the ‘exchange’ exception found in § 452.330.2(2) is applicable when a person uses both his pre-marriage property and marital property to purchase new property during the marriage. In commingling his own assets with marital assets, the spouse has failed to sufficiently segregate his own property.”

In a related issue the husband contends that the wife should be bound by her answers to interrogatories where she did not list the money in these bank accounts as property in which she claimed an interest because her answers were a sworn admission that this money was not marital property. The wife was generally unaware of what her husband did with money.and it was not until after she filed her answers to the interrogatories in question that she learned of the bank accounts in the husband’s name. She should not be penalized for failing to list the property when she did not know it existed.

There is another reason why the $5,000 award to Frances from the bank accounts and the certificates of deposit standing in Frank’s name or under his control is not “prohibited by § 452.330” as asserted by him. Frank calculates the total value of such accounts at about $28,000. (There is actually about $29,940 in the accounts he’s referring to.) This total fails to include the $10,572.81 in the Roosevelt Federal certificate of deposit number 5801332 in the name of “Salvatore Badalamenti and Francesca Badalamenti.” Competent and substantial evidence showed that the money for this certificate came from Roosevelt Federal certificate 4800196 which was in the name of Frank as trustee for his wife and that at all times these funds were marital property. The husband never claimed this money came from proceeds from the sale of inherited property; he simply denied that any funds from certificate 4800196 had been put into an account in the name of his nephew Salvatore. Thus even if we were to hold that all of the other accounts were the separate property of the husband, the $5,000 award to the wife could still be paid out of certificate 5801332 since this money was marital property.

The husband’s second contention is that the trial court erred in awarding the wife “all or virtually all of the marital property, and the decree in that respect is not supported by substantial evidence, is against the weight of the evidence, and misapplies the law, because the award is grossly disproportionate, ignores [the husband’s] contribution to the acquisition of the property, ignores [his] obligation to support the minor child, and ignores [the wife’s] misconduct during the marriage.”

According to the husband’s calculations, the wife received the house valued at about $26,000, the car valued at $1,000, household furnishings valued at $1,000 and $5,000 in cash, for a total of about $33,000, and he received about $23,000 in cash. This assumes that there was a total of about $28,-000 in cash. But as mentioned above, this $28,000 figure does not include the $10,-572.81 in Roosevelt Federal certificate of deposit 5801332 in the name of “Salvatore Badalamenti and Francesca Badalamenti” which amount should be included in the total cash assets standing in his name or under his control. Taking the revised figure of about $38,500 as the total cash assets, the husband received about $33,500 by the trial court’s decree.

Adding the value of certificate 5801332 to the value of the other marital property makes a total of about $38,500 that had to be considered marital property ($26,000 for the house, $1,000 for the car, $1,000 for furnishings and $10,500 in cash). An additional $5,600 (the approximate difference between $16,100 and $10,500) also could have been properly included in the couple’s marital property at the time of trial because the entire amount of $16,100 in certificate 4800196 as of January 1974 could have been included in the marital estate. Substantial withdrawals from this account in August 1974 following a court hearing on the first divorce petition filed by the wife and the subsequent lavish vacation during the pendency of that suit were circumstances that evidenced an attempt by the husband to defeat the wife’s rights in this marital property. These withdrawals could be disregarded by the trial court. Daniels v. Daniels, 557 S.W.2d 702, 704[3] (Mo.App.1977). When this extra $5,600 is added to the value of the rest of the marital property, the total value of marital property is about $44,100.

The value of all other certificates and accounts, other than certificate 5801332, is about $29,900. The husband claimed that he owned only a third, or about $9,960 of this amount. If this is true then he received $9,960 as his separate property and about $11,100 in marital property ($16,100 from certificate 4800196 minus $5,000 awarded to the wife or, figured another way, $5,500 as the difference between $10,-500 and $5,000 plus $5,600 withdrawn from certificate 4800196 and not accounted for), for a total of about $21,060 for the husband. But, as discussed above, the court could reasonably find that some of the accounts and certificates in the husband’s name, other than certificate 5801332, were also marital property. And as the trier of fact and the judge of the credibility of the witnesses, even if testimony is uncontradicted, Jaeger v. Jaeger, 547 S.W.2d 207, 213[9] (Mo.App.1977), the trial court was not required to believe the husband’s assertion that he only owned one-third of the $29,900 and each of his two sisters each owned a third particularly where there was competent and substantial evidence that much of this money came from sources other than the sale of inherited property and the fact that the name of his sister Marianna never appears on any of these accounts or certificates. If an additional $10,000 to $15,000 from these accounts is added to the previous total of $21,060 for the husband, there is a total award to him (without distinguishing between marital and separate property) of between $31,060 and $36,060 as compared with a total of about $33,000 to the wife.

The discussion just concluded considers the evidence in light of the second statutory factor, “[t]he value of the property set apart to each spouse,” § 452.330.1(2) RSMo Supp.1973, of the four nonexclusive, Lockett v. Lockett, 558 S.W.2d 387, 388[2] (Mo.App.1977), factors listed in § 452.330.1 which must be considered by the trial court when making a “just” division of marital property. The statute does not mandate that the division of marital property “be done with mathematical nicety by means of a stereotyped mathematical formula.” In re the Marriage of Vanet, 544 S.W.2d 236, 240[2] (Mo.App.1976). Rather this division is a matter within the discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. In re the Marriage of Vanet, supra at 240[3].

Concerning the first factor, “[t]he contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker” (§ 452.-330.1(1)), it appears that the husband was the principal breadwinner throughout most of the marriage, for several years working at two jobs. He made the house payments and paid the utility bills. However, the wife also worked and paid for some of the family expenses. She, along with her mother, cleaned the house and cooked the meals except for a period before the husband moved out when he had to cook his own food and do his own laundry. As for the third factor, the economic circumstances of each spouse (§ 452.330.1(3)), the evidence showed that the husband had a higher income than his wife, even while working at just one job. Both parties had some health problems, with the husband’s appearing more severe. It seems that the son would soon be on his own. Concerning the fourth factor, the conduct of the parties during the marriage (§ 452.330.1(4)), there was much evidence indicating that both parties were less than good and kind toward each other. But considering all of this evidence, which we do not describe in detail, it seems that neither party appears much better than the other. A consideration of all these factors leads us to the conclusion that the trial court’s division of marital property was not an abuse of discretion in this case.

The husband’s third point on appeal charges error in that portion of the trial court decree awarding $150 per month maintenance to the wife. An award of maintenance may only be granted if the trial court finds that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his reasonable needs and is unable to support himself through appropriate employment. Section 452.335.1 RSMo Supp.1973. Of the property awarded the wife, only the $5,000 in cash was income producing. The property awarded to the wife is not sufficient to provide for her reasonable needs. Her annual gross earnings from doing hand sewing from 1971 through 1974 ranged from $2,563.79 to $4,005.96. These earnings are not sufficient for her to support herself. Thus it was appropriate for the trial court to make an award of maintenance. In view of the wife’s financial needs, the husband’s gross wages of about $8,000 in 1974 (about double that of the wife’s), and the amount of liquid assets awarded to the husband, it appears that the maintenance award of $150 a month to the wife was justified. Section 452.335.2 RSMo Supp.1973. The amount of this award was a reasonable balance between the husband’s ability to pay and the wife’s reasonable needs, Farns worth v. Farnsworth, 553 S.W.2d 485, 487[4] (Mo.App.1977), and was not an abuse of discretion. McCully v. McCully, 550 S.W.2d 911, 914[8] (Mo.App.1977).

The judgment is affirmed.

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

      .The wife acknowledged that $6,000 of the $18,000 received for the house on De Tonty was used as a down payment on the house on Newton even though the Newton house was purchased in 1960 and the De Tonty house was sold in 1966.

      . Both Roma Street houses have the same address but it appears from the exhibits that they are separate pieces of property, possibly like two condominiums in one building.

      . Although exhibits were introduced to show the sale of the other pieces of property, none show the sale of these two pieces.

      . The husband also purchased a $5,000 Federal Intermediate Credit Bank bond on October 1, 1973, in his name as trustee for his son. On July 1, 1974, when this bond came due he turned it in in exchange for another $5,000 bond which he put in the name of himself and his sister. This bond was due July 1, 1975. The husband testified at trial that this bond “was gone about two years ago” being used to pay for various expenses.

      . Salvatore Badalamenti is Frank’s nephew. Frank is referred to as Francesca Badalamenti in the Italian documents which record the division and sale of his Italian property.

      . Property includes personal property and money. Section 1.020 RSMo 1969; Cain v. Cain, 536 S.W.2d 866, 868 (Mo.App.1976).

      . The husband did not testify, as asserted in his brief, that “he always deposited the proceeds of his Italian land sales in accounts as trustee for his son or sisters” because he admitted that some of the proceeds went for other purposes, such as toward buying the house on Newton.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Plaintiff-Respondent, v. William L. FREIN, Defendant, and Colonial Cleaners & Shirt Laundry, Inc., Garnishee-Appellant.
    No. 38751.
    Missouri Court of Appeals, St. Louis District, Division 1.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Julius H. Berg, P. C., Mark D. Hirschfeld, Clayton, for garnishee-appellant.
    Evans & Dixon, Jeffry S. Thomsen, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Colonial Cleaners & Shirt Laundry, Inc., appeals from an order and judgment entered in the circuit court of St. Louis County overruling appellant’s motion for a new trial or for a rehearing. For reversal appellant argues that the trial court erred in overruling appellant’s motion because (1) the default judgment against appellant was irregular and void and (2) the order of July 7, 1976, declaring the order of August 22,1974, which set aside the default judgment, was null and void. For the reasons discussed below, we dismiss this appeal.

After a trial on the merits, judgment was entered in favor of respondent Travelers Insurance Company and against William L. Frein in the sum of $5063.77 plus costs and interest. A year later respondent initiated execution and garnishment proceedings against Frein as judgment debtor and appellant as garnishee to collect on the judgment. Appellant filed its answer to the writ of garnishment, denying that Frein was an employee or that it owed Frein any money. Appellant did not answer respondent’s interrogatories and supplemental interrogatories. After the trial court granted respondent’s motion for default and inquiry, appellant filed answers to the supplemental interrogatories signed by Frein both in his individual capacity as a defendant and in his capacity as president of appellant corporation. The default and inquiry was later set aside.

Respondent filed a motion to compel appellant to answer its original interrogatories and to fully and completely answer its supplemental interrogatories, or in the alternative for a default judgment against appellant. Finally, on August 9, 1974, respondent filed a motion for default judgment for appellant’s failure to answer the original interrogatories and failure to fully and completely answer the supplemental interrogatories. On August 19,1974, the trial court sustained the motion for default judgment and entered judgment in favor of respondent and against appellant in the sum of $5063.77 plus costs and interest.

On August 22, 1974, appellant filed a memorandum requesting leave of court to file answers to the original interrogatories and a motion to set aside the default judgment. This memorandum, now in the court file, contains a handwritten notation, “For good cause shown 90.13 C (sic) Rules,” signed by the trial court. On March 20, 1976, respondent filed a motion to declare the purported order of August 22,1974, null and void and the judgment final. On July 7, 1976, after a hearing, the trial court found that the judgment of August 19, 1974, had not been set aside by the purported order of August 22, 1974, and declared the judgment of August 19,1974, was final.

On July 15, 1976, appellant and Frein filed a “Motion for rehearing or motion for new trial.” This matter was heard on November 15,1976, and on November 24,1976, the trial court overruled the motion. On December 3, 1976, appellant filed its notice of appeal.

An appeal is ineffective if the notice of appeal is not filed within ten days after the judgment appealed from becomes final. Rule 81.04, V.A.M.R. Because the notice of appeal was not timely filed in this case, the appeal is ineffective and must be dismissed. We do not have jurisdiction over this appeal. Rule 81.04, V.A.M.R.; see e. g., Winkelman v. Neuner, 542 S.W.2d 551 (Mo.App.1976); Budget-Easy, Inc. v. Burd, 539 S.W.2d 740 (Mo.App.1976).

The procedural history of this case is somewhat unclear. If the default judgment entered on August 19, 1974, did not become final until the court order of July 7, 1976, this appeal is ineffective because appellant did not file a notice of appeal within ten days after July 7, 1976. Rule 81.04, V.A.M.R.; see e. g., Budget-Easy, Inc. v. Burd, supra. Even if the default judgment entered on August 19, 1974, did not become final as of July 7, 1976, contrary to the plain meaning of that order, the appeal is still ineffective. Appellant filed its motion for rehearing or for new trial on July 15, 1976, but the motion was not called up for hearing until November 19, 1976, and was not decided until November 24, 1976. Because no action was taken within ninety days after the motion was filed, it was therefore deemed to have been denied. Rule 78.06, V.A.M.R.; see, e. g., Highland Gardens Nursery, Inc. v. North American Developers, Inc., 494 S.W.2d 321 (Mo.1973); Wooten v. Howerton, 521 S.W.2d 478 (Mo.App.1975). For this reason, even if the judgment did not become final until ninety days after July 15, 1976, or October 13, 1976, this appeal is ineffective because the notice of appeal was not filed until December 3, 1976, more than ten days after the judgment became final. Rules 81.04, 81.05, V.A.M.R.; see, e. g., J & P Trust v. Continental Plants Corp., 541 S.W.2d 22 (Mo.App.1976) and Phillips v. Frazier, 537 S.W.2d 251 (Mo.App.1976).

Appeal dismissed.

CLEMENS, P. J., and SMITH, J., concur.

      . As discussed above, the default judgment was entered on August 19, 1974. On August 22, 1974, appellant’s motion to set aside the default judgment was sustained. Almost two years later, on July 7, 1976, respondent’s motion to declare the August 22, 1974 order null and void and the August 19, 1974 judgment final was sustained. The status of the case during this interim period and the reasons for the delay do not appear in the record.

      . Appellant in its brief argues that it is attacking the judgment of August 19, 1974, as irregular pursuant to Rule 74.32, V.A.M.R., and § 511.250, RSMo 1969, and is within the specified three year statute of limitations. We note, however, that appellant failed to challenge the irregularity of the judgment in its motion for rehearing or for new trial as required by Rule 74.32, V.A.M.R.; e. g., State ex rel. Jones v. Reagan, 382 S.W.2d 426 (Mo.App.1964), and may not raise this issue for the first time on appeal, e. g., Schopp v. Continental Underwriters Co., 284 S.W. 808 (Mo.App.1926). At any rate, we do not reach the merits because the appeal must be dismissed.


author: CLEMENS, Presiding Judge.

text:
    Gary Gene WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. 38917.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Gary Gene Williams was convicted of burglary in 1973 and sentenced to ten years’ imprisonment. The conviction was affirmed on appeal. State v. Williams, 521 S.W.2d 29 (Mo.App.1975). Defendant now appeals from the denial of his Rule 27.26 motion following an evidentiary hearing.

At the hearing defendant contended he was denied effective assistance of counsel because his trial attorney failed to contact and present four alibi witnesses. All testimony at the motion hearing was offered by defendant and two of the alibi witnesses, one of whom had been separately convicted of the same burglary. Defendant’s alibi is that at the time of the burglary he was with the witnesses at a house next door. Defendant’s uncles, Ralph Voegtlin and Richard Voegtlin, testified to the alibi and defense counsel’s failure to contact them. The trial attorney was dead at the time of the hearing and the state presented no evidence. The court denied defendant’s motion and made findings of fact and conclusions of law.

Defendant claims the trial court erred in denying his Rule 27.26 motion because evidence on the motion is insufficient to support the trial court’s findings. He alleges these are erroneous because the state offered no supporting evidence to refute the alibi testimony, nor did it show it was a tactical decision at trial not to call the alibi witnesses.

The scope of our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous, Rule 27.26(j), VAMS. The prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence, Rule 27.26(f), VAMS and to prove ineffective assistance of counsel was of such a character as to result in a substantial deprivation of defendant’s constitutional right to a fair trial. Thomas v. State, 516 S.W.2d 761[2] (Mo.App.1974). Counsel is presumed competent and not to be judged incompetent by what in retrospect appear to be errors of professional judgment. Haynes v. State, 534 S.W.2d 552[3] (Mo.App.1975).

Defendant would have us hold that because the findings are contrary to his unre-futed evidence they are erroneous. That is not the law. “In a Rule 27.26 proceeding, the weight of the evidence and the credibility of the witnesses are matters for the trial court, and the trial court may reject testimony offered on behalf of the movant even though there was no contrary evidence.” Bibee v. State, 542 S.W.2d 540[4] (Mo.App.1976).

Applying this rule, we hold the trial court did not err in rejecting the defendant’s evidence as not credible. The evidence consisted entirely of defendant’s self-serving testimony and that of his two uncles, Richard Voegtlin and Ralph Voegtlin. Co-defendant Ralph Voegtlin failed to offer an alibi defense at his own separate trial. Richard Voegtlin did not volunteer his testimony at either trial despite the kinship and his awareness of the arrests. Defendant’s testimony about an alleged statement made to him by his attorney, deceased at the time of hearing, is inconsistent with the trial record. Defendant quoted his counsel as indicating he had failed to obtain the witnesses because he was being “forced to trial” and could not get a continuance. At the hearing, the court noted two continuances had been granted at the request of defendant’s counsel, resulting in a six-week delay. In short, we are confronted with a straightforward question of credibility, which is for the trial court to determine. We defer to those findings. Pickens v. State, 549 S.W.2d 910[6] (Mo.App.1977).

Defendant’s second point is that the trial court’s finding was erroneous because there was no evidence to justify a finding of a tactical decision. Defendant contends the finding must rest on his own testimony at the hearing but an examination shows it is based on the trial transcript. The trial record reflects the following: The apprehension of defendant as he got into a get-a-way car with stolen merchandise and burglar tools in his possession, testimony he had been running from the burglarized premises, and an attempted escape from the police with the aid of a knife. Defendant did not testify at trial. This was the basis of the trial court’s conclusion that a tactical decision was involved.

The choice of witnesses and defense tactics are matters of trial strategy which will not be lightly judged to be erroneous. Williams v. State, 536 S.W.2d 190[5] (Mo.App.1976). We conclude the trial record, combined with the kinship of the uncalled witnesses and Ralph Voegtlin’s conviction for the same crime, sustains the court’s finding “that no self respecting, competent, intelligent attorney experienced in criminal trial work would undertake to offer the alibi movant contends his deceased counsel failed to present or to call as witnesses those persons named by the movant to substantiate it.”

Since defendant’s witnesses were not credible he failed to sustain his burden to show ineffective assistance of counsel. The trial record revealed sufficient evidence to overcome defendant’s objections to the finding of a tactical decision.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward Vincent LAWRENCE, Defendant-Appellant.
    No. 39085.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Steiner & Fenlon, Joseph A. Fenlon, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant appeals from a conviction finding him guilty of burglary in the second degree, § 560.045 RSMo 1969, and a sentence of ten (10) years imprisonment. For reasons herein stated, we affirm.

A hearing was held in chambers as to the competency of eleven-year old Barbara Hassell, the state’s major witness, who was home alone at the time of the burglary. After the hearing, the court found Barbara competent to testify.

On June 13, 1977, at 9:22 p. m., Barbara testified that she heard a pounding on the front door of her apartment. When she looked out the window, she saw three men on the porch. Immediately she called the telephone operator and told her that someone was trying to break in and told her her name and address. Barbara then heard pounding on the back door. When she heard the back door open, she hid behind the rocking chair in the living room. While behind the chair, she peeked around a corner and saw a man in the kitchen whom she later identified as the appellant. The man entered the kitchen and took a step into the dining room. At that time he was attacked by Barbara’s dog. Appellant finally ran out the back door and shortly thereafter the police arrived.

The next day Barbara saw two men at the office of the Audubon Park Apartments, one of whom was the appellant. That evening she went to the Clayton County Jail and identified the appellant in •a lineup.

Barbara testified that on the evening of the crime, the lights were on in the kitchen and living room. From her hiding place behind a rocking chair and the wall, she was unable to see the man in the kitchen. But, when he entered the dining room as the dog tried to bite him she saw him from her stooped position behind the chair.

Barbara testified that to her knowledge the man did not have permission to come into the apartment. She further testified that the dog drove the man into the dining room. While being attacked, the man held his hands between his face and Barbara, but Barbara testified that she could see his face.

John Zinn, a member of the Brentwood police department, testified that he was called to the Audubon Apartment Complex on June 14, 1977, where appellant and another man were being held as burglary suspects. That evening Barbara picked appellant out of the lineup. On cross-examination, Barbara told the officer that there had been a TV set between the rocking chair and the dining room.

The defense provided two alibi witnesses who stated that appellant was with them in his apartment at Audubon Park at the time of the crime.

Appellant makes four points on this appeal. Appellant contends the court erred (1) in denying his motion for acquittal because of an insufficient information and a variance therefrom in that there was a failure of proof as to essential matters alleged in the information regarding ownership of property; (2) in failing to direct a verdict of acquittal because the contradictory statements given by Barbara Hassell showed that she was neither competent nor credible; (3) in failing to direct a verdict of acquittal because the state failed to show that the entry was made with felonious intent; and (4) in failing to give required criminal instruction 2.03 as the first instruction to the jury at the close of all the evidence, as required by criminal rule 20.-02(a) and 20.02(f).

First, the appellant contends that the information charged him with breaking into the dwelling house of Barbara Hassell, with the intent to steal goods owned by the eleven-year old girl. He claims that there was no proof that Barbara Hassell owned such goods. This point is without merit.

The elements of burglary, in the second degree, are: breaking into a dwelling house with intent to commit a felony or to steal, § 560.045, RSMo 1969. The ownership of goods within a building alleged to have been burglarized is not an element of burglary in the second degree. State v. Stuver, 360 S.W.2d 89, 91 (Mo.1962). The law of Missouri only requires that an information for burglary “. . . ‘set out the ownership of the burglarized premises’ and this requirement is satisfied by an allegation of occupancy or possession. State v. Peck, 545 S.W.2d 725, 727 (Mo.App.1977); State v. Rist, 456 S.W.2d 13, 15 (Mo.1970). The need for an averment of ownership is two-fold: (1) To show that the house alleged to have been burglarized was not the dwelling of the accused; and (2) to identify the offense to protect the accused from a second prosecution for the same offense. State v. Rist, 456 S.W.2d at 15; State v. Carey, 318 Mo. 813, 1 S.W.2d 143, 146 (1927). Here the amended information contained an averment of occupancy, satisfying the law in Missouri and fulfilling the two-fold purpose of such law.

Appellant’s second point is that the court erred in failing to direct a verdict of acquittal because the contradictory evidence showed that the witness was neither competent nor credible. We disagree. The test of competency of a child involves four elements, all of which should be present: (1) Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of occurrence to observe and register such occurrence; (3) memory sufficient to retain an independent recollection of the observation made; and (4) capacity to translate into words the memory of such observation. State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 681 (1950); Hildreth v. Key, 341 S.W.2d 601, 609 (Mo.App.1960). The court, upon investigation, of the child’s competency, found that she satisfied all of these requirements and was, therefore, competent to testify. The competency of the child is to be determined by the judge and will only be set aside if there is an abuse of discretion. State v. Jones, supra.

Appellant argues that as a matter of law, the witness did not have sufficient memory to retain independent recollection of observations and that her contradictions destroyed her credibility. This argument fails.

“In order for contradictions and inconsistencies in a party’s testimony to preclude his recovery as a matter of law they must be diametrically opposed to one another with respect to some vital question in the case, Forsythe v. Railway Express Agency, Mo.App., 125 S.W.2d 539 541 (1939); so contradictory and without explanation as to preclude reliance thereon Walsh v. Terminal R. Ass’n of St. Louis, 353 Mo. 458, 182 S.W.2d 607 (1944); so self-contradictory that they rob the testimony of all probative force, Schonlau v. Terminal R. Ass’n of St. Louis, 357 Mo. 1108, 212 S.W.2d 420, 423 (1948); and so glaring as to conclusively show that the party testified untruthfully one way or the other, O’Bauer v. Katz Drug Co., Mo.App., 49 S.W.2d 1065, 1073 (1932). Otherwise the inconsistencies in plaintiff’s testimony are for the jury to resolve.” Atley v. Williams, 472 S.W.2d 867, 869 (Mo.App.1971).

Here Barbara’s testimony was not so inconsistent as to lack probative force. Never did she vacillate from the identification of appellant. From her testimony the jury could reasonably infer that the appellant was the man who had been in the apartment. The conflicts and inconsistencies in the testimony are questions for the jury to decide. State v. Berry, 526 S.W.2d 92, 94 (Mo.App.1975); State v. Small, 423 S.W.2d 750, 751 (Mo.1968); State v. Turnbough, 497 S.W.2d 856, 858 (Mo.App.1973).

Appellant’s third point is that the court erred in failing to direct a verdict of acquittal because the state failed to show that the entry was made with felonious intent since nothing was stolen, nor entry forced, nor testimony that appellant’s presence was without consent. We find no merit in this contention.

Intent may be shown by circumstantial evidence and in the typical burglary prosecution is so shown. State v. Massey, 542 S.W.2d 88, 90 (Mo.App.1976); State v. Faber, 499 S.W.2d 790, 794 (Mo.1973). No lawful motive was shown to explain the appellant’s presence in the apartment. There was sufficient evidence from which the jury could believe that the appellant had an intent to steal. The state has sufficiently proven the intent to steal in a burglary prosecution if the state has introduced evidence showing that the accused has broken and entered a building in which goods, merchandise, or other valuable things are kept. State v. Pauley, 515 S.W.2d 824, 825 (Mo.App.1974).

Appellant argues that the lawful occupiers of the premises were Barbara’s parents who were never named in the information. Barbara, however, was questioned regarding whether appellant had permission to enter the apartment. This testimony, it is argued, is not sufficient to show entry without consent. This contention has no validity. As discussed above, ownership, for the purposes of burglary, means occupancy, State v. Peck, 545 S.W.2d 725, 727 (Mo.App.1977); State v. Rist, 456 S.W.2d 13, 15 (Mo.1970). Barbara was present in the apartment and her testimony that she gave no permission to enter the apartment is sufficient to show that appellant was on the premises without consent.

Appellant’s final contention is that the court erred by failing to give required criminal instruction 2.03 as the first instruction to the jury at the close of the evidence, as required by criminal rule 20.02(a) and 20.02(f). Although we agree that the court so erred, we find the error to be non-prejudicial.

The “Notes on Use” for MAI-CR 2.03 provides the following:

“This instruction, to be given in every case, shall be read to the jury as the first of the instructions given at the close of the case and immediately prior to argument of counsel. Rule 20.02(a).”

Criminal Rule 20.02(e) states: “Giving or failing to give an instruction or verdict form in violation of this rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.” The result of this rule is that not every deviation will have a fatal result. In State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975), the court faced an identical problem. Instruction 2.03 was given out of order in the case with a single, narrow, sharply defined issue. The court held that the change of order in the jury instruction created no likelihood of confusion or misleading of the jury. The facts at hand also involve a narrow issue: whether the appellant was the man who broke into the apartment. The facts at hand are relatively simple. The change in order created little chance that the jury would be misled and we, therefore, find that the error was not prejudicial.

We find that none of the appellant’s arguments have merit. There was sufficient evidence to support the jury’s verdict.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge. McMILLIAN, Judge,

text:
    Marian G. McCLINTOCK, Respondent, v. Robert G. McCLINTOCK, Appellant.
    No. 38297.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Marian G. McClintock pro se.
    Robert G. McClintock pro se.
   CLEMENS, Presiding Judge.

As provided by § 452.345, RSMo. 1969, the circuit court ordered defendant-husband to make his previously adjudged alimony and child-support payments to the circuit clerk as trustee for plaintiff-wife. The order was made without notice to defendant.

On appeal defendant raises a due process challenge to the trial court’s summary action, contending the court deprived him of his right to notice. Due process requires notice and an opportunity to be heard before a person can be deprived of life, liberty or property.

Defendant relies on the landmark due process case of Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347[7] (1950). There, defendant had a verdict and judgment but the trial court on its own motion and without notice vacated defendant’s judgment and granted a new trial. In condemning this and holding the trial court erred in vacating defendant’s judgment without notice the supreme court based its decision on the fact the trial court’s action “affected defendant’s rights” and was “adverse to its interests.”

Hoppe is readily distinguishable. There, the trial court took away defendant’s judgment, a substantial right. Here, there was an unchallenged monetary judgment against defendant. The trial court ordered defendant tó make future payments thereunder to the circuit clerk. The order in no way affected defendant’s obligation to pay; it neither “affected defendant’s rights” nor was it “adverse to his interest.” Due process did not require prior notice.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., dissents in a separate opinion.

McMILLIAN, Judge,

dissenting.

I disagree and would grant defendant notice and an opportunity to be heard. It is true that the trial court’s order in no way affects defendant’s obligation to pay; however, I do not agree that it neither “affected defendant’s rights” nor was it “adverse to his interest.” For example, defendant is now subject to the immediate possibility of contempt proceedings if he fails to make the payments to the circuit clerk. Due process requires at the least that the party whose rights are before the court be afforded notice and an opportunity to be heard. This requirement of minimal procedural due process will not restrict the discretion of the trial court.

In addition, I believe this change constitutes a modification order which cannot be made without prior notice and an opportunity to be heard. For this reason, defendant should have been given notice and an opportunity to be heard before the trial court granted respondent’s motion ordering alimony and child support payments be made to the circuit clerk. Under these circumstances, I would reverse the judgment.

      . “Upon its own motion or upon motion of either party, the court at any time may order that maintenance or support payments be made to the circuit clerk as trustee for remittance to the person entitled to receive the payments.”


author: STEPHAN, Judge.

text:
    MIDWEST LIBRARY SERVICE, INC., a corporation, Plaintiff-Appellant, v. STRUCTURAL SYSTEMS, INC., a corporation, Defendant-Respondent.
    No. 38442.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Bernard A. Barken, St. Louis, for plaintiff-appellant.
    Robert H. Burns, Cyril J. Clancy, Clayton, for defendant-respondent.
   STEPHAN, Judge.

Midwest Library Service, Inc., appeals from a judgment entered upon a jury verdict awarding it $1.00 on its claim for damages for breach of contract. The jury also found for Midwest and against respondent Structural Systems, Inc., on the latter’s counterclaim. Structural Systems did not appeal. We reverse and remand for a new trial. The parties will be referred to by names or as they were designated in the trial court.

Plaintiff is a book wholesaler which contracted with defendant for the construction of an addition to its existing warehouse facilities in St. Louis County. Plans and specifications were to be provided by defendant which is engaged in the business of designing and erecting pre-engineered metal buildings. Plaintiff moved into the addition early in October, 1973.

Problems were encountered with the addition from the beginning. In May of 1973, shortly after construction had begun, one of the foundation walls of the new building buckled and started to collapse; inspection by an independent consulting engineer, a Mr. Jay Lapin, revealed that the problem was caused by the omission of metal tie bars from those walls. Then, about the time plaintiff moved into the addition, leaks were noticed in the roof of the addition and around the guttering which joined the new building with the old one. In November, 1973, about a month after plaintiff had moved in, a heavy rain overflowed the guttering system* spilling into the addition near its juncture with the old building and causing damage to books and supplies stored in that area.

As a result of this overflow, plaintiff again engaged the services of Mr. Lapin, the engineer. Mr. Lapin was asked to check the guttering system and the rest of the addition to determine whether the plans and specifications agreed upon in the contract were satisfied. Based on the findings of that inspection, a reinspection in June of 1974 and a core sampling of the concrete floor taken by a testing laboratory, Midwest filed this action for breach of contract after a number of alleged defects in the building went unremedied by Structural Systems.

In its petition, Midwest charged that defendant breached its contract by constructing the addition in a “defective, unskillful and unworkmanlike manner.” Specifically, it alleged that defendant, inter alia, “designed and installed a defective and inferior guttering system, that it failed to install a vapor barrier underneath the concrete slab of the warehouse, that it failed to provide a four inch rock fill under said slab and failed to install two concrete headwalls, that it failed to adequately fireproof the columns in the building so as to provide a two hour fire rating, and installed a metal inlet instead of concrete, all as required by the contract and specifications.” Midwest sought actual damages of $61,107.23. This figure was composed of $25,307.00 for the alleged defects and omissions in the addition, $26,079.40 for its costs in moving and storing its inventory while the defects were to be remedied and $9,720.83 for the damages to the books and supplies caused by the rain. The prayer was subsequently increased by $12,360.00 to a total of $73,467.23 to cover the cost of moving back into the addition.

Structural denied the essential allegations of the petition and filed a counterclaim for the $7,496.80 balance allegedly still due it under the contract. As noted, the jury returned a verdict for Midwest for $1.00 and found against Structural on its counterclaim.

On this appeal, Midwest claims that the trial court erred when it refused to permit Midwest’s counsel to discuss the issue of damages in detail in the concluding part of the closing argument. We agree and hold that such error warrants a new trial. In the opening part of that argument, plaintiff’s counsel had addressed only the issue of defendant’s liability under the contract, not mentioning either the total amount of damages claimed or any of the component elements of that claim. Defendant’s counsel objected when the attorney for plaintiff attempted in the concluding portion of the argument to discuss the claim of $25,370.00 for defects in the building. That objection was sustained by the trial court.

A plaintiff normally may not, in the second part of his closing argument, introduce an issue which he has not addressed in the opening part. Shaw v. Terminal Railroad Association of St. Louis, 344 S.W.2d 32, 36 (Mo.1961). Nevertheless, a defendant may waive this rule by introducing an issue himself in his closing argument, thereby opening up that issue and allowing plaintiff in the reply part of his argument the opportunity to respond on that point. Sullivan v. Hanley, 347 S.W.2d 710 (Mo.App.1961); Barrett v. Morris, 495 S.W.2d 100 (Mo.App.1973).

Defendant concedes that its counsel did, on several occasions in the closing argument, refer to the amounts plaintiff was claiming. However, this concession is qualified by the contention that such references did not constitute a waiver for the reason that counsel discussed damages only in broad, general terms and that plaintiff was therefore rightly foreclosed from going into a breakdown of the elements of his claim. We cannot agree.

Defendant’s counsel, on three separate occasions in his closing argument, mentioned the total dollar amount of plaintiff’s claim. Twice those comments came in the course of arguments to the effect that plaintiff’s case had focused on minutiae and that the numerous small alleged defects in the building could not possibly support a claim for over $73,000.00 when added together. Furthermore, defense counsel himself discussed one of the elements of that claim, the $9,720.83 sought by plaintiff for rain damage to its books.

We do not believe that plaintiff’s reply to these arguments is properly restricted to the mention of, and refutation of, only the precise damage amount brought up by defendant. The function of the theory of waiver is to permit reply to an issue raised by one’s adversary. The reply must be restricted to that issue, but there is no logical reason to restrict a party to the language in which the adversary frames it. When defense counsel questioned the likelihood that the cost of all the alleged defects could add up to over $73,000.00, plaintiff’s attorney should have been allowed in reply to explain what the elements of that claim were and to show how they could support a claim of that magnitude.

For example, in Sullivan v. Hanley, supra, a personal injury case, plaintiff’s counsel in the opening portion of the argument had discussed only defendant’s liability, not mentioning plaintiff’s injuries. Defense counsel then addressed principally the issue of liability but also commented on testimony that plaintiff’s doctor had seen him only thirteen times after he left the hospital. This, the court said, “certainly” entitled the plaintiff’s attorney to go into the subject of damages in the closing argument. And in Barrett v. Morris, supra, where the plaintiff’s attorney stated during the course of opening argument that he had argued only physical injuries other than brain damage and defense counsel elected to argue that there was no brain damage, it was held that the mention of the figure of $85,000.00 for the first time in the plaintiff’s closing argument did not warrant reversal. At page 105, the court said:

“. . . the fact that defendant’s counsel did make argument to the jury on the issue of damages constituted waiver of any possible objection in this regard and in itself opened the way for plaintiff to argue the question of damages.”

See also Goins v. O’Keefe, 412 S.W.2d 513 (Mo.App.1967).

We, therefore, hold that plaintiff was wrongfully denied the opportunity in its closing argument to discuss the issue of damages and how it arrived at the amount of the prayer.

We will here consider the other allegations of error as they may well reoccur on retrial. In closing argument, counsel for plaintiff noted that defendant had not called as a witness Mr. Robert Ruck, its on-the-job supervisor for the Midwest project, and advised the jury that they could infer from this that Ruck’s testimony might have been unfavorable to defendant. Defense counsel countered in his argument that plaintiff “could have subpoenaed” Ruck as a witness if it was anticipated that Ruck’s testimony would be adverse to defendant. Plaintiff objected on the grounds that Ruck was not “equally available” to it. The objection was overruled and plaintiff assigns this ruling as error, contending that it deprived plaintiff of the “unfavorable inference” to which it was entitled by reason of Ruck’s absence.

Although counsel may, under some circumstances, comment on the failure of his adversary to call a certain witness, such practice is not permissible when the witness is equally available to the party seeking to benefit from the witness’ absence. ■ An employee of one party is not generally regarded as “equally available” to the other. Adam Hat Stores v. Kansas City, 307 S.W.2d 36, 41 (Mo.App.1957). Thus, if there were no other factors in this case relating to the failure of defendant to produce its supervisor of the Midwest project, perhaps plaintiff would have been entitled to its comment and inference. But plaintiff took Ruck’s deposition prior to trial. This fact serves to make Ruck equally available to plaintiff. In the case of Bean v. Riddle, 423 S.W.2d 709 (Mo.1968), a wrongful-death action arising from an automobile accident, plaintiff commented on defendant’s failure to call his father, who had been a passenger in his car. Plaintiff, however, had deposed the father, and the court held, at page 721, that: “In that posture, plaintiff’s knowledge in respect to the testimony Erman Riddle could give was equal to that of defendant . . . ” Therefore, no inference was permissible to plaintiff. See also Lix v. Gastian, 287 S.W.2d 354 (Mo.App.1956), in which the preservation of the testimony of the plaintiff’s stepson in the transcript of an earlier trial of the same case served to make the stepson equally available to the defendant. Since plaintiff had deposed Ruck prior to trial, it was entitled to no inference from defendant’s failure to call him, and defendant’s statement that plaintiff “could have subpoenaed” him was therefore properly allowed.

Midwest next asserts as error the trial court’s refusal to permit cross examination of defendant’s president, Mr. Richard Ortmann, concerning the rejection by an architect and Mr. Lapin of a valley guttering system which defendant had proposed to install on a skating rink. An offer of proof was made that Mr. Ortmann would testify that Mr. Lapin and the architect objected to that type of system “for the same reason . . . that caused the damage in this case.” Plaintiff insists that such cross examination was proper because the witness had been permitted to testify on direct, over objection, that such a system had been used by defendant on several other buildings. A reading of the transcript shows that Mr. Ortmann did so testify in response to one question but that his testimony never touched on the efficacy of the systems installed on the other buildings. Plaintiff’s argument on this point seems to amount to an invocation of the doctrine of curative admissibility, although it is not so articulated. Without exploring that doctrine and the contingencies under which it may arise, suffice it to say that on the present state of the record, the trial court could not be convicted of error for excluding an obvious attempt by plaintiff to inject, through Mr. Ortmann’s testimony, the opinions of Mr. Lapin and an architect that a valley guttering system was not desirable on a skating rink. It may be that on retrial the evidence excluded by the trial court could, in a different setting, be admissible. At this point, we decline to speculate.

Finally, plaintiff contends that the trial court erred in failing to grant a new trial because the jury award of one dollar on a prayer of over $73,000.00 was unsupported by the weight of the evidence and indicated a bias and prejudice on the part of the jury. Plaintiff argues that once the jury determined that respondent was liable under the contract, it was obliged to award real rather than merely nominal damages since defendant had introduced nothing to refute plaintiff’s evidence as to the measure of that liability. We do not agree with plaintiff’s reading of the transcript.

Defendant developed evidence from which the jury could have found that it was not liable at all: that the problems with the guttering system were caused by plaintiff’s improper maintenance in failing to keep it free of leaves and debris; that the defects and omissions in the structure were authorized by a clause in the contract which permitted it “to make minor changes in the work . . . not inconsistent with the purposes of the building.” However, defendant also attempted to minimize any damages which plaintiff may have suffered by repeatedly stressing the triviality of plaintiff’s grievances. From such evidence, the jury could well have found that defendant was liable for having deviated from the contract in one or more respects, but that the damage suffered by plaintiff was inconsequential. “The jury’s broad discretion in fixing the amount of award is conclusive on appeal unless the appellate court can say that the verdict is so shockingly and grossly excessive or inadequate that the amount of the verdict is due to passion and prejudice.” DeArmon v. City of St. Louis, 525 S.W.2d 795, 801 (Mo.App.1975) citing Boehmer v. Boggiano, 412 S.W.2d 103, 110-111 (Mo.1967). In light of all the evidence, it cannot be said that the award of nominal damages was “shockingly and grossly ... inadequate . . . ” The trial court did not err in permitting the award to stand.

Because the trial court erred in limiting plaintiff’s closing argument as to the amount of damages, the case is reversed and remanded for new trial.

STEWART, P. J., and REINHARD, J., concur.

      . Under § 492.410, R.S.Mo.1949, in effect at the time, the transcript could have been “used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause.”

      . We may note parenthetically that, since Ort-mann’s testimony concerning the installation of the system on other structures came in over plaintiffs objection, the doctrine would not apply. State ex rel. State Highway Commission v. Lynch, 471 S.W.2d 261, 266 (Mo.1971); Daniels v. Dillinger, 445 S.W.2d 410, 416-417 (Mo.App.1969). See also Wigmore on Evidence, 3rd Ed., Vol. I, § 15, p. 304.

      . We have examined the cases cited by plaintiff in support of its position on this point and find them readily distinguishable. In each, either the defendant had challenged only the liability, presenting no evidence in mitigation of damages, or liability had been conceded and there was substantial evidence to support real, as opposed to nominal, damages. As an example of the former class of cases cited by plaintiff, see Merriman v. City of Chillicothe, 217 S.W. 637 (Mo.App.1920); as an example of the latter class, see Nance v. Kimbrow, 476 S.W.2d 560 (Mo.1972). In the instant case, defendant vigorously contested both liability and the amount of damages throughout the trial.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie DIXON, Defendant-Appellant.
    No. 38490.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Robert C. Babione, Public Defender, Thomas R. Motley, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul R. Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Henry Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of two counts of murder in the second degree and resultant 20 year sentences to be served consecutively. We affirm.

Some recitation of the evidence is necessary in order to discuss defendant’s points. Seven white youths came to the house occupied by defendant at approximately 9:00 p. m. to purchase drugs from a group of black youths. The seven white youths left. About two hours later, two of the youths returned to purchase more drugs and remained. Approximately two hours later, defendant and one of the white youths, Robert Locke, known as Red, age 14, were in a separate room when they heard the other white youth, Albert Perkins, known as Caveman, age 16, call for help. Upon entering the room where Caveman and a group of at least four black youths were present, they saw that Caveman had been stabbed in the stomach and the knife was still in the wound. Red tried to leave but was stopped by one of the persons in the room. There followed a two hour session of torture, stabbing, cutting and sexual abuse of Red and Caveman. Defendant was present during some, maybe all, of this conduct. The two victims were tied and wrapped in sheets. They were then carried by defendant and four other youths out of the house, down an alley, and were thrown into a sewer. The defendant was identified by a witness hiding in the backyard of defendant’s residence as one of the persons who carried the bodies to the sewer. Defendant admitted to police his presence in the house during the period of the torture, stabbings, cutting and sexual abuse but denied his actual participation in those activities. He did admit to having helped clean up the blood after the bodies were disposed of. He also admitted to the girl friend of a co-participant that “he” (defendant) and “we” had killed two “honkies”. The bodies of the victims were not discovered for two days. There was no medical evidence as to the time of death. Cause of death in each case was from the stab wounds. There was some evidence in defendant’s confession to police that the victims may have been alive shortly before or at the time they were removed from the house.

On appeal, defendant raises two points. The first is that a fatal variance existed between the indictment and the jury instructions. Defendant’s second point is that the court erred in refusing to require the state’s witness who saw defendant and others carrying the bodies from the house to the sewer, to reveal the name of another person who had been present at the scene at an earlier time.

The variance complained of is in the language used to describe the method of inflicting death. The indictment used the terms: “strike, cut, stab, wound and beat.” The instructions hypothesized guilt upon a finding that the victims died as a result of “striking, cutting, stabbing and putting him in a sewer causing injuries from which he died.” The specific objection is to the “putting him in a sewer” language. Defendant has cited several cases involving disjunctive submissions not supported by the evidence or instructions which allowed defendant to be found guilty of some crime other than the one with which he was charged. State v. Lusk, 452 S.W.2d 219 (Mo.1970); State v. Miles, 488 S.W.2d 219 (Mo.App.1972); State v. Shepard, 442 S.W.2d 58 (Mo.banc 1969). We do not find those cases controlling of this one. The instructions here in no way changed the crimes with which the defendant was charged, they added an additional method of inflicting the injuries causing death. The submission was conjunctive and the additional means of death added to the state’s burden. The jury was not permitted to convict on anything less than or different from that which was charged in the indictment. We find no error in the submission and no prejudice to defendant. State v. Daegele, 302 S.W.2d 20 (Mo.1957) [19-21]; State v. Crossman, 464 S.W.2d 36 (Mo.1971) [5, 6].

The witness who was hiding in the yard testified that he met another man in the yard with whom he engaged in sodomy. Both of them then left the area, but the witness returned to look for something he had lost. It was while he was looking for the lost item that he observed the disposition of the bodies. Upon cross-examination, he refused to divulge the name of the other man with whom he had initially been in the yard. The trial court refused to require the disclosure of the other man. Control of cross-examination is largely within the discretion of the trial court, and that discretion is wide. This is particularly true with reference to collateral matters. State v. Johnson, 486 S.W.2d 491 (Mo.1972) [4, 5]. Defendant premises error and prejudice solely upon the basis that revelation of the name might have resulted in calling the unnamed man as a witness to impeach the credibility of the other witness. Simply stated, this is a contention that the question was asked for discovery purposes. We, and apparently defendant, can see no other purpose. Cross-examination during the trial is not the time to conduct discovery. There is no contention made or indication in the record that defendant was not informed before the trial of the identity of the witness who testified or any indication that witness could not have been deposed. We find no error or abuse of discretion in the court’s action in refusing to allow discovery on a collateral matter during the trial.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: KELLY, Judge.

text:
    In re the MARRIAGE OF Richard L. and Jacqulyn BUCHMILLER. Richard L. BUCHMILLER, Petitioner-Appellant, v. Jacqulyn BUCHMILLER, Respondent-Appellant.
    Nos. 38715, 38730.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      London, Greenberg & Fleming, Lawrence J. Fleming, St. Louis, for petitioner-appellant.
    Lloyd A. Palans, Ilona S. Leavitt, Kramer, Chused, Shostak & Kohn, St. Louis, for appellant-respondent.
   KELLY, Judge.

These two appeals from a judgment of the Circuit Court of the County of St. Louis sustaining in part and overruling in part respondent-appellant, Jacqulyn Buchmiller’s motion to compel compliance with a stipulated settlement agreement which had been incorporated into a decree dissolving the marriage of the parties, have, on appeal, been consolidated. For reasons hereinafter stated, we affirm.

The controversy here presented involves the interpretation of paragraph five of the stipulation and its provisions with reference to the rights and obligations of the parties with respect to their marital domicile. Paragraph five of said stipulation reads as follows:

The parties have agreed that the wife shall live in the family home at 7630 Carswold, Clayton, Missouri, until the minor child, Jane Beth Buchmiller, reaches her majority or is emancipated, whichever occurs sooner, at which time the house shall be sold and the profits divided equally. Husband agrees to give wife first option to purchase the property at market value less one-half the amount what a relator would charge for his services, were the property sold to a third party. If said option is exercised, the purchase price is to be paid to husband in a lump sum. Until the aforementioned minor child reaches her majority or is emancipated, whichever occurs sooner, the wife shall bear all of those expenses for the mortgage, taxes and insurance, maintenance and repair of the defects of the property which arise after the date of the filing of this stipulation. The wife shall not be responsible for those repairs to the property which are needed to correct defects that exist on the date of the filing of this stipulation, but shall only be responsible for those repairs that shall be needed to correct defects that arise after the date of the filing of this stipulation.

At this point in the stipulation a method for determining the defects existing on the date of the filing of said stipulation was set out but was lined out in ink and a handwritten insertion entered on the margin of the page of the stipulation which reads as follows:

“Husband can inspect the property once each year upon giving 2 week notice to respondent. Respondent may call upon petitioner to assist in the maintenance and repairs of said property.”

By the next typewritten sentence Mrs. Buchmiller agreed to pay all 1974 personal and real estate taxes; however, this too is lined out in ink and immediately thereafter the following provision, in handwriting, appears:

“The parties agree to equally contribute the cost of the real estate tax commencing in year 1974.”

Respondent Jacqulyn Buchmiller’s motion to compel sought equal contribution from Petitioner Richard L. Buchmiller for the real estate taxes for the year 1975 in the amount of $212.26 and specific performance by the Petitioner of his duties, as she understood them to be under the terms of the stipulation, to correct those defects in the family domicile allegedly in existence as of April 7, 1975, the date on which the stipulation was filed. Respondent listed nine specific defects in her motion which she prayed Petitioner should be required to correct.

Petitioner filed a response and counter-motion. Insofar as said pleading is relevant to the issues on appeal, Petitioner denied any responsibility for the taxes and the repairs, and that Respondent was entitled to the relief sought.

Rather than present the oral testimony of the parties, a stipulation of what their testimony would be, had a hearing been held, was filed with the trial court and certain exhibits were offered into evidence subject to pertinent objections noted in said stipulation, and copies of same were attached to said stipulation.

According to the stipulation aforesaid Respondent understood that under the stipulation filed in and incorporated into the decree of the Circuit Court dissolving the marriage of the parties both parties were to share the costs of the real estate taxes commencing in 1974 and continuing each year thereafter until such time as the home was sold. With respect to the duty to repair defects in the home, she had compiled a list of items in need of repair at the time of the filing of the stipulated settlement and these she understood the Petitioner was responsible for repairing.

Petitioner, on the other hand, understood that the stipulation settling their marital rights in the real estate obligated him to contribute only to the real estate taxes for the year 1974 and did not obligate him to repair any defects in the home.

The trial court sustained Respondent’s motion to compel the Petitioner to make the repairs specified in the stipulation of facts submitted on the motion but denied Respondent’s motion to compel Petitioner to contribute equally to the real estate taxes for 1975 and also denied her motion to assess attorney’s fees in her behalf for services rendered by her attorney in the handling of her motion to compel.

Respondent has appealed the trial court’s judgment that Petitioner was not required to contribute to the real estate taxes for 1975 and the denial of her motion for attorney’s fees. Petitioner appealed from the judgment of the trial court granting specific performance of that portion of the decree requiring that he pay for the making of the repairs to the home sought by Respondent in her motion.

Our scope of review in this court tried action is subject to the provisions of Rule 73.01.3(a) V.A.M.R. and the construction of that Rule in Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976), i.e. the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. The Supreme Court in Murphy v. Carron, supra, also admonishes the appellate courts of Missouri that we should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.”

We shall initially dispose of Respondent’s contentions. Her first argument is that the trial court’s decision is against the weight of the evidence and ignored the rule of construction that a handwritten clause will prevail over a typewritten clause in a contract. She further contends that the handwritten clause — “the parties agree to equally contribute the cost of the real estate tax commencing in the year 1974”— is clear and unambiguous and the trial court erred in making a finding contrary to the common meaning of the terms and in considering Petitioner’s understanding of the provision because evidence of his understanding was extrinsic to the terms of the agreement.

The rule that a handwritten clause takes precedence over a typewritten clause applies only where there exists an irreconcilable conflict between the handwritten and the typewritten clauses. Belt Seed Co. v. Mitchelhill Seed Co., 236 Mo.App. 142, 153 S.W.2d 106, 110[5] (1941). Furthermore, whenever possible, the law favors the reconciliation of clauses within a contract which appear contradictory. Belt Seed Co. v. Mitchelhill Seed Co., supra. We are of the opinion that the handwritten clause can be reconciled with the typewritten clause placing the responsibility for payment of all expenses for mortgage, taxes and insurance on the Respondent by holding that the handwritten clause modifies the Respondent’s duties with respect to the payment of real estate taxes so that she is required under the terms of the stipulation, as amended, to pay taxes on the real estate from 1975 forward, and that Petitioner is not liable for any contribution towards payment of same. In so holding, the rule stated in Surface v. Ranger Insurance Company, 526 S.W.2d 44, 48[4] (Mo.App.1925), that where one clause is general and inclusive in nature and one is more limited and specific, the latter operates “as a modification and pro tanto nullification of the former,” is observed.

Respondent contends that this clause is unambiguous; we disagree. “Ambiguity” has been defined as “duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument.” Tenney v. American Life and Accident Insurance Company, 338 S.W.2d 370, 371 (Mo.App.1960). Despite Respondent’s contention that the meaning of the word “commencing” as used in the clause is clear, it is subject to more than one interpretation. As used in the context of the clause it could refer to the act of contributing equally to the real estate tax for the year 1974 or to the act of contributing to the real estate taxes for each year, commencing with the year 1974, and for each year thereafter. Where an ambiguity exists and the meaning is in dispute, the contract is to be given a construction which will reflect the real intention of the parties, and, in doing so, the court may consider the circumstances surrounding the execution of the contract and the interpretation given to the contract by the parties thereto. Celatron, Inc. v. Cavic Engineering Company, 432 S.W.2d 794, 798[2] (Mo.App.1968).

As a final consideration, we glean from the record that the stipulation was prepared by Respondent’s attorney, and where other rules of statutory construction fail, ambiguities appearing in a contract must be construed strongly against the party whose counsel prepared the contract or agreement. Katz Drug Co. v. Kansas City Power & Light Co., 303 S.W.2d 672, 680[6] (Mo.App.1957); Hamilton Fire Ins. Co. v. Cervantes, 278 S.W.2d 20, 24[3] (Mo.App.1955). This latter rule of construction, we believe, is applicable to the stipulation filed by the parties in their dissolution of marriage action and the judgment of the trial court in this action to compel compliance therewith does not suffer from the infirmities enumerated in Rule 73.01.3(a) Y.A.M.R. as grounds for a reviewing court to upset the judgment in a court tried case.

We rule this Point against Respondent.

With respect to Respondent’s contention that the trial court erred in its refusal to assess attorney’s fees against the Petitioner we find no error which would authorize us to reverse and remand the judgment on those grounds. Section 452.-355 RSMo.Supp.1974 permits the trial court in its discretion to order a party to pay attorney’s fees in dissolution cases after considering all relevant factors including financial resources. Respondent, at this hearing, presented no evidence to establish her need to have the expenses of this litigation borne by Petitioner. There must be some evidence presented on this point in order to authorize the trial court to order payment of the Respondent’s attorney’s fees. Ortmann v. Ortmann, 547 S.W.2d 226, 231[8] (Mo.App.1977).

We likewise rule this contention against Respondent.

Petitioner’s assignment of error “The circuit court erred in sustaining that portion of respondent’s motion requiring petitioner to make repairs to the family residence to remedy those defects existing on the date of the filing of the stipulation.”—is not in compliance with Rule 84.04(d) V.A. M.R. and therefore preserves nothing for this court to review. It utterly fails to state in the Points Relied On “wherein and why” the actions or rulings of the trial court sought to be reviewed are claimed to be erroneous. State Highway Commission v. Heim, 483 S.W.2d 410, 415[17] (Mo.App.1972). Therefore, this court owes him no duty to search the Argument portion of his brief to ascertain those reasons. Griffith v. State, 504 S.W.2d 324, 327[3] (Mo.App.1974).

Affirmed.

GUNN, P. J., and WEIER, J., concur.

      . The parties shall hereinafter be referred to as Respondent and Petitioner, the respective positions they occupied in the dissolution proceedings.