author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri at the relation of Irwin H. SCHMITZ, Plaintiff-Appellant, v. CITY OF ST. LOUIS, and John Poelker, Mayor of the City of St. Louis and William J. Wilson, Director of Department of Streets of the City of St. Louis, Defendants-Respondents.
    No. 38120.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 5, 1977.
    Motion for Rehearing or for Transfer Denied May 24, 1977.
    Application to Transfer Denied July 11, 1977.

      John D. Connaghan, St. Louis, for plaintiff-appellant.
    Jack L. Koehr, City Counselor, Judith Anne Ronzio, Asst. City Counselor, St. Louis, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Irwin H. Schmitz, a resident of the Shaw District, an area in the City of St. Louis bounded by Shaw, Tower Grove, Magnolia and Grand Avenues, sued the city, mayor and director of the department of streets, to have an ordinance declared void, and to secure a judicial declaration that barriers erected at designated intersections constitute a nuisance and to have the court order their removal and restore previously existing traffic regulations in the area, etc. Eight other residents of the area intervened as parties plaintiff. The court found against plaintiffs. Plaintiff Schmitz has appealed.

The trial court’s findings of fact, incorporated in appellant’s brief as his statement of facts and agreed to by respondents, cannot be improved upon and are adopted by this Court as the facts of the case, as follows:

On or about March 1, 1975, defendant William J. Wilson, the Director of the Department of Streets of the City of St. Louis, in furtherance of a comprehensive traffic pattern program for the area bounded by Shaw, Magnolia, Tower Grove, and Grand Avenues, erected barricades on certain thoroughfares within the area and designated certain streets for one-way traffic. This action was taken by the director pursuant to Section 821.060, Revised Code of the City of St. Louis, as amended by Ordinance No. 56455, approved March 7,1973. As amended, the ordinance provided that any emergency and temporary regulations made by the traffic commission would remain in full force and effect until modified or set aside by the commissioner or by the Board of Aldermen.

Plaintiffs, residents of the affected area, filed an action seeking, in effect, to have the barricades removed and the one-way street designations set aside, to have the ordinance declared unconstitutional as a delegation of legislative authority and to permanently enjoin the City from enforcing the traffic pattern program. The original petition alleged that § 821.060 as amended, constituted an unconstitutional delegation of legislative power to the Director of the Department of Streets and that the action taken pursuant thereto was unlawful and further alleged that plaintiffs were caused to travel greater distances at great expense thereby endangering their lives.

On November 21, 1975, the Board of Aldermen of the City of St. Louis enacted Ordinance 57087, entitled “An ordinance pertaining to the establishment and changes in one-way street patterns in the Shaw Neighborhood area and authorizing the Director of Streets to install barricades to effect the closing and/or diverting of traffic at certain intersections and containing an emergency clause.” The ordinance was signed and approved by the Mayor on December 11, 1975. It covered the same geographical area and adopted most of the regulations of the Director’s comprehensive traffic pattern program, although certain one-way streets were eliminated as were some of the barricades. However, the ordinance expressly authorized the installation of barricades at the intersection of Flora Place and Tower Grove Avenue to restrict the flow of vehicular traffic and the installation of traffic diverters at two intersections to control the direction of vehicular traffic.

The barricades and traffic diverters consist of metal posts imbedded in the surface of the street linked by heavy chain and they effectively prevent the passage of vehicular traffic. The comprehensive traffic pattern plan was adopted after several public meetings, and modifications of the plan were made from time to time. At the time of the Circuit Court’s ruling, all traffic signs, signals, devices, barricades, one-way streets, and regulations in effect in the pertinent geographical area were in conformity with the specifications of Ordinance No. 57087.

Subsequently, plaintiff Schmitz filed his second amended petition, alleging that Ordinance No. 57087 was in direct violation of § 229.030, RSMo 1969 and that the enactment of said ordinance was in excess of the constitutional limitation of power granted to the City of St. Louis by Article YI, § 19(a) of the Missouri Constitution, and in excess of the power granted to the City of St. Louis by § 304.120, RSMo 1969, and that the barricades authorized by said ordinance constituted a nuisance per se, and should be removed.

Thereafter, plaintiffs and defendants filed motions for summary judgment, each side praying for judgment as a matter of law, as there was no genuine issue as to any material fact.

The Court denied plaintiffs’ motion for summary judgment, and sustained defendants’ motion for summary judgment, and issued its findings of fact, conclusions of law denying plaintiffs any relief.

Section 229.030, RSMo 1969 provides: “Public roads shall be cleared of all obstructions therein that hinder or interfere with travel or traffic thereon, * *

Section 304.120 2., RSMo 1969 provides: “Municipalities, by ordinance, may: (1) Make additional rules of the road or traffic regulations to meet their needs and traffic conditions; (2) Establish one-way streets and provide for the regulation of vehicles thereon; * *

Section 82.190, RSMo 1969 provides: “Such city shall have exclusive control over its public highways, streets, avenues, alleys and public places, and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.”

Section 71.010, RSMo 1969 provides: “Any municipal corporation in this state, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.”

The first question is whether the ordinance violates § 229.030. Appellant contends that by passing § 229.030 the General Assembly preempted the whole field relating to obstruction of public roads and has eliminated any action by municipal governments on this subject, and therefore as long as an area is a public road no obstruction can be placed thereon which will interfere with or hinder traffic; that the barricades not only interfere with and hinder but completely eliminate traffic over and along the points where erected, and that these barricades may not be approved on the ground that they are traffic control devices like traffic islands and diverters (which may be “negotiated around” and which facilitate traffic) because they eliminate traffic and completely prevent passage of automobiles.

The barricades are obstructions and they not only hinder and interfere with but also literally eliminate traffic at the points where they are erected. In determining whether the ordinance violates § 229.030, however, we are not confined to a literal, mechanistic interpretation of the statute without regard to other pertinent statutory and charter provisions. Our duty is to ascertain the legislative intent from a consideration of all applicable statutes relating to the subject. The City of St. Louis is empowered by Article I, Section 1(14) of its charter “To establish * * * streets * * * and regulate the use thereof.” Subsection 35 of Article I, Section 1 thereof provides: “Incidental powers — To exercise all powers granted or not prohibited to it by law or which it would be competent for this charter to enumerate.” Section 82.190, applicable to charter cities, of which the City of St. Louis is one, provides that the city shall have exclusive control over its public streets, avenues and places. Section 304.-120(2) gives the city broad powers of regulation over the streets and traffic thereon and specific power to make additional rules of the road or traffic regulations to meet the city’s needs and traffic conditions and to establish one-way streets and regulate traffic thereon. “It is abundantly clear that the City of St. Louis has full police power to regulate and control all traffic on its streets * * Automobile Club of Missouri v. City of St Louis, 334 S.W.2d 355, 363[9] (Mo.1960). In the exercise of these powers the city has established a comprehensive traffic plan for the area in question. The legislative purpose — the public policy involved — is stated in the title of the ordinance: “An ordinance pertaining to the establishment and changes in one-way street patterns in the Shaw Neighborhood area and authorizing the Director of Streets to install barricades to effect the closing and/or diverting of traffic at certain intersections * * The implementation of the plan requires as a practical matter that the flow of traffic be changed and passage of traffic prevented at the designated places where the barricades are erected. This necessarily changes the habit patterns of all motorists customarily using these streets, especially the residents of the Shaw District living nearby. Personal inconvenience inevitably results. Some rerouting or circuity of routing is involved. In no case, however, is it demonstrated that any motorist, resident or nonresident of Shaw District, has been deprived of access to any point in the area covered by the plan, or for that matter to any area, public street or highway in the city.

The residents of Shaw District are entitled to reasonable access to the general system of streets, see Wilson v. Kansas City, 162 S.W.2d 802 (Mo.1942), but plaintiffs have not shown that they have been deprived of this right, or that they have suffered inconvenience or damages different in kind (although perhaps different in degree) from that suffered by the general public. The barricades affect all of the traveling public in the same manner. It is generally recognized that under a proper delegation of authority a city has the power to promulgate or enforce traffic regulations in the general public interest and to install regulatory devices which merely impose some circuity of route, even though they interfere to some extent with access or compel circuity of route. Anno: Abutter’s Access-Traffic Regulation, 73 A.L.R.2d 689, 692. While none of the plaintiffs claims to be an abutter, even an abutter’s right to access is subject to reasonable restrictions under the police power in protecting the public and facilitating traffic, and does not include the right to travel in any particular direction, or upon any particular part of the public highway right of way, or to have the traffic move in the same direction or to be protected against a diversion of traffic. State ex rel. Highway Commission v. Meier, 388 S.W.2d 855 (Mo.banc 1965). Neither an abutter, Kansas City v. Berkshire Lumber Co., 393 S.W,2d 470 (Mo.1965), nor a resident of an improvement district (whose rights are no greater than those of an abut-ter), can complain of street improvements that facilitate travel over the streets. He must anticipate that improvements will be made and that changes in the mode of travel will occur, and adapt to these changes. The barricades are not shown to be “obstructions * * * that hinder or interfere with travel or traffic” on the streets, within the meaning of § 229.030, taken in conjunction with §§ 82.190 and 304.120. On the contrary, the barricades appear to be designed to facilitate orderly travel through the Shaw Neighborhood pursuant to an overall traffic control program calculated to enure to the benefit of the traveling public. The inconvenience suffered by plaintiffs is not actionable. See and compare Rude v. City of St. Louis, 93 Mo. 408, 6 S.W. 257 (1887). The circuit court did not err in finding that the ordinance does not violate the statute.

The next question is whether in erecting these barricades the city exceeded the power granted to it by § 304.120. The authority to make rules of the road and regulate traffic necessarily carries with it the authority to implement that power by erecting or installing tangible, physical devices to inform and warn the traveling public of the existence of such rules and regulations and to guide and direct the public in complying therewith. Such physical devices may take the form of signs, insignia, arrows, barrels, posts, islands, barricades, etc. A barricade is a “traffic control device” within the definition contained in § 820.150, Rev.Code City of St. Louis: “All signs, signals, markings and devices placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic.” The circuit court did not err in failing to find that the barricades were in excess of the city’s authority under § 304.120.

Appellant’s separately stated third and fourth points are that the court erred in finding that § 82.190 conferred upon the city the power to erect barricades upon its public streets; that this section must be construed in the light of § 71.010; that when so construed, the city’s authority is limited to the regulation of traffic and does not extend to the elimination of traffic or the obstruction of the public roads contrary to § 229.030, and therefore the court erred in failing to apply § 71.010 and in failing to find that the ordinance conflicts with § 229.030. These points are essentially the same as the points previously asserted. Our previous analysis demonstrates that there is no lack of conformance between the ordinance and § 229.030.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    Irwin A. BRUEGGEMANN, Petitioner-Respondent, v. Erma Glen BRUEGGEMANN, Respondent-Appellant.
    No. 36374.
    Missouri Court of Appeals, St. Louis District, En Banc.
    April 5, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Robert E. Morley, O’Fallon, for respondent-appellant.
    Hanks, Taylor & Suddarth, W. Morris Taylor, Clayton, for petitioner-respondent.
   McMILLIAN, Judge.

The opinion of April 6, 1976, handed down in this case has been withdrawn since the court en banc sustained the motion for rehearing and the cause was reargued and resubmitted on June 11, 1976, before an expanded panel of the court. •

Erma Brueggemann appeals certain provisions of a decree of dissolution entered under the New Dissolution of Marriage Act. Neither party contends the marriage was other than irretrievably broken nor challenges those portions of the decree relating to child custody, visitation and division of the marital property. Appellant, however, asserts that the court erred in (1) finding that she had sufficient property to provide for her reasonable needs, was able to support herself by appropriate employment and was, therefore, not entitled to an award of maintenance; (2) granting $150 per month as child support which award she contends was inadequate; and (3) failing to award the full amount of her claimed attorney’s fees.

At dissolution of this 31-year marriage, the court granted appellant custody of one minor child born November 11, 1960, and $150 per month for child support. By division of the marital property, appellant received the marital home valued at $20,000 to $25,000; a $1,000 life insurance policy with a cash value of $325; two cemetery lots valued at $1190 subject to a $325 debt; checking and savings accounts of about $700; a 1973 Buick subject to debt of approximately $2700, and all of the household furnishings remaining in the home. Respondent received sole possession of a car valued at $2500; life insurance policies with a cash value of $3,000; his checking and savings accounts amounting to approximately $1,000 to $1,400 and the sole right to his retirement annuity fund available at the age of 68 which, at the time of trial, had a balance of more than $19,000. Respondent was ordered to pay off the house mortgage indebtedness of $3,400.

The trial court found an award of maintenance to be unjustified, noting that:

“. . . the court further finds that having heard evidence presented by both parties concerning the conduct of each party to this proceeding that there was not sufficient evidence to justify any preference to one party or the other party relating to the division of personal property, or to justify a period of temporary support in the form of maintenance to either party, each party having given the other sufficient indignities to cause a dissolution of the marriage; the court further finds that both Petitioner and Respondent are well and of good health and able to work and in fact, that both Petitioner and Respondent are employed full time at present. . . .”

At the time of the trial, both parties were in their early fifties. Three children had been born of the marriage. Only one child remained unemancipated, a son born November 11, 1960. For most of the 31 years of the marriage, the wife had stayed at home to supervise the children. Approximately six years before the dissolution, the wife became employed as an insurance clerk at a savings and loan institution. The ostensible motivation for obtaining this employment was to “help with the children’s college expenses.” As a result of surgery in the year before the dissolution, appellant missed two and a half to three month’s work but has missed very little time since returning to work. She experiences some high blood pressure which is controlled by medication. Every two weeks appellant receives gross pay of $250.17 and net take-home pay of $189.94. Her income statement filed with the trial court stated approximately $5600 as net income for 1973. She participates in a thrift savings plan to which both she and her employer contribute. The wife estimated that over $300 had accumulated in this fund.

The husband had been employed for approximately 27 years at St. Louis University. At the time of trial, he directed the school of radiology of the orthodontic section of the university. Including a raise received just prior to the trial, the husband earned for these services gross pay of $1333.31 per month and net pay after deductions of $861.00 per month. For some years, he had supplemented this income with fees received for consultation on radiology techniques. The pre-tax income from this consultation practice was approximately $3000 per year. The husband testified, however, that this additional income would “decrease considerably” due to the university’s acquisition of new lamino-graphic equipment. The husband participated in a pension plan at the university. At the time of trial, the husband’s interest in the plan was valued at approximately $19,000. He testified that no money could be received under the plan until he became 68 years old in 1988.

Both parties filed expense statements in the trial court. The wife claimed expenses of $10,325 per year for herself and the minor child. The husband claimed that his expenses totalled approximately $8600 per year.

The remainder of the testimony at trial consisted of charges and countercharges of misconduct. We do not recount this testimony because we agree with the trial court that the testimony does not justify any preference for either party in terms of the provisions of the dissolution decree.

Our review in this court-tried case is circumscribed by the principle that:

“. . . 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.”

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, we affirm the actions of the trial judge in this close case. However, in light of the procedural course of this case and the current dearth of judicial interpretations of the still new dissolution act, we take this opportunity to briefly analyze the portions of that act involved in the present case.

Maintenance — Section 452.335 now controls questions of maintenance in dissolution proceedings. By the statute the trial court is directed to make provision for the reasonable needs of the spouse seeking maintenance. Subsection 1 of the statute indicates that, if possible, such reasonable needs are to be met by the income of the spouse seeking maintenance and the trial court’s division of property. Where the combination of these two financial sources is inadequate to provide for the reasonable needs of the spouse seeking maintenance, an award of maintenance may be made to raise the spouse’s financial status to the reasonable needs level. The amount and duration of any such award are determined in light of the non-exclusive factors listed in subsection 2 of the statute.

To logically proceed under the statute, the trial judge must make a threshold determination of the reasonable needs of the spouse seeking maintenance. Only then can the judge know whether any maintenance is necessary. The difficulty is that the statute seemingly offers no guidance to the trial judge in making this determination. In our opinion, the term “reasonable needs” must be defined in terms of the policies embodied in the new dissolution law.

Section 452.335 of the Act signals marked departures from the prior law. Maintenance may be granted either spouse as contrasted with the traditional “alimony-for-the-wife only” concept. Factors relating to fault during the marriage are eliminated, except for consideration of the conduct of the party seeking maintenance, evincing a legislative intent to remove any punitive quality as to the party providing maintenance. Specification in the statute of the earning capacity of the spouse seeking maintenance and the division of property as the principal means of provision for the reasonable needs of the spouse seem to reflect a legislative intent to avoid, if possible, the imposition of continuing financial obligations to the spouse seeking maintenance. There is a new emphasis on the self-sufficiency of both parties following the dissolution, see In re Marriage of Neu-bern, 535 S.W.2d 499, 503 (Mo.App.1976).

The emphasis on self-sufficiency does not, however, require us to totally ignore the fact that a marriage did exist. In many ■marriages by tacit or express agreement, the wife remains at home and cares for the children and foregoes her opportunity to develop a career or acquire job experience. Where such a spouse has been out of the job market for extended periods, an independent determination of her appropriate lifestyle and earning capacities may be difficult or impossible. In such a case it may be proper for the court to place greater emphasis on the lifestyle enjoyed during the marriage, the duration of the marriage and other traditional factors. At least two of the factors enumerated in subsection two of the statute direct the court to consider the circumstances of the marriage in computing any maintenance award necessary to raise the spouse’s financial status to the reasonable needs level. Consideration of the duration of the marriage, § 452.335, subd. 2(1)-(4) and the standard of living established during the marriage, § 452.335, subd. 2(1)-(3) recognizes that the earning capacity of either spouse is properly considered as a partnership asset.

We are not suggesting a mechanical approach by which the standard of living of the parties is determined and then divided by two. Such an approach would produce results contrary to the results in other Missouri cases, e. g., Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975); Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976). Unlike in pre-dissolution cases, where alimony was awarded to “ ‘. . . enable her [the wife] to live according to the station in life which she enjoyed when the decree of divorce was granted . . .Shilkett v. Shilkett, 285 S.W.2d 67, 71 (Mo.App.1955) and Reeves v. Reeves, 399 S.W.2d 641, 650 (Mo.App.1966), “reasonable needs” as used in the statute does not automatically equal the standard of living established during the marriage, cf. Butcher v. Butcher, 544 S.W.2d 249, 254 (Mo.App.1976). Reasonable needs as used in the statute is a relative term. In a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as an important guide in computing the spouse’s reasonable needs. In a very practical sense it is frequently the best evidence of what the parties have together determined their “reasonable needs” to be.

Section 452.335 specifically directs the trial court to attempt to satisfy this goal of provision for the reasonable needs of the spouse seeking maintenance by a consideration of the earning capacity of the spouse seeking maintenance and the division of property. Under the Missouri statute and the Uniform Marriage and Divorce Act upon which it is based, the division of property is emphasized as “the primary means of providing for the future financial needs of the spouses,” Uniform Laws Annotated, Vol. 9 at 457 (1973). In terms of an award of property replacing an award of maintenance, however, the focus of our statute seems more specifically on income-producing property, see Nixon v. Nixon, 525 S.W.2d 835, 838 (Mo.App.1975). None of the property set off to the wife in the present case could readily be characterized as income-producing cf., In re Marriage of Neubern, supra (no award of maintenance; wife awarded couple’s liquor store business). Any property awarded to a respective spouse, pursuant to § 452.330, V.A. M.S., of course, would affect that spouse’s ability to provide for his reasonable needs in the sense of obviating any need to acquire a substitute. For example, the wife in the present case was awarded the previously shared residence of the parties and all household furnishings. In addition, the division of property might necessitate a re-computation of the expenses claimed by each spouse in their income and expense statements which are filed in the trial court before the trial commences.

Under subsection 1 of the statute, even if there is insufficient property to satisfy reasonable needs, an award of maintenance can still be denied if the spouse seeking maintenance can support himself or herself through “appropriate employment.” “Appropriate employment” is undefined in the statute or in any Missouri ease. The comments to Section 308 of the Uniform Marriage and Divorce Act suggests that the employment should be “appropriate to his or her skills and interests,” Uniform Laws Annotated, Vol. 9 at 494 (1973). We think that this emphasis on an affirmative obligation on the part of the spouse seeking maintenance to seek employment reflects one of the most important changes brought about by the dissolution law, see Ruhland, Dissolution of Marriage under Missouri’s New Divorce Law: Maintenance and Support, 29 Jrnl.Mo.Bar 516 (1973).

This new emphasis has been reflected in our court’s approval of awards of rehabilitative maintenance, e. g., Nixon v. Nixon, supra. In the present case, the “appropriateness” of the wife’s employment was not contested by the husband. We assume that the trial judge concluded that an award of rehabilitative maintenance, that is, a temporary provision for maintenance until such time as the spouse acquires additional training, was inappropriate in light of the age of the wife and her previous employment history.

When we apply the foregoing analysis to the facts of the present case, we are convinced that the trial judge properly denied any award of maintenance. Based on the income and expense statements filed in the trial court, the wife had regular income in 1973 of approximately $5600 and claimed yearly expenses for herself and her child of $10,300. Solely for the purposes of analysis, we will assume that these incomes and expense statements represent the reasonable needs of the parties. Of the wife’s claimed expenses, $114 per month was attributable to “rent or mortgage or agreement of sale, including monthly pro rata of property taxes, insurance, etc. . . .’’By the trial court’s order, the husband was charged with responsibility for the house payments. The wife’s claimed house expenses should then decline to some extent. In addition, the wife’s “income” was increased by the trial court’s order that the husband pay $150 per month for child support. The gap between the wife’s claimed expense and her available income is thus further decreased. If we eliminate the $114 per month house expense and add in the $150 per month child support, the wife’s claimed expenses total approximately $8900 per year as contrasted with income of approximately $7400 per year.

Balanced against the wife’s expenses, the husband’s income and expense statement asserts expenses of approximately $8600 per year. To this amount should be added the $1800 per year to be paid as child support. The result is claimed expense to the husband of $10,400 per year. The income of the husband is somewhat uncertain. Including a raise received just prior to trial, the husband’s net income derived from his teaching job at St. Louis University was approximately $10,300 per year. For a few years prior to the trial, the husband had also received a pre-tax income of approximately $3,000 per year from a consultation service. At trial, the husband testified without objection or rebuttal that this consultation income would “decrease considerably” in the immediate future due to the university’s acquisition of its own lamino-graphic equipment. Omitting the consultation income, the husband’s claim expenses equal or exceed his income. The statute expressly directs the trial court to consider “[t]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance”, Section 452.335, subd. 2(2)-(6). We recognize that after a dissolution, the claimed needs of the parties may need an adjustment. At the same time, we believe that the trial judge attempted to adjust the needs of the parties in terms of the division of property. The wife was allotted the family home free of debt and a substantial portion of the family property. As we have noted, at least this property obviated the necessity of acquiring a substitute. Conversely, the husband must now bear the expense of providing alternative accommodations.

The trial court was confronted with the situation of a couple of only moderate means. We believe that the trial judge ably and carefully drafted an order tailored to the unique circumstances of this case as the facts existed at the time of trial. From our limited appellate perspective we cannot condemn the trial judge’s actions.

Appellant’s second claim of error is that the court should have awarded an amount greater than $150 per month for the support of the remaining minor child of the marriage. She contends the only evidence presented to the court showed a need for $183 per month for support of the child. Section 452.340 provides, in part, that, “. . . the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support . after considering all relevant factors in including: (1) The father’s primary responsibility for support of his child; (2) The financial resources of the child; (3) The financial resources of the custodial parent; (4) The standard of living the child would have enjoyed had the marriage not been dissolved; (5) The physical and emotional condition of the child, and his educational needs; and (6) The financial resources and needs of tne noncustodial parent.” (Emphasis added.) It is apparent under the Act that while support of the minor children remains primarily the obligation of the father, the mother may also be called upon to provide support where she has the ability to do so. We have long held that the award of child support is a matter properly within the sound discretion of the trial court. Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975); S_ v. S_, 514 S.W.2d 1, 8 (Mo.App.1974); Fugate v. Fugate, 510 S.W.2d 705, 706 (Mo.App.1974). And subject to consideration of all relevant factors including those catalogued in § 452.340, this rule adheres today.

Here we cannot say the award of $150 per month for child support was an abuse of discretion, in view of the mother’s present financial status, since the father was required to deed the marital home to the custodial mother, free of mortgage, together with other marital property.

Finally, appellant complains of the court’s failure to award the full attorney’s fees requested. Section 452.355 of the Act provides: “The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney’s fees . . . .” (Emphasis added.) Appellant was awarded $1,000 in attorney’s fees, as against a claimed need of approximately $1600. By its terms, the statute does not entitle a party to full costs and attorney’s fees, but to reasonable amounts considering the relative financial condition of both parties. Such an award is in the discretion of the trial court and we review only for abuse of discretion. Specking v. Specking, 528 S.W.2d 448, 452 (Mo.App.1975); S.G.E. v. R.L.J., 527 S.W.2d 698, 703 (Mo.App.1975) (citing cases); Nelson v. Nelson, 516 S.W.2d 574, 581 (Mo.App.1974). Under the evidence we find no abuse of discretion in the award of attorney’s fees.

The judgment of the trial court is affirmed.

SMITH, CLEMENS, KELLY, WEIER, STEWART and RENDLEN, JJ., concur.

      . Section 452.300 through 452.415, Ch. 452, RSMo 1969 as amended, Laws 1973, V.A.M.S., effective January 1, 1974.

      . Section 452.335 Maintenance order
      “1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
      (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
      (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
      “2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
      (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
      (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
      (3) The standard of living established during the marriage;
      (4) The duration of the marriage;
      (5) The age, and the physical and emotional condition of the spouse seeking maintenance;
      (6) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
      (7) The conduct of a party seeking maintenance during the marriage. Laws 1973, p. 470, § 8, effective Jan. 1, 1974.”

      . In the only discovered cases in other jurisdictions dealing with whether to make an award of maintenance under a statute almost identical to Missouri’s, the courts identified the marital standard of living as a principal factor in measuring “reasonable needs.” Sharp v. Sharp, 516 S.W.2d 875, 877 (Ky.1974); Casper v. Cas per, 510 S.W.2d 253, 255 (Ky.1974). The jurisdictions with statutes comparable to Missouri’s, based on the Uniform Marriage and Divorce Act are Arizona, § 25-319, Colorado, § 14-10-114, Kentucky, § 403.200 and Montana, § 48-322.


author: GUNN, Judge.

text:
    Judith RIGDON, etc., Plaintiff-Respondent, v. SPRINGDALE PARK, INC., Defendant-Appellant.
    No. 37513.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 5, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for defendant-appellant.
    Charles J. McMullin, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Plain tiff-respondent was injured diving into defendant-appellant’s public swimming pool. In the trial on plaintiff’s cause of action for damages, the jury returned a verdict for the defendant. The trial court sustained plaintiff’s motion for a new trial on the ground that defendant’s contributory negligence instruction misstated the law. Defendant has appealed the trial court’s ruling. We find that the contributory negligence instruction imposed a duty on plaintiff not required by law; we affirm the order granting a new trial.

According to the evidence, the plaintiff with members of her family and her fiancé went to defendant’s public swimming pool in Jefferson County for a summer’s day of fun — a day ending in contretemps for plaintiff. Upon entering the pool area some of the young children with plaintiff began diving into the water where the pool deck marking indicated the depth of the water to be three feet. Fearing the depth to be too shallow for diving, plaintiff directed the children to an area of the pool where the depth of the water was marked as five feet deep. There was no indication that diving was not permitted at this particular point, although the pool did have an area specifically designated for diving. Standing by the edge of the pool at the five foot marking, plaintiff gave instructions to the children in her party on proper diving techniques. She assumed a diving stance, pushed off the side of the pool and dove at an angle into the water with her arms extended over her head and her feet together. The ensuing dive resulted in a startling mishap, for plaintiff struck her head on the bottom of the pool and came to the surface screaming.

Plaintiff’s evidence was that at the point where she executed the dive, the water depth was approximately three and a half feet; that the water was murky and the bottom of the pool was not visible. Plaintiff submitted her case to the jury on the theory that the water depth marking on the pool deck at the point she dove into the water was inaccurate and misleading thereby rendering the pool unsafe for use.

Defendant, on appeal, does not challenge the sufficiency of the evidence supporting plaintiff’s theory of negligence. The defendant’s evidence was that the water was clear and that the pool bottom was clearly visible; that plaintiff’s own negligence contributed to her injury. Although it had attempted to establish that the pool water was clear, defendant, under its theory of defense, twisted plaintiff’s murky water evidence to its favor by asserting that if the water was in fact nubilous, plaintiff was negligent in diving where she could not see the bottom of the pool.

The jury verdict was for the defendant, but the trial court sustained plaintiff’s motion for new trial for the reason that defendant’s contributory instruction was an incorrect statement of the law; we agree. Defendant’s contributory negligence instruction imposed upon plaintiff the duty to first ascertain the depth before diving into the murky water. We believe that to be error, and the trial court was correct in granting the new trial.

The challenged instruction provided:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
“First, plaintiff dove into the pool in an area of the pool where no provision was made for diving and at a place where the pool was marked ‘5 ft. center’ and at a time when the water was so murky that plaintiff could not see the bottom of the pool without first ascertaining the depth of the water at the place of the dive and in entering the pool dove in such a manner so as to strike the bottom of the pool with her head, and
Second, in so diving plaintiff failed to use ordinary care for her own safety, and
Third, Such failure to use ordinary care caused or directly contributed to cause any damage plaintiff may have sustained.
The term ‘negligent’ as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.” (emphasis added).

Under the facts of this case, the plaintiff had no duty to first determine the depth of the water simply because the bottom of the pool was not visible, and the instruction was thereby in error in imposing such a duty.

Various duties are imposed upon both the operator of a public swimming pool and the pool’s patrons. The operator, while not an insurer of the safety of its patrons, does owe its patrons the duty to use reasonable care in furnishing and maintaining its facilities for the purpose for which they were apparently designed and to which they were adapted. The operator is duty bound to make known dangerous conditions safe or to give warning adequate to enable its patrons to avoid the harm. Boll v. Spring Lake Park, Inc., 358 S.W.2d 859 (Mo.1962); Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (1954). While a patron has the right to rely upon the assumption that the proprietor has discharged his duty and has provided a place that is reasonably safe for the use invited, he has a duty “to exercise ordinary care to avoid known or appreciated dangers and also has the duty to discover conditions of danger which a prudent person in the exercise of ordinary care under the attending circumstances would discover.” Boll v. Spring Lake Park, Inc., supra at 863. See also Smith v. American Flyers, Inc., 540 P.2d 1212 (Okl.App.1975); Waddel’s Adm’r v. Brashear, 257 Ky. 390, 78 S.W.2d 31 (1935). In exercising such duty however, the patron is not required to make a critical inspection to assure himself that the pool is safe. Boll v. Spring Lake Park, Inc., supra.

To determine whether the duty imposed upon the plaintiff in defendant’s contributory negligence instruction was consonant with the rules set out above, we first examine our Supreme Court’s decision in Boll v. Spring Lake Park, Inc., supra, which is relied on extensively by the defendant and apparently served as the basis for its contributory negligence instruction. As will be shown below, the defendant’s reliance on Boll is misplaced, for Boll is substantial authority for the proposition that the plaintiff was under no duty to first ascertain the depth of the pool before diving into murky water.

In Boll, the plaintiff struck his head on the bottom of the pool during the course of a dive. The jury returned a verdict in favor of the plaintiff and judgment was entered accordingly. On appeal, the defendant contended that the plaintiff was contributorily negligent as a matter of law and that a verdict should have been directed in the defendant’s favor. The evidence revealed that the pool was approximately 200 feet long and had a diving board at one end. A rope extended across the pool some 50 to 55 feet from the end of the pool where the diving board was located. While the pool was between 9 and 11 feet deep at the point where a diver using the board would normally enter the water, the depth of the water along the sides of the pool within the roped-off area was only three feet deep. The bottom of the pool was filled with sand, and at the time of the incident, the water was muddy and the bottom of the pool not visible. The plaintiff dove from the side of the pool within the roped-off “diving” area into three feet of water and struck his head on the bottom. The plaintiff’s evidence at trial was that no warning signs or depth markings were present along the side of the pool within the roped-off section — a fact disputed by defendant. The defendant produced evidence of the existence of signs indicating that the depth along the side was only two feet deep. On appeal, the court applied the rules, which we have set forth, concerning the respective duties of the operator and patron of a swimming pool to the facts of the case. As the court was determining whether a directed verdict should have been granted in favor of the defendant, the evidence was viewed in the light most favorable to the plaintiff. See Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811 (Mo.App.1975). Thus, in determining whether the plaintiff was contributorily negligent as a matter of law, the court emphasized the plaintiff’s evidence concerning the lack of any signs indicating the depth of the water. The court held that the plaintiff was not contributorily negligent as a matter of law, as he had a right to rely on the assumption that the entire roped-off area would be safe for diving in the absence of any warnings to the contrary. The court also found that plaintiff had no notice of the actual depth of the water, as the bottom was not visible; that plaintiff was under no duty to make a critical inspection of the pool before diving. We quote from Boll:

“The pool was approximately 200 feet in length and one fourth of it was set apart from the rest by a rope stretched across the pool. A person reasonably could infer that the portion so set apart was designed for diving as evidenced by the presence of the diving board, and the defendant knew or should have known that in an area so set apart, at least when there were no warning signs, patrons would dive from the sides of the pool as well as from a springboard. Plaintiff apparently was not familiar with the underwater physical features of the pool and could not, because of the muddy water, see the bottom of the pool, but he was not required to make a critical examination of the facilities, and he was entitled to rely to a certain extent that defendant would not invite him to use a dangerous facility.” Boll v. Spring Lake Park, Inc., supra at 863. (emphasis added).

Although the court held that the plaintiff was not contributorily negligent as a matter of law, it did state that under the facts and circumstances of the case the jury could have found the plaintiff contributorily negligent. The defendant in the case before us extrapolates from this that the jury could have found that the plaintiff was negligent in failing to first ascertain the depth of the water as he could not see the bottom of the pool. The defendant is misreading Boll. Under the facts of Boll the jury could have found that warning signs were posted (if they chose to believe the defendant’s evidence) and therefore found that the plaintiff was negligent in diving despite the existence of these warnings. The jury was so instructed. The defendant’s contributory negligence instruction was paraphrased in the Boll decision:

“Instruction No. 5 submitted that if the jury found that plaintiff came on the premises when it was daylight and visibility was good, that he elected to enter the pool by diving from the wall where no provision was made for diving and where there was a clearly visible notice or sign reading ‘Shallow 2 feet’ which plaintiff saw or should have seen, that plaintiff was sufficiently mature to appreciate the danger and failed to exercise ordinary care, then the jury should find for defendant.” Id., at 864 (emphasis added).

The Boll instruction permitted the jury to find the plaintiff negligent only if he proceeded to dive when he knew or should have known of the existence of the danger. The instruction imposed no duty on the plaintiff to first determine the actual depth of the muddy water. An instruction to that effect would have been improper, because it would have required the plaintiff to make a critical examination of the facilities, which the court had noted the plaintiff was not obligated to do under the facts and circumstances of the case.

Turning to the facts of the case before us, we find that even viewing the facts in the light most favorable to the defendant’s position, the plaintiff was under no duty to first determine the depth of the water merely because she was unable to see the bottom. The plaintiff dove into the pool at a spot where a sign indicated that the water was five feet deep at the center. There were no signs prohibiting diving at that spot, nor were any oral warnings made to the plaintiff indicating the danger involved in diving at that point. The fact that the water was murky, rather than imposing upon her a duty to ascertain the depth of the water, actually further justified her reliance on the depth markings provided by the defendant. As noted in Boll v. Spring Lake Park, Inc., supra, the plaintiff could rely to a certain extent on the assumption that the defendant would not invite her to use a dangerous facility. While she was under a duty to exercise ordinary care to avoid known or appreciated dangers and to discover conditions of danger which a prudent person in the exercise of ordinary care under similar circumstances would discover, plaintiff was not required to make a critical inspection of the pool. Under the facts of this case the existence of murky water would not impose a duty on the plaintiff to determine the actual depth of the water before diving. That would be a critical examination of the facilities, which under Boll v. Spring Lake Park, Inc., supra, plaintiff would not have to undertake. Therefore, the trial court properly sustained the plaintiff’s motion for a new trial on the basis that defendant’s contributory negligence instruction improperly stated the law.

The judgment is affirmed and the cause remanded.

KELLY, P. J., and WILLIAM H. CRAN-DALL, Jr., Special Judge, concur.

      . The evidence is in conflict as to what markings actually were present on the pool deck. The defendant contended that the marker read “5 ft. center.” The pool was constructed so that it was deeper in the center than at the sides. The plaintiff and her flaneé testified that they did not see the word “center” included in the marking. In his deposition introduced at trial, the manager and officer of the pool testified that the marking read “5 ft.” In his in-court testimony, the manager stated that the word “center” was included in the marking.

      . The diving incident related by the plaintiff at trial is mightily at odds with an interview given by plaintiff in connection with her interrogatories which form a part of the transcript on appeal. However, the defendant makes no point of this:
      “[Plaintiff] Well, the only thing I can actually remember is, I was standing on the side of the pool and I was going to sit down and climb into the pool and when I did, it, I slipped and then the next thing I know, I cannot remember hitting water and my head and then that’s about it * * * I kinda went sideways into the pool.”

      . Smith v. American Flyers, Inc., supra, illustrates the duty imposed upon a patron. In Smith, the defendant operated a swimming pool open to the public. In the deep end of the pool several airplane tire innertubes were floating on the water. The plaintiff attempted to dive through one of the tubes. His first try was successful, but on his second dive he struck his head on the side of the innertube and was seriously injured. At trial, summary judgment was entered on behalf of the defendant on the basis of the plaintiffs contributory negligence, and this ruling was affirmed on appeal. In affirming, the court held that the defendant could not be held liable for not preventing the plaintiff from intentionally taking an unnecessary risk of injury by diving at the innertube. The court concluded “that reasonable men could only conclude that the danger presented by the innertube used in the manner in which plaintiff used it, was obvious and that defendant was under no duty to warn plaintiff of this risk of danger.” Id., at 1216.

      . Our opinion is not to be construed as foreclosing the defendant in a new trial from submitting a proper contributory negligence instruction. There was evidence introduced at trial indicating that the water was clear and that the bottom was visible. Further evidence could be produced to show that in seeing the bottom, a prudent person could determine that the water was substantially less than five feet deep. Thus, it could be shown that the danger could have been appreciated by her and that she was negligent in proceeding with her dive despite the apparent danger. Furthermore, upon appropriate proof, it is possible that the manner in which plaintiff dove, even if the water were in fact five feet deep, could have been a failure to exercise reasonable care.


author: ALDEN A. STOCKARD, Special Judge.

text:
    MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION and First National Bank of Joplin, Co-Trustees under the Last Will and Testament of Corry T. Meeker, Deceased, Plaintiff-Respondents, v. SHRINERS’ HOSPITAL FOR CRIPPLED CHILDREN, Defendant-Appellant, and The Missouri Society for Crippled Children, Incorporated, Defendant-Cross Appellant, and John C. Danforth, Attorney General of the State of Missouri, Defendant.
    Nos. 37437, 37436.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 19, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      Herbert W. Ziercher, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for appellant.
    Thompson & Mitchell, David F. Ulmer, St. Louis, Spencer Scott & Dwyer, John W. Scott and Frederick H. Laas, Joplin, for respondents.
    Wilder Lucas, Lucas & Murphy, St. Louis, for cross appellant.
    John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for defendant.
   ALDEN A. STOCKARD, Special Judge.

By his will, Corry T. Meeker, who died in 1950, created a trust in which he provided for the payment of annuities to certain of his relatives during their life, all of whom are now deceased, and that the remaining income be applied and distributed, pursuant to Article XVII, Paragraph Seventh, as follows:

(a) Twenty-five per cent (25%) thereof shall be retained by my trustees and added to the principal of the trust, and invested and reinvested under the powers herein given.
(b) The remaining seventy-five per cent (75%) thereof shall be paid by my trustees, in equal shares, to the Shriners’ Hospital, for Crippled Children, a corporation, absolutely to be used exclusively for the benefit of the Hospital located in the City of St. Louis, Missouri, owned, operated and maintained by said corporation, and the Missouri Society for the Crippled Children, Incorporated, located at 3713 Washington Boulevard, St. Louis, Missouri, to be used by said Hospital and said Society to provide perpetually for free medical treatment and maintenance and support, during treatment, of poor children, without consideration of nationality or religion; provided, however, that said charitable institutions shall, at least annually, render to the trustees a report showing the disposition and use of any sums paid to the institutions for the preceding year.

The will does not contain a limit on the size of the corpus that may be accumulated or the time accumulations may be made.

As part of the Tax Reform Act of 1969, the United States Congress enacted § 4942 of the Internal Revenue Code, which provides that a trust within the definition of a “private foundation," which includes the Meeker Trust, must, in order to avoid an excise tax, distribute to its charitable beneficiaries its “undistributed income,” as that term is defined. Two excise taxes are imposed by § 4942 on undistributed income of a private foundation. We need not detail the provisions for the taxes, but one tax is 15% of the undistributed income, and the other is 100%.

A transitional rule applies to charitable trusts organized prior to May 27, 1969. It provides, in substance, that if such a trust is declared by a court of competent jurisdiction to have a provision for mandatory accumulation of income, the income accumulated pursuant thereto will be considered as though it were distributed to the charitable beneficiaries for the purpose of determining whether the excise tax on undistributed income is applicable. Accordingly, if in any year the income distributed to charitable beneficiaries plus the amount of income accumulated pursuant to a mandatory provision equals the amount of the required income distribution, no excise tax on “undistributed income” will be owing. But, if the total of such distributed income plus the required accumulated income in any year does not equal the required income distribution, the difference will be considered “undistributed income,” and an excise tax on such income will be owing for that year unless an encroachment is made on the corpus in an amount equal to such difference and distributed to the charitable beneficiaries.

The Meeker will does not confer on the trustees the power to encroach on the corpus to make such distribution.

The Trustees of the Meeker Trust, respondents herein, filed a petition for a declaratory judgment that (1) the provision in the will requiring that 25% of the net income of the Trust Estate be accumulated annually is a mandatory provision and may not be excused; (2) the Trustees are to continue to accumulate income pursuant to the terms of the trust instrument; and (3) to the extent necessary in order to avoid an excise tax pursuant to § 4942(a), supra, for any year, the terms of the trust be modified to authorize the Trustee to encroach upon the corpus of the trust and distribute to the beneficiaries such amounts as might be required to avoid the imposition of the excise tax.

Appellant Shriners’ Hospital for Crippled Children (hereafter referred to as “Shri-ners”) filed an answer in which it sought to have the Trial Court declare that the provision in the will providing that 25% of the income each year be added to the corpus of the trust is void ab initio, and to order the Trustees to pay to the charitable beneficiaries the total net annual income of the trust accumulated since the death of the testator.

By its answer, The Missouri Society for Crippled Children, Inc., (hereafter referred to as “Missouri Society”) joined in respondent’s request. It alleged that the provision in the will for accumulation of income is valid and mandatory, and that Shriners is estopped to challenge the validity of the provision for accumulation because of its acceptance of the income less the accumulation since 1950.

The trial court held, in the respects here material, that (1) the accumulation provision in the will is reasonable and is not void ab initio, and that such provision has not become so unreasonable, unnecessary, or contrary to public policy so as to require the court to rule that it should be terminated; (2) that the testator’s intent will be most nearly carried out if it is determined that said provisions are “mandatory and may not be excused;” and (3) that the Trustees shall have the power and are directed to encroach upon the corpus of the trust estate and to distribute to the charitable beneficiaries such amounts in any year necessary to avoid the payment of the excise taxes imposed by § 4942.

Shriners and Missouri Society appealed, but Missouri Society’s appeal is directed only to the holding of the trial court that Shriners is not estopped to challenge the accumulation provisions of the will.

Shriners first contends that the trial court erred in upholding the validity of the accumulation provisions in the Meeker Trust because “the perpetual accumulation of income by a charitable trust is against the public policy and common law of Missouri.”

All parties admit that this is a trust for charitable purposes. Therefore the rule against perpetuities is not applicable. Quinn v. Peoples Trust & Savings Co., 223 Ind. 317, 60 N.E.2d 281 (1945); Wendell v. Hazel Wood Cemetery, 7 NJ.Super. 117, 72 A.2d 383 (1950). All charitable trusts are subject to the broad powers of the courts of equity to secure the maximum possible benefit to the public and to carry out insofar as possible the intent of the donor. In order to accomplish this a court of equity may make such orders regarding the accumulation of income as it deems to be in the public interest, so long as a statutory regulation pertaining to accumulation is not violated. While the trustees are bound by the mandatory directions contained in the trust instrument, the court “is not bound by the instructions of the settlor, but may direct, prohibit, or vary accumulations, and may reconsider decisions made by it with regard to such matters.” Bogart Trusts and Trustees, 2d ed. § 352. See also St. Louis Union Trust Co. v. Bethesda General Hospital, 446 S.W.2d 823 (Mo.1969). The fact that conditions or circumstances may subsequently arise which would make appropriate the intervention of a court of equity to better carry out the intention of the testator, or to protect the public interest, or to avoid unanticipated tax problems, does not result in the provision for accumulation being void ab initio. For example, a provision in a trust for the accumulation of income for a period longer than that permitted by law does not result in the provision for accumulation being void, but the court will permit the accumulation for only the authorized period. In re Lewis’ Estate, 199 Mise. 463, 99 N.Y.S.2d 986 (1950). Also, the provision for accumulation of income is not void even though it is for an unspecified period of time. Wendell v. Hazel Wood Cemetery, 3 NJ.Super. 457, 67 A.2d 219, 224 (1949). But, as stated in the Wendell case, “If some time in the future the accumulations should appear to a court of competent jurisdiction to be unreasonable, the accumulations might be ordered distributed to the named beneficiaries immediately or cy pres.” In Lyme High School Ass’n v. Ailing, 113 Conn. 200,154 A. 439, 441 (1931), the trust provided for annual accumulation of one-third of the income for 99 years “or as long as the law allows.” This provision was held to be valid and the court added that the “only limitation [was] the power of the court to take remedial measures should an unreasonable condition result.”

Shriners does not contend that future accumulation of income will not be in accord with the purposes of the trust, or that it would be unreasonable to accumulate further income, or that to do so would be contrary to the public interest. Its contention is that “the perpetual accumulation” of income by a charitable trust is contrary to public policy and therefore a provision therefor is void ab initio. The immediate answer to this is that by operation of law the provision in the Meeker will does not provide for a “perpetual” accumulation, because when continued accumulation of income no longer furthers the purpose of the trust or is in detriment to the public interest, the courts of equity may correct the matter. But, until such condition is shown to exist, the intent of the testator should be given effect. Therefore, the provision in the Meeker will providing for accumulation of income is not void ab initio, but it is mandatory on, and may not be excused by, the trustees, and it must be complied with until, for good cause shown, a court of equity decrees otherwise.

Appellant next asserts the trial court erred in holding that the accumulation provision “is mandatory and may not be excused” because, it argues, this “ignores the power to the courts to order a deviation from the terms of a charitable trust.”

What we have said in ruling on appellant’s first point in effect rules this contention.

The holding of the trial court that the accumulation “is mandatory and may not be excused” has reference to the powers or authority of the trustees under the trust agreement; it does not purport to constitute a limitation on the power or authority of a court of equity. Such holding by the trial court did not “ignoré” the power of the trial court to order a deviation when the circumstances warrant such action. In fact, in the judgment, the trial court recognized such power by its holding that the accumulation provision had not become so unreasonable, unnecessary, or contrary to public policy to then justify an order of deviation, and by its holding that the trustees be granted the power to encroach upon the corpus of the trust.

Appellant’s final contention is that the trial court erred “in holding that the accumulation provision in the Meeker Trust is not void ab initio ” because, it argues, “the ordering of payment of the trust’s accumulated income would best avoid [1] the evil of perpetual accumulation and avoid [2] the consequences of § 4942 IRC.”

Each of the reasons advanced is a non-se-quitur to the issue of whether the accumulation provision is void.

As previously pointed out, we do not have the issue of a “perpetual” accumulation, and what appellant argues, in effect, is that it disagrees with what is “best.” We do not consider that to be an issue in this case. But to direct the Trustees to take the action proposed by appellant would defeat the expressed intention of the testator when there has been no showing that some action by a court pertaining to accumulations is called for in the public interest or to preserve the purpose of the trust.

In view of the result we have reached as to the above issues, we need not rule on the merits of the appeal by Missouri Society.

The judgment is affirmed.

SMITH, P. J., not participating.

DOWD, J., concurs.

      . A more detailed explanation of the tax imposed by said § 4942 may be found in MacCur-dy-Salisbury Educational Fund v. Killian, 30 Conn.Sup. 203, 309 A.2d 11 (1973).