author: STONE, Judge.

text:
    Vance K. GOVER, Kenneth E. Johnston, Tom B. Kretsinger, Warren H. Sapp, and William H. Tate, Plaintiffs-Appellants, v. EMPIRE BANK, a Banking Corporation, Defendant-Respondent.
    No. 10034.
    Missouri Court of Appeals, Springfield District.
    Nov. 17, 1978.
    Motion for Rehearing or to Transfer Denied Dec. 6, 1978.
    Application to Transfer Denied Jan. 8,1979.

      Tom B. Kretsinger, Warren H. Sapp, Kansas City, for plaintiffs-appellants.
    J. Douglas Cassity, Springfield, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   STONE, Judge.

In this court-tried action, plaintiffs-appellants Gover, Johnston, Kretsinger, Sapp and Tate, who were “at all times relevant herein” members of the board of directors of Refrigerated Food Lines, Inc. (RFL), sought a decree cancelling a “Loan Guaranty Agreement” dated June 9,1971, admittedly executed by each plaintiff individually, which guaranteed payment to defendant-respondent Empire Bank of Springfield, Missouri (Empire), “of any and all indebtedness, liabilities and obligations of every nature and kind of said (RFL) to (Empire), and every balance and part thereof, whether now owing or due, or which may hereafter, from time to time, be owing and due, and howsoever heretofore or hereafter created or arising or evidenced, to the extent of Sixty Thousand Dollars . . . .” By initialed handwritten interlineations of the printed guaranty agreement (Empire’s ex. I), the liability of each of four individual signatory directors, namely, M. G. (Gene) Rippey, Vance K. Gover, Kenneth E. Johnston and William H. Tate, was limited to 20% of any sum payable under the guaranty agreement, and the liability of each of the other two individual signatory directors, Tom B. Kretsinger and Warren H. Sapp, was limited to 10% of any such sum.

In due time, defendant-respondent Empire answered and also counterclaimed for the unpaid principal balances owing by RFL upon notes held by Empire, and for interest thereon and attorney’s fees. At the conclusion of a plenary trial, the court took the case under advisement, requested written suggestions from opposing counsel, and in due time entered judgment embracing, inter alia, (1) a general finding of the issues for defendant Empire on both plaintiffs’ petition and defendant’s counterclaim, (2) a finding that after Empire “realized on” all available collateral securing its loans to RFL, “there was a deficiency” of $27,019.26, accrued interest thereon of $5,586.98 to the date of judgment, and (as provided in the guaranty agreement) a reasonable attorney’s fee of $4,890.93 (15% of the principal and accrued interest), and (3) in accordance with the guaranty agreement, “an individual judgment” against each of three plaintiffs, Gover, Johnston and Tate, in the sum of $7,499.43 (20% of the above “deficiency,” accrued interest and attorney’s fee), and against each of the other two plaintiffs, Kretsinger and Sapp, in the sum of $3,749.72 (10% of the “deficiency,” interest and attorney’s fee), all of those “individual judgment[s]” aggregating $29,997.74.

RFL was a Missouri corporation “reorganized under that name” in May 1969, based in Springfield, and engaged in the interstate “hauling [of] swinging meat from the midwest to the southeast” in refrigerated trailers. Rippey, the only director residing in Springfield was “president and chief executive officer” of RFL and “operated the company.” At the time of reorganization, “a number of personal guaranties” (not here involved or in issue) were executed by RFL’s shareholders-directors who guaranteed repayment of a substantial loan by Empire “on the [operating] rights.”

Empire’s evidence was that shortly after reorganization, to wit, under date of July 10,1969, Rippey delivered to Empire a copy of resolutions of RFL’s corporate board certified by Rippey as president, his wife as assistant secretary, and his brother-in-law, Howard A. Wood, Sr., then a member of the board, which authorized the “[president” to “[njegotiate and procure loans from The Empire Bank,” give security therefor, and “[e]xecute in such form as may be required by the bank all notes and . . . instruments of pledge, assignment or lien . . .” On the other hand, plaintiffs herein denied that the board of directors authorized or adopted that resolution.

However that may have been, in July 1970 Rippey, as president and on behalf of RFL, entered upon a course of frequently borrowing from Empire on collateral notes, each of which was secured by the assignment of accounts receivable itemized in an attached list showing as to each account RFL’s invoice number, the name and address of the buyer-consignee, and the amount owing on that invoice. Empire also received a carbon copy of the freight bill for each such shipment. On the accounts receivable thus assigned, Empire loaned 80% of the amount billed. No notice of such assignment was given to any consignee; but the agreement between RFL’s Rip-pey and Empire’s Stewart, then vice president in charge of Empire’s commercial loan department, was that, as remittances on these assigned accounts were received by RFL, they would be delivered to Empire and credited on the respective notes for which they were specifically assigned. Empire made twenty such loans to RFL during the period from July 29, 1970, to May 24, 1971, but RFL’s indebtedness at the time of suit was for unpaid balances on the last four notes, to wit, those dated on the 10th, 14th, 19th and 24th days of May, 1971, respectively.

In reviewing between May 24 and June 1, 1971, “the overall situation” as to Empire’s loans to RFL, Stewart observed that Rippey had been “coming in a little more frequently,” that “[t]he last time or two, he was really pressed for funds," that in April 1971 RFL’s application for a $100,000 S.B.A. loan had been denied, and even more significantly and importantly that some remittances in payment of later assigned accounts of certain consignees had been forwarded by Rip-pey to Empire whereas remittances in payment of earlier assigned accounts of the same consignees had not been received by Empire. Confronted with this last-noted circumstance, Rippey tendered the belated confession that “I needfed] some operating capital” and “I just didn’t bring them in.” Whereupon, in the same discussion Stewart told Rippey that “if we don’t have a guaranty on this, we’ll just call our loans and pick up your receivables and collect the money and see where we do stand.”

Facing this financial crisis, RFL’s board of directors (with all of the six members in attendance) convened in the Kansas City law office of directors Kretsinger and Sapp on Wednesday, June 9,1971. No representative of Empire was present. Three directors, namely William H. “Bill” Tate who “operated a cheese plant” at Hannibal, Missouri, Kenneth Johnston who was “general transportation manager” for a cheese plant in Clinton, Missouri, and attorney Sapp, testified at length concerning the discussion and action taken at that meeting; and, over timely objections, those three directors were permitted to relate that Rippey had then told the board no money had been theretofore borrowed on RFL’s accounts receivable. Whatever may have been said in that meeting, the end product was the guaranty agreement executed in the language and form of the appended copy, which on the following day, June 10, was delivered by Rippey to Stewart at Empire. According to Sapp, Rippey called that same day and declared that Empire “had turned down another loan” but “had kept the guaranty.”

On Saturday, June 12, directors Sapp, Gover, Johnston and Tate came to Springfield and met with Empire’s Stewart, who fully informed them concerning loans made by Empire to RFL “against accounts receivable.” Referring to the directors’ reaction to this information, Sapp commented that “[ojbviously, the company [RFL] was in much worse financial condition than we had been led to believe.” However, we observe that elsewhere in the course of his testimony Sapp conceded that “when Mr. Rippey came to the board meeting on June 9 . the company [RFL] was in a bad financial situation.” Sapp also revealed (a) that on June 9, RFL was indebted in the sum of “about” $100,000 on the note executed to acquire the funds for purchase of the operating rights and (b) that RFL “had had continuing cash problems” which had become “critical about . . . the end of March” 1971 when it became necessary to finance a substantial portion of a large insurance premium.

On several occasions during the period from June 12 to July 16, Sapp conferred in Springfield not only with Empire’s Stewart but also with James DeBerry and M. G. West, then senior vice-presidents of Empire. When, in the course of direct examination by his cocounsel Kretsinger (likewise a sig-nator on the guaranty agreement), Sapp was asked “did you ever tell any officials of the bank [Empire] that the guarantors or the directors who signed this guaranty would not honor this guaranty,” Sapp replied “[y]es, I did”; and, to the succeeding request that he “tell the circumstances,” he responded thusly:

“This would have been during, I think, the first two weeks of July. I met, I know, with Mr. Stewart and Mr. DeBer-ry. Now Mr. DeBerry and I were trying to figure out some acceptable manner of keeping the company in business, and satisfying the bank, and I had not brought this up before because we were trying to work with the bank and cooperate with them. But over coffee, after one of these meetings, I told Mr. DeBer-ry, ‘You know—you know that if it comes to the hard questions, we’re going to have to contend that we aren’t bound by this guaranty. We won’t pay anything on it.’ ”

On July 16, Empire closed RFL’s checking account and exercised its right of setoff. To afford sufficient time for completion of an audit by one Preston, an independent CPA employed by RFL, Empire took no further action until the evening of July 29, when RFL voluntarily “turned over” all of the accounts receivable to Empire. The unpaid balances of those accounts receivable then aggregating $47,897.09 were reduced to $27,019.26 by Empire’s subsequent collection efforts.

The sole “Point Relied On” in plaintiffs-appellants’ brief is that “[t]he judgment of the Circuit Court is erroneous in that respondent [Empire] failed, on its counterclaim, to establish any consideration for the alleged guaranty.” Since our appellate review is limited to those issues presented and preserved in “Points Relied On,” we attend only that quoted complaint [Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405(3) (Mo.1964); Brewer v. Blanton, 555 S.W.2d 381, 383(1) (Mo.App.1977); Del Monte Corp. v. Stark & Son Wholesale, Inc., 474 S.W.2d 854, 857(2) (Mo. App.1971)] and the facts materially relevant to resolution of that complaint.

As we view the case, certain factors impel rejection of plaintiffs’ above-quoted complaint. In the first place, the initial recitation in the guaranty agreement, to wit, “For Value Received,” is prima facie evidence of consideration to support that agreement. Burrell v. Kaiser’s Estate, 344 S.W.2d 622, 626-627(6) (Mo.App.1961); Gershon v. Ashkanazie, 239 Mo.App. 1012, 1023-1024, 199 S.W.2d 38, 46(5-7) (1947); J. R. Watkins v. Smith, 31 S.W.2d 544, 546(4) (Mo.App.1930); 17 C.J.S. Contracts § 73, pp. 756-757; 17 Am.Jur. Contracts § 90, pp. 432-433.

Furthermore, § 431.020, RSMo 1969, YAMS, provides that:

“All instruments of writing made and signed by any person or his agent, whereby he shall promise to pay to any other any sum of money shall import a consideration, and be due and payable as therein specified.”

In their reply brief, plaintiffs’ counsel recognize as a “generally correct statement of the law,” that “the recital of consideration appearing in the guaranty document (‘For value received . . .’), standing alone, is sufficient to support the alleged agreement without further proof of a consideration.” However, they endeavor to avoid the inescapable effect of that admission (which was mandated by the applicable legal principle) by charging that “respondent [Empire] appears to argue that the recital raises, in effect, a conclusive presumption of consideration which may not be rebutted.” (Emphasis ours) We do not so construe defendant-respondent’s brief, considered in its entirety; but, that brief aside, it is clear that a recital of consideration does not give rise to an irrebuttable presumption. Rather, the effect of the phrase “[f]or value received” was to create a presumption which, though not conclusive, was sufficient to support the guaranty agreement, if such presumption was not overcome to the satisfaction of the trial court, by acceptable and persuasive evidence to the contrary.

The concession in plaintiffs’ reply brief that “proof of consideration is not necessary by an obligee bringing action on a written agreement which imports a consideration” is in harmony with, and in fact is required by, the relevant and controlling statute [§ 431.020]. On the other hand, we recognize (as do plaintiffs) that where, as here, the obligors assert that there was “a want or failure of consideration,” such assertion must be pleaded and proved as stated thusly in Gershon v. Ashkanazie, supra, 199 S.W.2d at 46(7), cited by plaintiffs in this connection:

“If the maker of any such instrument denies the existence of a lawful consideration therefor, the provisions of . [now § 431.020] and the judicial interpretations thereof, together with the recitals in the instruments themselves that they were made for value received, emphasize the necessity of the maker to establish his claim by a clear preponderance of credible evidence, and his proof must be cogent and convincing.”

In attempting to carry their burden of proof on the issue raised by them as to alleged want of consideration, plaintiffs were permitted to testify fully and therefore have no basis for complaint here that they were foreclosed from presenting their evidence on that issue. However, counsel for plaintiffs-appellants have overlooked the axiom that in a court-tried case the trial judge is the arbiter of the facts and may disbelieve and reject any portion of the oral testimony, even though the rejected portion is uncontradicted. Miller v. Gayman, 482 S.W.2d 414, 419(7) (Mo.1972); Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348(3) (Mo.App.1977); Labor Discount Center, Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407, 421(4) (Mo.App.1975).

Our review in this court-tried case is “upon both the law and the evidence as in suits of an equitable nature” with “[d]ue regard ... to the opportunity of the trial court to have judged the credibility of witnesses” [Rule 73.01, subd. 3, ¶¶ (a)(b)]; and, it becomes our appellate duty to sustain the judgment nisi unless no substantial evidence supports it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo.banc 1976); McGee v. St. Francois County Savings and Loan Ass’n., 559 S.W.2d 184, 186(1) (Mo.banc 1977); McFarland v. Braddy, 560 S.W.2d 259, 261(1) (Mo.App.1977).

As respondent here, defendant Empire is clothed with the presumption that the judgment under review is correct, and the burden rests upon plaintiffs-appellants to establish affirmatively any alleged error. Hardy v. McNary, 351 S.W.2d 17, 20(2) (Mo. 1961); James v. James, 248 S.W.2d 623, 627(8) (Mo.1952); Crossgates Home Ass’n. v. Blomquist, 537 S.W.2d 429, 430(1) (Mo. App.1976); Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512, 515(2) (Mo.App.1976).

Sympathetically attuned as our ear may be to plaintiffs’ plea ad misericordiam, a meticulous review of the transcript and briefs with appropriate regard for the foregoing principles of appellate review in a court-tried case constrain the conclusion that the judgment nisi should be affirmed in all respects. It is so ordered.

BILLINGS, C. J., and TITUS, J., concur.

[See following illustration.]

      . A photographic copy of Empire’s ex. 1 is appended to this opinion.

      . Rippey, the “president and chief executive officer” of RFL, “who [had] lived in Springfield and operated the company on a day-to-day basis,” was neither a party in this action nor a witness upon trial. Plaintiffs’ counsel informed the court that “Mr. Rippey will not be here, sir. I guess he’s unavailable. We’re not sure where he is.”

      . At all times here material, there were only six directors.

      . These interlineations were made by plaintiff Sapp at a meeting of RFL’s board of directors in Sapp’s Kansas City law office without Empire’s prior knowledge, but witness Stewart, a vice president in Empire’s commercial loan department, testified that the limitations thereby effected were “acceptable” to Empire.


source: Caselaw Access Project

author: STEPHAN, Judge.

license: Public Domain

text:
    Dorothy STEWART, Plaintiff-Respondent, v. BOARD OF EDUCATION OF RITENOUR CONSOLIDATED SCHOOL DISTRICT R-3 et al., Defendants-Appellants.
    No. 39426.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Application to Transfer Denied Jan. 8,1979.

      Edward K. Fehlig, George J. Bude, Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Clayton, for defendants-appellants.
    Donald L. James, Russell P. Watters, Moser, Marsalek, Carpenter, Cleary, Jaeck-el, Keaney & Brown, St. Louis, for plaintiff-respondent.
   STEPHAN, Judge.

The Board of Education of Ritenour Consolidated School District appeals from a decision by the Circuit Court of St. Louis County reversing the board’s termination of the indefinite contract of respondent Dorothy Stewart, a permanent teacher with the district. The board terminated respondent’s contract because of respondent’s claimed excessive absences. The circuit court ordered reinstatement of respondent at the rate of pay to which she would be entitled, had she not been discharged, together with all back pay from the date of her dismissal, plus 6% interest thereon. Although we are in basic accord with the disposition of this case by the trial court, we remand for further proceedings as hereinafter set out.

This is the second time this matter has been before this court. The first appeal, prosecuted by the teacher from the affirmance by the circuit court of her dismissal, resulted in reversal and remand with instructions that the board make findings of fact and conclusions of law and reopen hearings if the board deemed it appropriate. In that case, this court said, “The ‘findings and conclusions’ of the Board simply do not provide a basis for review.” Stewart v. Board of Education of Ritenour Consolidated School District, 538 S.W.2d 765, 766 (Mo.App.1976). Upon remand, the board conducted no further hearing and made findings of fact and conclusions of law based solely upon the evidence received at the first hearing.

In this current appeal, the board, essentially following its findings and conclusions, contends that its decision is supported by competent and substantial evidence and is not contrary to the overwhelming weight of the evidence because: (1) respondent’s absences of 124 days prior to March 20 during the 1973-1974 school year were greatly in excess of the number of sick leave days she had accumulated; (2) respondent’s absences in the 1973-1974 school year caused detriment to the school district and respondent’s students by necessitating the use of a series of substitute teachers; (3) respondent’s absences were greatly in excess of average teacher absences; and (4) respondent’s absences were not medically justified.

At the outset, we acknowledge that judicial scrutiny of evidentiary support for an administrative tribunal’s decision is limited. The court may not substitute its judgment upon the evidence and may only decide, viewing the evidence in its entirety and in the light most favorable to the administrative decision: first, whether the administrative findings are supported by competent and substantial evidence; and, second, whether the administrative findings are clearly contrary to the overwhelming weight of evidence. Board of Education, Mt. Vernon Schools, Mt. Vernon, Missouri v. Shank, 542 S.W.2d 779, 781-782 (Mo. banc 1976); Rafael v. Meramec Valley R-III Board of Education, 569 S.W.2d 309 (Mo.App.1978); Eddington v. St. Francois County R-III Board of Education, 564 S.W.2d 283, 284-285 (Mo.App.1978); Merideth v. Board of Education of Rockwood R-6 School District, 513 S.W.2d 740, 745 (Mo.App.1974). Whatever deference courts must give to the fact-finding functions of an administrative agency, courts are not bound by the agency’s resolution of questions of law or application of the law to the facts. Judicial review may extend to such matters as whether the agency’s action exceeds its statutory authority, is unauthorized by law, or involves an abuse of discretion. Section 536.140, RSMo 1969; Rule 100.07; St. Louis County v. State Tax Commission, 562 S.W.2d 334, 337-338 (Mo. banc 1978); Chapman v. Sanders, 528 S.W.2d 462, 464 (Mo.App.1975); Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 802[1] (Mo.1973).

The statutory authority under which the board proceeded in this case is the Teacher Tenure Act, §§ 168.102 to 168.130, enacted by the General Assembly in 1969 to become effective July 1, 1970. A purpose of the Act is to obtain stability and permanence of employment of teachers after successful completion of a probationary period. Lopez v. Vance, 509 S.W.2d 197, 202[2] (Mo.App.1974). Under its provisions, once tenure is achieved, a teacher may be dismissed only for cause after a hearing. Section 168.114. As pertinent to this case, the last cited section provides: “An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes: ... (5) Excessive or unreasonable absence from performance of duties; . . .” In its findings of fact and conclusions of law prepared after the first appeal, the board concluded that Miss Stewart’s absences were excessive. We hold that under the law, including the board’s own policy relating to sick leave, the board could not, on the basis of the record facts, have reasonably concluded that Miss Stewart’s absences were either excessive or unreasonable.

The term “excessive” as used in § 168.114 is not defined by statute or by board rule, although the board could have defined it as it relates to sick leave under the provisions of § 168.122. As noted in Stewart v. Board of Education of Ritenour Consolidated School District, 538 S.W.2d 765, 766 (Mo.App.1976), “There is no school board written or oral policy on what constitutes excessive absence . . . ” Examination of the written policy relating to sick leave shows that it governs only the number of days for which a teacher will be paid while absent for personal illness and provides that up to 180 such days may be accumulated over the years. After the fourth year of employment, a teacher receives thirty days of sick leave. The policy also provides, “Pay is deducted from salary after the accumulated leave is used. Deduction will be at the regular rate of salary.” Thus, the very policy which the appellant board argues sets the standard of ex-cessiveness actually contemplates situations in which all accumulated sick leave time is exhausted, yet tenure is not lost. Even if, as the board argues, Miss Stewart exceeded her accumulated sick leave time by 28.5 days during the 1973-1974 school year, such a period of absence does not establish that her absence was “excessive” as that term is used in § 168.114. This is true in spite of the fact that substitute teachers had to be hired to take her place, a condition which was certainly foreseeable when the board adopted its liberal, open-ended policy. With respect to the fact that Miss Stewart’s absences had for five years exceeded the average number of absences of other teachers in the district, we need only echo the words of Judge Dowd in Merideth v. Board of Education of Rockwood R-6 School District, 513 S.W.2d 740, 749 (Mo.App.1974), “While we find that respondent’s absences were far in excess of absences for other teachers, we cannot sustain the Board on this finding because of the Board’s unlimited or 180-day absenteeism policy.” The board, under the law and its own policy, cannot here be sustained in its conclusion that Miss Stewart’s absences were excessive on the strength of their duration alone.

We must also reject the board’s contention that Miss Stewart’s absences were not medically justified, which would cause them to be “unreasonable”. Upon the first appeal, Stewart, supra, 766, this court noted that Miss Stewart’s evidence, including the “entirely uncontradicted” testimony of a physician, was that the absences resulted from illness. The court then went on to rule: “If the Board’s decision is based upon a finding that the absences were not in fact medically justified, the record simply does not contain evidence to support it.” Inasmuch as the board did not reopen the hearing or in any way attempt to augment the record, there is no more evidence upon this appeal to support the board’s now articulated finding of fact than there was on the first appeal. The holding that the evidence is insufficient upon which to base a finding that the absences were not medically justified has, therefore, become the law of the case. Huter v. Birk, 510 S.W.2d 177, 181 (Mo.1974); Marco Finance Co. v. Solbert Industries, Inc., 534 S.W.2d 469, 471-472 (Mo.App.1975); Midwestern Machinery Co. v. Parsons, 415 S.W.2d 545, 540-547 (Mo.App.1967).

As noted at the outset, the trial court ordered reinstatement and back pay from the date of dismissal. The exact wording of that portion of the order is as follows:

“NOW THEREFORE, this Court reverses. the decision of the Board of Education of Ritenour Consolidated School District if such purports to be a new finding supporting the discharge, and orders said district to immediately reinstate the Petitioner to her same duties, at the rate of pay to which she would have been entitled had she not been wrongfully discharged, and further restore to her all back pay from the date of her unlawful dismissal, together with 6% interest thereon.”

The portion of the order relating to all back pay was undoubtedly occasioned by the language of §§ 168.116-4 and 168.120-4. Section 168.116-4 reads in part, “If a decision to terminate a teacher’s employment by the board of education is appealed, and the decision is reversed, the teacher shall be paid his salary lost during the pending of the appeal.” And, § 168.120-4 provides, “If the circuit court finds for the teacher, he shall be restored to permanent teacher status and shall receive compensation for the period during which he may have been suspended from work, and such other relief as may be granted by the court.” However, the “back pay” * provisions of the Teacher Tenure Act are subject to the doctrine of mitigation, Pollard v. Board of Education Reorganized School District No. III, 533 S.W.2d 667, 671[7] (Mo.App.1976), Dameron v. Board of Education of Lebanon School District R-III, 549 S.W.2d 671, 677 (Mo.App.1977), as that doctrine was explicated in Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 147-148 (Mo. banc 1975). Accordingly, while we affirm the order of reinstatement, we remand for a “determination of the amount by which [the] back-pay award is to be mitigated under the rule of avoidable consequences to have credited against such amount the counsel fee plus expenses which the employee has paid or obligated himself to pay in vindicating his right to reinstatement of his position, provided that the amount of such credit is limited to what is determined to be a reasonable fee and reasonably necessary expenses.” Wolf, supra, 147-148.

Affirmed in part; modified in part and remanded for further proceedings not inconsistent with the foregoing.

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

      . Section 536.140-3 provides in part, “The law applied by the agency as aforesaid may include the agency’s own rules.”

      . Section 168.122 provides in part, “A board of education may establish policies for granting leave of absence including sabbatical leave, maternity leave, sick leave, and military leave.”

      . If the thirty days of sick leave to which she was entitled in the 1973-1974 school year had been credited to her at the commencement of the year, she would have had 1.5 unused days upon her return to duty on March 20, 1974. Instead, the board credited her with the thirty days as of the day she returned. She used five of these days between March 20, 1974 and the end of the school year and was paid for them. At about the time Miss Stewart filed her second petition for review, which gave rise to this appeal, she filed a separate action for declaratory judgment to the effect that she should have been credited with the 1973-1974 thirty-day sick leave time as of the beginning of that school year, rather than as of the day she actually commenced work, March 20, 1974. In that action Miss Stewart also sought judgment in a second count for $2,038.00, representing the twenty-five days of 1973-74 sick leave for which she was not paid. The case was tried on a stipulation of fact, and the court ruled for the board and against Miss Stewart on both counts. She did not appeal. Over Miss Stewart’s objection, the circuit court file in the declaratory judgment action was made a part of record in the circuit court’s administrative review proceeding from which this appeal arises. The board now argues that the judgment in the declaratory judgment case, which is long since final, amounts to a binding determination that, as of the date she returned to work, Miss Stewart had exceeded her accumulated sick leave time by 28.5 days and that the board properly regarded this as excessive by any standard. We have not assessed the effect of the declaratory judgment on this case and need not do so. As has been demonstrated, the board has by its own policy declared that, at least for periods of up to 180 days, absences for reasons of personal illness cannot be deemed excessive.


author: BILLINGS, Judge.

text:
    In re Marriage of Homer Lee BRITTON, Sr., Respondent, and Lorraine Britton (Pryor), Appellant.
    No. 10625.
    Missouri Court of Appeals, Springfield District, Division Three.
    Nov. 22, 1978.
    Motion for Rehearing or Transfer Denied Dec. 12, 1978.
    Application to Transfer Denied Jan. 8,1979.
    John L. Woodward, Steelville, for respondent.
    J. Kent Howald, R. Brooks Kenagy, Beck-ham, Hale & Howald, Steelville, for appellant.
   BILLINGS, Judge.

Motion to modify custody of minor child. The court granted the father’s motion and vested custody in him. The mother appealed, contending there was no substantial evidence of change of circumstances to support the modification order. We agree and reverse.

The marriage of the parties was dissolved February 25, 1976, following the filing of a joint petition. The decree followed the terms of a separation agreement of the parties and vested custody of the four older children (then ages 19,18,16 and 13) in the father and placed the custody of four-year-old Tania Sue with the mother. Each party was granted reasonable visitation privileges and in addition, the father was granted temporary custody of Tania Sue for three months each summer.

Prior to the entry of the dissolution decree, the mother and Tania Sue moved to near Tacoma, Washington, and thereafter the mother remarried. Since the age of fifteen months, Tania Sue has suffered from epilepsy, cerebral palsy, and a hyper-kinetic condition.

Five months after the decree of dissolution was entered, and while the father had temporary custody of Tania Sue he filed this proceeding and sought custody of the child. As grounds for modification, the father alleged that during the time the mother had custody the child had become nervous and emotional, had started stuttering and stammering, and had lost weight; further, that while the child had been in his custody, she had gained weight, was less nervous and anxious, and ceased stuttering and stammering. The father also alleged that since the entry of the decree he had conferred with doctors who had treated the mother prior to the decree and they had opined her physical and mental condition was such that she could not properly care for Tania Sue and that the child’s well-being was jeopardized by being in the mother’s custody.

At the modification hearing, over the mother’s objection, the deposition of a psychiatrist who had treated the mother from time to time during the period 1959 to October 1, 1975, was received in evidence. The doctor had also treated the father and the older son. Among other things, the doctor stated it was his opinion that the father was a better parent than the mother, assuming the mother’s condition had not changed since he last saw her on October 1, 1975. Controverting this testimony was a psychiatric evaluation of the mother by a Tacoma, Washington, doctor as a result of an examination conducted November 12, 1976. It was the latter doctor’s opinion that the mother was not suffering from any psychiatric disorder and that she was entirely capable of caring for Tania Sue.

We will not unduly prolong this opinion. We have read the transcript in its entirety and viewed the exhibits received by the trial court. It is obvious that the father and the children living with him would like to have Tania Sue as a member of their household. It is equally clear that the mother wants her afflicted child with her. Furthermore, the competent and relevant evidence in the modification hearing dictates a conclusion that there was no substantial evidence that a change of circumstances had occurred since the entry of the original custody award and that the welfare of Tania Sue calls for a change of custody. It is only where the change of circumstances or conditions is such that the welfare of the child requires it that custody should be transferred. Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974). When custody has been once adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances as to call for a change of custody is on the party seeking the change. Clouse v. Clouse, 545 S.W.2d 402 (Mo.App.1976); Meinking v. Meinking, 529 S.W.2d 440 (Mo.App.1975).

The order modifying the original decree is reversed.

FLANIGAN, C. J., and HOGAN, J., concur.


author: PER CURIAM.

text:
    In the Matter of the ESTATE of Susie E. DAVIS, Deceased, Opal D. Meyer, Executrix, Appellant, v. Roy DAVIS and Robert Davis, Respondents.
    No. KCD 29391.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Dale Reesman, Williams, Reesman & Tate, Boonville, for appellant.
    W. F. Daniels, Fayette, for respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Opal D. Meyer, Executrix of the Estate of Susie E. Davis, deceased (appellant), has appealed from a judgment entered by the Circuit Court of Johnson County, at the behest of Roy Davis and Robert Davis (respondents), striking 372.88 acres of real property (known as the “Elliott Land”) situate in Howard County, Missouri, from the inventory and appraisement filed in the Estate of Susie E. Davis, deceased.

A profusion of peripheral matters tend to obscure the facts and issues in this case and give it a false complexity. For this reason an effort has been made, both as to facts and issues, to focus attention solely upon those rudimentary facts and decisive issues necessary to dispose of this appeal.

The former husband of Susie E. Davis, deceased, Joe Davis, preceded her in death.

Following his death, and more particularly on August 10, 1970, while Susie E. Davis was still living, Roy Davis and Robert Davis, sons of Joe Davis, deceased, as plaintiffs, filed a petition in the Circuit Court of Howard County captioned “Petition for Declaratory Judgment”. Susie E. Davis and Kemper State Bank (mortgagee) were named as defendants. The prayer clause of the petition sought a judgment declaring “the rights, title and interests of the Plaintiffs and the Defendant Susie E. Davis, in and to” the “Elliott Land”, same being the tract of real property which lies at the heart of the present appeal. Defendants were duly served, filed answers and appeared at the trial of said cause. In due course a final judgment was entered on June 21, 1971, wherein, after reciting certain findings of fact, it was “ordered, adjudged and decreed that the defendant Susie E. Davis has a life interest in the real estate herein described and upon her death the fee simple title to said real estate shall be vested in plaintiffs Roy Davis and Robert Davis.” No appeal was taken by either Susie E. Davis or Kemper State Bank (mortgagee) from the judgment entered in the “declaratory” action.

Susie E. Davis died on December 14,1974, and on January 17, 1975, her last will and testament was admitted to probate by the Probate Court of Howard County, Missouri, and Letters Testamentary were issued to Opal D. Meyer, Executrix of the Last Will and Testament of Susie E. Davis, deceased. The “Elliott Land” was unconditionally included in the inventory and appraisement filed in the Estate of Susie E. Davis, deceased, as an asset of her estate. Roy Davis and Robert Davis filed a motion in the Probate Court of Howard County to strike the real estate in question from the inventory and appraisement filed in the Estate of Susie E. Davis, deceased, and by stipulation of counsel the hearing on said motion was removed to the Circuit Court of Howard County and ultimately heard by the Circuit Court of Johnson County on change of venue.

The judgment entered by the Circuit Court of Johnson County, from which the present appeal lies, recited, inter alia, that “the 1971 judgment vested a life estate in Susie Davis and a remainder in Roy and Robert Davis . . . Susie Davis did not appeal that judgment . . . and that judgment ... is binding on her estate” and the “Elliott Land” “passed by operation of law to Roy and Robert Davis upon the death of Susie Davis, and was therefore improperly inventoried in her estate.” The decretal portion of the judgment entered by the Circuit Court of Johnson County “ordered, adjudged and decreed” that the “Elliott Land” “be stricken from the inventory in the estate of Susie Davis”.

A pragmatic analysis of the numerous points and sub-points raised by appellant and the response to them by respondents, points the way for condensing these multitudinous issues into one principal issue for dispositional purposes. Once done, the resultant principal issue may best be understood by posing it in the form of a question — was the 1971 final judgment entered in the Circuit Court of Howard County binding on the Estate of Susie E. Davis, deceased? If it was, the judgment entered by the Circuit Court of Johnson County in the instant case striking the “Elliott Land” from the inventory and appraisement filed in the Estate of Susie E. Davis, deceased, must stand.

The doctrine of estoppel by verdict comes into play in determining the binding effect vel non of the 1971 judgment in the instant case. On occasion this doctrine is referred to as collateral estoppel and the two terms, estoppel by verdict and collateral estoppel, are sometimes used interchangeably. City of St. Joseph v. Johnson, 539 S.W.2d 784, 785 (Mo.App.1976). Although estoppel by verdict or collateral estoppel has been spoken of as “an aspect or refinement of the general rule of res judicata”, In re Estate of Laspy, 409 S.W.2d 725, 736 (Mo.App.1966), the doctrine of res judicata or estop-pel by judgment and the doctrine of estop-pel by verdict or collateral estoppel are legally heterogeneous doctrines. Smith v. Preis, 396 S.W.2d 636, 640 (Mo.1965), clearly distinguishes the difference which exists between them, even though in a broad general sense they both have to do with the effect of previously rendered judgments in subsequent judicial proceedings: “A former adjudication on the same cause of action between the same parties is conclusive in a second proceeding as to every issue of fact which was or might have been litigated in the first under what is called res judicata or estoppel by judgment^] Abeles v. Wurdack, Mo., 285 S.W.2d 544, 546[J . . . [hjowever, a judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment under what is called estoppel by verdict . . . Abeles v. Wurdack, supra.(Emphasis added.)

As the prior “declaratory judgment” action and the present action to strike the “Elliott Land” from the inventory and ap-praisement filed in the Estate of Susie E. Davis, deceased, are obviously different causes of action the doctrine of res judicata or estoppel by judgment is clearly inapplicable and if in the instant case the 1971 judgment is binding on the Estate of Susie E. Davis, deceased, the doctrine of estoppel by verdict is the legal conduit for making it binding.

There is no escape from the conclusion that the Circuit Court of Howard County in rendering the 1971 judgment “actually decided, and necessarily determined” on the basis of the facts before it that “Susie E. Davis [had] a life interest in the . [Elliott Land] and upon her death the fee simple title to said real estate shall be vested in plaintiffs Roy Davis and Robert Davis”. It is axiomatic, by reason of the applicability of the doctrine of estoppel by verdict, that the 1971 judgment is binding upon not only those parties to the present action who were also parties to the original 1971 action but also upon those in privity with a party to the original action. Privity clearly exists between Opal D. Meyer, Executrix of the Estate of Susie E. Davis, deceased, and testatrix and decedent Susie E. Davis, who during her lifetime was a party to the original action. In re Dela-ny’s Estate, 258 S.W.2d 613, 616 (Mo.1953); and In re Thomasson’s Estate, 355 Mo. 274, 196 S.W.2d 155,159 (Mo.1946). It makes no difference that Kemper State Bank (mortgagee), a party to the original action, is not a party to the present action. In re Dela-ny’s Estate, supra; and Young v. Byrd, 124 Mo. 590, 28 S.W. 83, 84 (1894).

Appellant, obviously anticipating invocation of the doctrine of estoppel by verdict to support the judgment from which the present appeal was taken, has advanced a number of reasons in her brief, many of which overlap and some of which have previously been answered, as to why the doctrine is inapplicable. Elimination of the overlapping and previously answered reasons reduces those which remain to three in number.

First, appellant claims the doctrine of estoppel by verdict is inapplicable because the question of whether the “Elliott Land” would be subject to “debts, taxes or expenses of administration” of Susie E. Davis upon her death was never raised or decided in the action which culminated in the 1971 judgment entered by the Circuit Court of Howard County. The ultimate material fact issue “actually decided and necessarily determined” in the original action, i. e., the nature and extent of the estate, title and interest of the respective parties in and to the “Elliott Land”, was fully litigated and decided adversely to appellant as she is the privy of Susie E. Davis, deceased, a party to the original action. See In re Delany’s Estate, supra. At this juncture certain apposite legal tenets are worthy of mention. “An estate for the tenant’s own life terminates immediately on the death of the tenant, and the estate passes by operation of law to the remain-derman”. 31 C.J.S. Estates § 65(2), pp. 125-26. “Since ... on the death of the tenant for his own life his life estate terminates, land in which he had a life interest is not subject to a lien for his debts, nor is the corpus of the estate chargeable with his debts and funeral expenses.” 31 C.J.S. Estates § 33 p. 60. “On the determination of a life estate in any manner the remainderman has a right to immediate possession; no interest passes to the life tenant’s heirs or to his personal representatives.” 31 C.J.S. Estates § 65 b, p. 130. Drawing upon these basic legal tenets, the ultimate material fact issue litigated in the original action, i. e. the nature and extent ■of the estate, title and interest of the respective parties in and to the “Elliott Land”, and the present availability of the “Elliott Land” to answer for the “debts, taxes or expenses of administration” chargeable against the Estate of Susie E. Davis, deceased, are inextricably bound together and the 1971 judgment entered by the Circuit Court of Howard County, via the doctrine of estoppel by verdict, bars appellant’s present contention that said land is subject to “debts, taxes or expenses of administration” chargeable against the Estate of Susie E. Davis, deceased.

Second, appellant contends that certain inconsistencies between the recital portion and the decretal portion of the 1971 judgment strips it of any legal efficacy in the present action, notwithstanding the doctrine of estoppel by verdict. The decretal portion of a judgment, in the event of an inconsistency with a recital portion, governs and controls, and takes precedence over an inconsistent recital portion. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 141 (banc 1952); and Page v. Page, 516 S.W.2d 537, 539-40 (Mo.App.1974). The prevailing de-cretal portion of the 1971 judgment nullifies any impact that might otherwise be attributed by appellant to any inconsistencies contained in the recital portion of the judgment.

Third, appellant contends the 1971 judgment cannot be raised as a bar to her unconditional inclusion of the “Elliott Land” in the inventory and appraisement filed in the Estate of Susie E. Davis, deceased, because the underlying action precipitating the 1971 judgment was erroneously decided. As held in Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 529-30 (1950), “nothing is better settled than the principle that an erroneous judgment has the same effect as to res judicata as a correct one [i]t has been held ‘that when a court has jurisdiction, it has jurisdiction to commit error’ . . [and] [i]f it was to be asserted that the judgment rendered in the former action was erroneous, the plaintiffs’ remedy was by appeal and not by attacking tbe judgment as void in another proceeding.” See also St. Bethel Missionary Bapt. Ch. v. St. Louis Bldrs., Inc., 388 S.W.2d 776, 780 (Mo.1965); and Penner v. Whitesell, 538 S.W.2d 772, 773 (Mo.App.1976).

No issue has been raised as to whether the “Elliott Land”, pursuant to Section 473.233.1(7), RSMo 1969, should have been separately listed for information purposes in the inventory filed in the Estate of Susie E. Davis, deceased.

Judgment affirmed.

All concur.

      . The antagonistic claims of Roy Davis and Robert Davis, on the one hand, and Susie E. Davis, on the other hand, with respect to the “Elliott Land” apparently arose from certain contractual provisions contained in a joint and mutual will executed by Joe Davis and Susie E. Davis which stood unrevoked by Joe Davis at the time of his death. It appears that the trial court treated the “Petition for Declaratory Judgment” as a statutory action brought under Section 527.150, RSMo 1969, to ascertain and determine the estate, title and interest of the respective parties in and to the “Elliott Land”.

      . Section 473.233.1(7)
      “(7) All property possessed but not owned by the decedent at his death shall be listed in the inventory, but separately from other property, together with a statement as to the knowledge of the executor or administrator as to its ownership;”.


text:
    D_L_L_, Appellant, v. M_O_L_, Respondent.
    No. KCD 29418.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

This case involves an appeal in a dissolution of marriage proceeding wherein the husband (a lawyer) challenges the decree entered by the trial court with respect to the division of marital property and the amount awarded to the wife for maintenance and attorney fees, and collaterally urges some undenominated form of relief at the appellate level because of the trial court’s failure to “censure” the wife’s attorney for submitting an “ex parte argument” and charging “excessive attorney fees”.

The wife responds to the attack on the decree on the merits, counters the charge of unethical conduct leveled at her attorney, and presses this court to award her $2,500.00 as damages pursuant to Rule 84.19 because of the husband’s “prosecution” of a “frivolous appeal”. Prior to submitting her brief, the wife moved to dismiss the appeal on the ground that the husband’s brief failed to comply with Rule 84.04.

It is not impolitic to note that a plethora of diversified issues have been presented for disposition which do not go to the merits of this case. Those fitting this description will be addressed first since they virtually lend themselves to being summarily disposed of.

The wife’s motion to dismiss the appeal for failure of the husband’s brief to comply with Rule 84.04 is overruled. Although the wife’s attack upon the husband’s brief in certain instances is somewhat specious, in other respects it points up instances of non-compliance with Rule 84.04 which render the husband’s brief fundamentally deficient and not merely technically imperfect. However, this court yields to the tacit suggestion in Thummel v. King, 570 S.W.2d 679, 690 (Mo. banc 1978), that where there has been no opportunity for rebriefing appellate courts should be cautiously hesitant about dismissing an appeal because the appellant’s brief fails to comply with Rule 84.04. As the wife’s motion to dismiss the husband’s appeal in the instant case for failure of his brief to comply with Rule 84.04 was “taken with the case”, the same will be overruled.

After the presentation of evidence was completed the trial court took the case under advisement before rendering judgment. During this interim the wife’s attorney delivered a letter to the court summarizing the issues and recapitulating the wife’s trial suggestions as to the division of marital property. The husband admitted that a copy of said letter was personally delivered to his office on the same day. The husband dedicates an entire point on appeal to the proposition that the trial court erred (1) in not censuring the wife’s attorney for submitting the letter above mentioned and (2) in not censuring the wife’s attorney for charging an excessive attorney’s fee. This court hesitates to dignify this point, even to the extent of momentarily addressing it, as it relates solely to matters which, if possessing any merit, are cognizable before The Advisory Committee or the appropriate Circuit Bar Committee. The request for censure should not have been injected at the trial level and will not be entertained on appeal.

The wife seeks damages from the' husband under Rule 84.19 for engaging in a “frivolous appeal”. The Supreme Court of Missouri has defined a “frivolous appeal” as “one which presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect for success.” Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 789 (Mo. banc 1977). The Supreme Court further noted in Means, 550 S.W.2d at 789 that “[t]he remedy provided in Rule 84.19 is both drastic and unusual and should accordingly be reserved for those rare and unusual situations where its application is warranted.” The husband has raised two points on appeal which go to the merits of the decree entered by the trial court. In view of the ultimate disposition of this case on appeal, infra, it cannot be said that the husband’s appeal was “devoid of merit on the face of the record”. Accordingly, the wife’s prayer for damages pursuant to Rule 84.19 on the grounds of a frivolous appeal is denied.

A summarization of the grounds upon which the husband attacks the decree entered by the trial court will precede a synopsis of the facts. First, the husband claims the trial court abused its discretion by favoring the wife with an unconscionable disproportionate share of the marital property. Second, the husband claims the trial court abused its discretion by the size of the amounts awarded to the wife for maintenance and attorney fees.

A recapitulation of the evidence in this case reveals the following: The parties were married on July 27,1952, and separated in April, 1974. Two children were adopted by the husband and wife during the course of the marriage, namely, B_, a son, born November 22, 1965, and L_, a daughter, born March 29,1969. The husband graduated from law school in 1957 with honors (Order of the Coif) and then entered the practice of law in Kansas City, Missouri, first with a firm, and for the last seven years in his own office. The wife worked regularly outside the home during the first thirteen years of the marriage, including the period when the husband was attending law school. Although the wife quit working outside the home after the first child was adopted, she resumed doing so approximately one year before this case was tried. The wife was an “economical person” and contributed to a joint savings account owned by the parties which provided the down payment for the family home, the major item of marital property. The wife continued to work and contribute to the joint savings account after the family home was purchased. Part of their joint savings “was spent for a new car and some for living expenses and establishing a new business when . . . [the husband] left his previous law firm.”

The wife estimated that the husband drank a quart of hard liquor “every couple of days” and he conceded that he drank “as much as two quarts of hard liquor a week”. The husband became romantically involved with another woman in 1971. He lived with her on sporadic occasions between 1971 and 1974. The husband openly admitted that since April of 1974, the date he and his wife separated, he and the other woman have lived together at the same address in Kansas City, Missouri. The “other woman” also serves as his legal secretary. It is not surprising that both parties stipulated that the marriage was irretrievably broken.

The husband’s “net income” from his law practice averaged $1,250.00 per month in 1975 and $885.00 per month for the first ten months of 1976. During the early part of 1976 the wife resumed employment outside the home and at the time of the trial her “take home pay” after all deductions amounted to $489.92 per month. The wife estimated that the total monthly living expenses (including a monthly mortgage payment on the family home in the amount of $164.81) for herself and the two minor children to be $1,108.31. The husband estimated his total monthly living expenses to be $676.68.

In its final decree the trial court awarded custody of the two minor children to the wife, awarded her $1,500.00 for attorney fees, ordered the husband to pay her $300.00 per month for child support and $150.00 per month for maintenance, and divided the marital property as follows:

Based on the above values the wife’s share of the marital property totaled $34,-700.00 and the husband’s share of the marital property totaled $23,500.00. On the basis of these figures the wife was awarded approximately 60% of the marital property and the husband approximately 40%. However, the husband contends these figures do not tell the whole story, because, as a practical matter, the value of the marital property he received was substantially reduced by certain indebtedness he was ordered to pay. Unfortunately the identity and amounts of the various items of indebtedness which the husband ostensibly refers to are, with no apparent rhyme or reason, diffused throughout a 572 page transcript. After laboriously screening the record, it appears that the indebtedness to which the husband refers totals approximately $12,-633.60. According to the husband one of the items comprising the total indebtedness — secretarial services in the amount of $1,200.00 — was owed to the other woman with whom he was living. With respect to another of the items — delinquent credit card accounts in the amount of $2,802.59— the husband testified that the other woman with whom he was living had permission to use his credit cards during the twelve or fifteen month period preceding the trial (no effort was made to separately identify the various charges), that trips which the other woman accompanied him on were charged on various credit cards, and a pattern of charging liquor on various credit cards by the husband was established by the record. The irony of taking the amounts owed for secretarial services and delinquent credit card accounts into consideration when determining a “just” division of marital property is too plain for words. The exclusion of these items from the total indebtedness of $12,633.60 leaves a balance of $8,631.01.

The total value of marital property awarded to the husband, $23,500.00, less $8,631.01 in indebtedness which the husband was ordered to pay, leaves a balance of $14,868.99, which in a broad sense may be referred to as the net value of the marital property awarded to the husband. In addition to receiving the family home subject to a deed of trust securing payment of a promissory note with a remaining balance of $10,700.00, the final decree ordered the wife to pay and discharge certain additional indebtedness totaling $4,325.00. The total value of marital property awarded to the wife, $34,700.00, less $4,325.00 in indebtedness which the wife was ordered to pay, leaves a balance of $30,375.00 which likewise may be referred to as the net value of the marital property awarded to the wife. On the basis of these recomputed figures the wife was awarded approximately 67% of the marital property and the husband was awarded approximately 33%.

A 67%-33% division of marital property will be used in considering whether the division of marital property was so unconscionably disproportionate as to constitute an abuse of judicial discretion. The linchpin for review of this matter is Section 452.330.1, RSMo Supp.1975, which provides that the trial court “shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse; (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage.”

The genesis of Section 452.330, supra, is § 307 of the Uniform Marriage and Divorce Act as approved in 1970 by the National Conference of Commissioners on Uniform State Laws. 9 Uniform Law Ann. 455, 490 (1973). However, one substantial difference exists between Section 452.330, supra, and § 307 of the Uniform Act. The Uniform Act specifically directs that marital property shall be divided “without regard to marital misconduct”, whereas Section 452.330.1(4), supra specifically prescribes the “conduct of the parties during the marriage” as one of four “relevant” factors for consideration when dividing marital property. Thus, consideration of the “conduct of the parties during the marriage” in arriving at a “just” division of marital property is unique to Missouri’s Dissolution of Marriage Act and its inclusion necessarily bespeaks of a legislative command that spousal misconduct, when shown to exist in a given case, be viably considered in arriving at a “just” division of marital property. Although it is inconceivable that the legislature intended that any one of the four guidelines spelled out in Section 452.-330, supra, be emphasized to the exclusion of all others, it is likewise inconceivable that the legislature intended for the “conduct of the parties during the marriage”, or, for that matter, any of the other guidelines, to be minimized out of existence. It should also be borne in mind that “conduct of the parties during the marriage” is not limited to financial misdeeds or economic derelictions, Conrad v. Bowers, 533 S.W.2d 614, 620 (Mo.App.1975), and no positive command of parity in the division of marital property is to be found in Section 452.-330, supra, In re Marriage of Vanet, 544 S.W.2d 236, 240 (Mo.App.1976). The positive command of Section 452.330, supra, is a “just” division of marital property as measured by the four guidelines laid down therein and all other “relevant factors”. The legislature, at least in theory, obviously intended that a just division of marital property should take precedence over an equal division of marital property. The case law of this state construing Section 452.330, supra, certainly concludes such to have been the intent of the legislature. Arp v. Arp, 572 S.W.2d 232, (Mo.App.1978); Fehr v. Fehr, 573 S.W.2d 695 (1978); Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App. 1978); Seiner v. Seiner, 552 S.W.2d 54 (Mo. App.1977); Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977); and In re Marriage of Van-et, supra.

The wife’s contribution to the acquisition of the marital property in this case was more than that of a homemaker. She was the principal “breadwinner” while the husband obtained his legal education and she made substantial contributions to the savings account which enabled the parties to buy the family home, same constituting the single most valuable item of marital property. Any disparity in value between the respective shares of marital property loses some of its initial shock when the realization sets in that the marital property awarded the wife, namely, the family home, a 1971 automobile, and certain furniture and appliances, are necessary ingredients for even the most Spartan lifestyle in contemporary society. The “desirability” of awarding the family home to the wife as the spouse having custody of the two minor children of the marriage speaks for itself.

Morality aside, emotionally and financially the marriage could not afford the husband’s drinking habits and extramarital affair. Notwithstanding the husband’s cavalier attitude toward his extramarital affair, the trial court was not content to view it as little more than a socially frowned upon peccadillo. The trial court obviously concluded that the husband’s longstanding penchant for hard liquor and infidelity had placed an unfair share of the marital load on the wife and, when equated with the prevailing concept of marriage as a partnership, entitled the wife to a greater share of the partnership assets, i. e., the marital property. When the guidelines set forth in Section 452.330, supra, are checked off against the facts of this case, one by one as well as collectively, they dramatically speak of a “just” division of marital property as opposed to an “unjust” or disproportionate division and completely refute the husband’s contention that the division of marital property was a classic abuse of judicial discretion.

The gist of the argument advanced by the husband in opposition to the sum of $150.00. per month awarded to the wife for maintenance and the sum of $1,500.00 awarded to the wife for attorney fees appears to be that each exceeded his ability to pay after taking into consideration his own needs and requirements. Ability to pay is statutorily recognized as a relevant factor to be taken into consideration when determining the amount to be awarded for maintenance. Section 452.335.2(6), RSMo Supp. 1975; Brueggemann v. Brueggemann, 551 S.W.2d 853, 859 (Mo.App. banc 1977); and Brown v. Brown, 537 S.W.2d 434, 437 (Mo. App.1976). To the husband’s credit, he did not question the $300.00 per month awarded to the wife for child support. Bearing in mind that the wife estimated the monthly living expenses for herself and the two children to be $1,108.31, the wife’s net monthly earnings $489.92, the monthly amount of child support which she was awarded, $300.00, and the monthly amount of maintenance which she was awarded, $150.00, total $939.92. On the basis of these figures it is a foregone mathematical certainty that the amount of money available to her each month will fall $168.39 short of meeting her estimated monthly expenses. On the basis of the only figures available, the husband’s net monthly income, while averaging $1,250.00 in 1975, had dropped to $885.00 per month during the first ten months of 1976 (the latest figures disclosed by the transcript). Although the husband estimated his monthly living expenses to be $676.68, he deflated his own estimate by admitting on cross-examination that it included $150.00 per month for rent when, in fact, his living arrangement since April of 1974 was rent free. After deducting the $150.00 allocated to rent, his estimated monthly living expenses total $526.68. This readjusted estimate of the husband’s monthly living expenses, $526.68, the amount of child support awarded monthly to the wife, $300.00, and the amount of maintenance awarded monthly to the wife, $150.00, total $976.68. On the basis of presently available figures, absent consideration of any amount for debt retirement, it is a foregone mathematical certainty that the husband will fall approximately $92.00 short each month of meeting his personal living expenses and the child support and maintenance payments awarded to the wife. In addition, the husband has been ordered to pay the wife $1,500.00 for attorney fees. Ability of the husband to pay has heretofore been recognized as being among the relevant factors to be considered when called upon to determine whether the husband should be obligated to discharge part or all of the attorney fee incurred by the wife when a marital rift occurs. Glick v. Glick, 336 S.W.2d 528, 532 (Mo.App.1960).

This case vividly demonstrates the frequently recurring tragedy of a husband and wife who emotionally can’t afford to be married and who financially can’t afford to have their marriage dissolved. The ravage of inflation — not enough money to go around — makes it extremely difficult to resolve the husband’s second point. Even Solomon in all his wisdom would be solely tested in doing so. Whatever is done, it is clear that somehow both parties are going to have to pare their living expenses. As a matter of mathematics, certain hard realities exist which will not go away by simply ignoring them. After balancing the seemingly inexorable mathematical realities of this case with the evidence, the statutorily prescribed factors for determining a just amount to award the wife for maintenance, Section 452.335.2, RSMo Supp.1975, and the criteria for awarding attorney fees, this court concludes that the amount awarded to the wife for maintenance should be reduced from $150.00 per month to $75.00 per month but the amount awarded to her for payment of attorney fees, $1,500.00, should stand. The uncontradicted evidence before the trial court as to the husband’s monthly “net income” for the first ten months of 1976, the latest figures available, superimposed upon the “relevant” factor of the husband’s ability to pay, accounts for a “firm belief” by this court that the decree with respect to the amount awarded for maintenance was “against the weight of the evidence” and was wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Whether “changed circumstances” within the purview of Section 452.370, RSMo Supp. 1975, may hereafter exist so as to warrant a modification of the amount of monthly maintenance presently awarded necessarily awaits another day and another proceeding.

In conclusion, that portion of the original decree entered by the trial court in this cause on February 7,1977, relating to maintenance is set aside with directions that the trial court enter judgment ordering the husband to pay $75.00 per month to the wife for maintenance; in all other respects the original decree entered February 7, 1977, is affirmed.

Cause remanded to the trial court with directions to enter a new decree consistent with this opinion.

All concur.

      . For obvious reasons, this court expressly refrains from delving into or deciding the charges leveled against the wife’s attorney. This court, in passing, merely observes (1) that Rule 4-DR 7-110(B) suggests that manual delivery of a copy of the letter to the husband’s office the same day it was delivered to the court exonerated the wife’s attorney of any unethical conduct with respect to said letter; and (2) the attorney fee complained of was one agreed upon between the wife and her attorney, was paid by the wife, and exceeded the amount of attorney fees awarded to the wife by the trial court.

      . The term “net income” is apparently used by the parties in the context of the net amount remaining after the deduction of all taxes and business and professional expenses.

      . The wife borrowed money and paid her attorney $4,000.00. Consequently the amount awarded her by the trial court fell considerably short of reimbursing her for the amount of attorney fees she actually incurred.