text:
    BOOTS, INC. d/b/a You Betcha Boots, Appellant, v. TONY LAMA CO., INC., et al., Appellees.
    No. 8293.
    Court of Civil Appeals of Texas, Beaumont.
    July 12, 1979.

      Robert W. Swanson, Austin, for appellant.
    J. Patrick McDowell, Dallas, for appel-lees.
   KEITH, Justice.

The appeal is by writ of error from a default judgment; and, since the perfection of the appeal and the filing of the briefs, the appealing corporation has taken refuge in bankruptcy and is now represented upon this appeal by the trustee whose counsel argued upon submission of the cause.

We have no statement of facts and the court reporter has certified that she did not attend the trial and can find no record of the evidence introduced upon the hearing. Additionally, we are confronted with an attack upon the sufficiency of the account. The complaint as to the account is well taken. The alleged “account” consists of photocopies of some thirty-three pages of computer print-out sheets composed almost exclusively of numerals, most of which are illegible.

A series of recent cases by our Supreme Court has simplified our task in reviewing appeals from default judgments where there is no statement of facts available to the appellant. In Smith v. Smith, 544 S.W.2d 121, 122 (Tex.1976), a party who had answered but who failed to appear at the time of trial, appealed by writ of error. Since no statement of facts was available, the judgment was reversed and the cause remanded.

Smith was followed in Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978), which called attention to the earlier case of Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. — Dallas 1975, writ ref’d), wherein the court held that an appellant is not required to undertake to agree with his adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the case against him in order to obtain a statement of facts.

Clearly, our defendant has been denied a statement of facts for use upon appeal through no fault of its own. But, plaintiffs contend that we should affirm because the suit is upon a sworn account and there has been no sworn denial of its justness filed even yet. Even a cursory reading of the alleged “account” [see note 1, supra] demonstrates the fallacy of the position taken. We faced a similar contention in Biscamp v. Zeno Carpet Co., 473 S.W.2d 218, 220 (Tex.Civ.App. — Beaumont 1971, no writ), and held that the “account” did not meet the requirements of Tex.R.Civ.P. 185 under the authorities cited.

We make application to the Biscamp rule in this case. See also Juarez v. Dunn, 567 S.W.2d 223, 226 (Tex.Civ.App. — El Paso 1978, writ ref’d n. r. e.). We say, as did Justice Ward in Benthall v. Goodwin, 498 S.W.2d 510, 512 (Tex.Civ.App. — El Paso 1973, no writ):

“There is no evidence explaining the accounting, and we can only guess at the meaning of the entire exhibit.”

We do not have even the single item noted by Justice Ward beyond which he was lost.

A brief survey of the background of Rule 185 may be helpful in understanding the problems confronting an attorney seeking to recover upon a sworn account for merchandize delivered to a defendant when he must rely upon computer print-out sheets composed almost exclusively of numerals.

Rule 185 was brought forward from the statutes, unchanged, where it had formerly been Tex.Rev.Civ.Stat.Ann. art. 3736 (1926), and the books disclose that the statute had not been amended since 1883. 9 H. Gammel, Laws of Texas 416 (1898). Thus, we have a rule designed to facilitate disposition of litigation under pen and ink bookkeeping techniques of the nineteenth century now governing space-age computerized accounting systems.

Courts are required to follow the rules laid down for the guidance of the lawyers and the litigants. If the clients insist, as they have the perfect right, to go to a system of bookkeeping which is incompatible with the rules governing litigation, such enterprises have two options: (a) they may translate their computerized records into the form required by Rule 185 and the many cases construing the rule and the earlier statute; or (b) they can seek a revision of the rule by appropriate amendatory procedures. They should be well advised, however, that until they successfully follow one or the other alternatives, they cannot expect relief in court when their “accounts” are challenged.

We simply follow the well-trod path and find the “account” presented below was insufficient to support a recovery under Rule 185, and that there is no statement of facts available to the defendant whereby it may challenge the sufficiency of the evidence. Under these circumstances, we have no alternative but to reverse the judgment of the trial court and remand the cause for a new trial; and, it is so ordered.

REVERSED and REMANDED.

      . As an example, we quote from page 8 of the transcript, being one of the few better and partially legible pages, wherein an invoice dated April 29, 1977, is to be found. It has an invoice number and is addressed to the defendant in Austin. It is in tabular form and we quote:
      “Style Description Quantity Price Extension
      41R3 [blank] 1 18.55 18.55
      41R3 [blank] 7 19.25 134.75
      41R3 [blank] 6 20.60 123.60 “You may deduct this amount if paid within the terms of the invoice $.53 [Total] 276.90”

      . Biscamp was cited in Tomasic & Kieval, “Sworn Accounts and Summary Judgment Proceedings”, 17 S.Tex.L.J. 147, 157-58 (1976), where several deficient “accounts” are discussed.


source: Caselaw Access Project

author: SALAZAR, Justice.

license: Public Domain

text:
    Ex parte Jimmie L. TURNER, Relator.
    No. A2146.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    John Emmett Crow, Pasadena, for appellant.
    Don 0. Harper, Houston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   SALAZAR, Justice.

Relator, Jimmie L. Turner, petitions this Court to exercise its original jurisdiction by issuing a writ of habeas corpus. Relator contends that he is illegally restrained pursuant to a void commitment order issued on March 27, 1979, after a finding by the trial court that Relator was in contempt for failing to comply with certain terms and conditions of a divorce decree.

The pertinent portion of the divorce decree stated as follows:

The Court further finds that the Respondent has a retirement income from the DEPARTMENT OF THE ARMY, and that the calculated interest of the parties is as follows: The community interest is 17/22 interest in husband’s retirement income, the wife’s community interest in said retirement at this time, with the withholding of insurance deductions, is the sum of $175.44 per month.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that said retirement check or checks be made payable to the Petitioner, SUSANNE E. TURNER, or that she, upon receiving the check/checks, shall have the AUTHORITY and is hereby authorized to endorse same, retain the sum of $175.44 as her community interest per month and pay to herself as the Managing Conservator of the three minor children the sum of $200.00 monthly for such support, the husband’s community interest being $278.56 from which such support shall be deducted and the balance of the cheek proceeds paid over by her to JIMMIE L. TURNER.

The trial court at the hearing on the motion for contempt found Relator guilty of contempt for failure to pay child support as previously ordered, assessed the arrears at $4,675.00, and committed Relator to thirty (30) days in jail, all of which may be purged by paying the arrearage and court costs of $147.00. The court further found Relator guilty of contempt for failure to pay to Susanne E. Turner one-half of 17/22 of Relator’s retirement benefits, assessed these arrears at $4,912.32 and fined Relator $100.00.

Relator, Jimmie L. Turner, and the petitioner in the divorce, Susanne E. Turner, both testified at the hearing on the motion for contempt. Their divorce had been granted on December 7, 1976. The Relator’s retirement checks were sent to Susanne E. Turner for the first two or three months following the divorce. She then moved out of state whereupon the Department of the Army forwarded and continued to forward the checks to Relator.

The decree did not order Relator to make the child support payment and payment for Susanne E. Turner’s interest in Relator’s retirement benefits directly to Susanne E. Turner every month. Instead, the decree ordered payment of the retirement checks from the Department of the Army to Susanne E. Turner as the named payee from which she was to deduct the appropriate amounts for child support and her community interest in Relator’s retirement benefits. She was then to pay the balance over to Relator.

The Supreme Court of Texas in Ex parte Slavin held that for a person to be found in contempt for disobeying a court decree, such a decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know what duties or obligations are imposed upon him. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). Here the trial court made no provision for any affirmative action on the part of Relator. The order states the Department of the Army was to make the payments to Susanne E. Turner. It is apparent to this writer that Relator was the mere recipient of the balance of the retirement benefits after Susanne E. Turner withdrew the amount for child support and her community share of the retirement benefits. The order of commitment asserts that the contempt is predicated upon a prior order to make the payments when there is in fact no such order. The decree relative to these payments is uncertain, ambiguous, unclear and calls for an inference as to what, if any, obligation the Relator had in this respect.

We hold that the record does not disclose that Relator violated an order of the trial court stated in clear and specific terms in the divorce decree, and there was no basis for holding him in contempt. It is therefore the order of this Court that Relator be discharged from custody.


author: MILLER, Justice.

text:
    LaGUARTA, GAVREL & KIRK, INC., Appellant, v. R & P ENTERPRISES, Appellee.
    No. A2096.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    Rehearing Denied Aug. 8, 1979.
    William A. Jackson, Thomas A. Collins, Sheinfeld, Maley & Kay, Houston, for appellant.
    Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellee.

      Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from the granting of plaintiff’s motion for summary judgment and the denial of defendant’s motion for summary judgment. We affirm the denial of defendant’s motion and reverse and remand the granting of plaintiff’s motion.

LaGuarta, Gavrel & Kirk, Inc., defendant below, was the maker of a promissory note dated December 21, 1975 in the amount of $699,726.00. R & P Enterprises, plaintiff below, was the payee and holder. The note was secured by a vendor’s lien on certain real property. A deed of trust was also executed from defendant to Eugene J. Pit-man, Trustee, covering the property. The deed of trust provided for a trustee’s sale of the described property to be conducted upon default on the promissory note according to the terms of Tex.Rev.Civ.Stat.Ann. art. 3810. There was a default on the first anniversary of the note; the trustee sold the property at public auction on April 5, 1977 to the plaintiff for $500,000.00. The plaintiff then brought suit to recover the deficiency due, attorney’s fees, 10% interest from the note’s maturity, and ad valorem taxes owing on the property.

Both parties moved for summary judgment. Attached to the plaintiff’s motion were the affidavits of Titus Podea, one of plaintiff’s general partners, and Eugene J. Pitman, Trustee; the promissory note; the deed of trust; the Trustee’s notice of sale; correspondence between the parties subsequent to default; and the Trustee’s deed. The defendant filed a response to the plaintiff’s motion as well as filing a cross-motion for summary judgment. Both instruments were grounded upon the argument that the terms of the promissory note prohibited the cause of action for deficiency. In response to plaintiff’s motion, defendant also alleged that there were material facts at issue which were apparent on the face of the plaintiff’s pleading and proof. The defendant attached no proof to its response or cross-motion. The only other proof before the court was the deposition of Titus Podea. The trial court granted the plaintiff’s motion and denied the defendant’s motion. The defendant appeals.

In the first point of error, the defendant complains of the granting of the plaintiff’s motion for summary judgment on the ground that a material issue of fact existed as to whether or not the plaintiff had a cause of action for a deficiency judgment. The second point of error complains of the denial of the defendant’s motion for summary judgment on the ground that certain provisions of the promissory note expressly and unambiguously prohibited a cause of action for deficiency. The clause in question reads:

Notwithstanding any contrary items expressed or implied by the provisions of this note, it is expressly stipulated and agreed that the maker shall have personal liability for payment of this promissory note for and during the period ending with the second anniversary of the date of said note, after which time all obligatory payments having been made prior to said date, the maker shall have no personal liability for the payment of any balance owing upon this note, and the payee, or other owner or holder or holders of said note shall thereafter look solely to the enforcement of the liens securing the payment hereof for satisfaction of the balance owing hereon, it being expressly agreed that upon any enforcement of the liens securing payment hereof, the maker shall have no liability for any deficiency remaining unpaid or unsatisfied thereafter, should same fail to fully satisfy and pay the unpaid balance then owing. (Emphasis added).

It is the defendant’s contention that the emphasized portion of the above provisions operated to provide the holder of the note with the alternative, during the first two years, of foreclosing on the secured property or holding the defendant liable. (Emphasis ours). Consequently, he argues, as it was uncontroverted that the defendant defaulted within the two year period, the plaintiff is precluded from bringing a suit on personal liability after foreclosing on the property.

The question of whether a contract is ambiguous is one of law for the court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968). A contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). One rule of interpretation is that all parts of the contract are to be taken together and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intent of the .parties. Universal C.I.T. Credit Corp., supra. Another rule is that a contract is construed in accordance with its plain language. General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960). And finally, it is presumed that the parties intended every clause to have some effect. Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954). In actually construing a contract, the court will, if possible, give effect to all parts of the instrument and an interpretation that gives effect to all parts of an instrument and a reasonable meaning to all of its provisions will be preferred to one that leaves a part of the writing useless. Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.-Fort Worth 1970, writ ref’d n.r.e.).

In the case before us, after applying the appropriate rules of construction, we find that the provision is ambiguous. In order to be found unambiguous, a written contract must be so worded that it can be given a certain or definite legal meaning. One reasonable meaning must clearly emerge. Universal C.I.T. Credit Corp., supra. In the provision before us, it is not clearly evident that the phrase “upon any enforcement of the liens”, only refers to attempted action subsequent to the foreclosure after the two year period. There is no particular grammatical device utilized which refers that phrase to any particular period of the life of the promissory note. The meaning of the contract is reasonably susceptible to more than one meaning and parol evidence was properly admitted to remove the ambiguity of the words used in the contract. Trinity Universal Ins. Co. v. Ponsford Brothers, 423 S.W.2d 571 (Tex.1968). The only summary judgment proof offered on the question of the interpretation of this provision was the deposition by Titus Podea, an interested party. Although Tex.R.Civ.P. 166-A(c) now provides that summary judgment may be based upon the uncontroverted testimonial evidence of an interested witness, the evidence must be clear, positive, and direct; otherwise credible and free from contradictions and inconsistencies; and could be readily controverted. Podeas’ testimony was not of that quality and therefore the plaintiff did not establish as a matter of law that the parties’ intent was as it was alleged to be. Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975). The trial court improperly granted plaintiff’s motion for summary judgment. The defendant adequately raised the issue in both his own motion for summary judgment and in its response to the plaintiff’s motion for summaryjudgment. J. E. Feller, Inc. d.b.a. Programmed Security Corporation v. Southwestern Bell Telephone Company, 581 S.W.2d 775 (Tex.Civ.App.-Houston [14th Dist.], 1979). The defendant, however, offered no proof of its contentions in either instrument filed with the court. Therefore, the trial court properly denied the defendant’s motion for summary judgment. Tex.R.Civ.P. 166-A.

The first point of error is sustained. The second point of error is overruled.

The trial court’s denial of defendant’s motion for summary judgment is affirmed. The granting of the plaintiff’s motion for summary judgment is reversed and remanded.


author: OSBORN, Justice.

text:
    H. B. ZACHARY, dba H. B. Zachary Co., Appellant, v. William James CARSON, et ux., Appellees.
    No. 6846.
    Court of Civil Appeals of Texas, El Paso.
    July 18, 1979.
    Smith, Davis, Rose, Finley & Hofmann, Richard W. Davis, Charles J. Wittenburg, San Angelo, for appellant.
    Cavender & Swanson, Stephen L. Swanson, Pasadena, for appellees.
   OPINION

OSBORN, Justice.

This appeal of an order overruling the Appellant’s plea of privilege involves the question of whether a Tex.R.Civ.P. 93 denial of capacity in a plea of privilege requires proof of capacity in a Subdivision 14, Art. 1995, Tex.Rev.Civ.Stat.Ann. venue hearing. We hold that it does not, and affirm the judgment of the trial Court.

Appellees brought this suit for damages to their home, allegedly the result of blasting done during interstate highway road construction. Suit was filed against H. B. Zachary, individually and doing business as H. B. Zachary Co. Service was had on H. B. Zachary. No corporation was sued and no service was had upon any corporation as reflected by the record before this Court. From the record before us and statements made by counsel for Appellant during oral argument, it appears that the road construction work, including blasting operations, was performed by a corporation.

The Appellant filed a standard plea of privilege, stating that he was not a resident of the county in which the suit was instituted and that no venue exception existed. The amended plea of privilege also contained the following:

Defendant avers, under Rule 93, Texas Rules of Civil Procedure, that he is not liable in the capacity in which he is sued, individually nor dba H. B. Zachary Co., in neither such capacity performing road construction incident to Interstate 10 or on about the dates alleged in Plaintiffs’ pleadings.

In their controverting affidavit, the Appel-lees relied on Subdivision 14 and did not address the capacity denial in the affidavit or at the plea of privilege hearing.

The venue facts which a plaintiff suing for damages to real property must establish under Subdivision 14 are (1) that the suit is for damages to real property; and (2) that the land or a part thereof is located in the county in which the plaintiff files the suit. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); First National Bank of Yorktown v. Pickett, 555 S.W.2d 547 (Tex.Civ.App. — Corpus Christi 1977, no writ). The Appellees testified that their home was in the county where the suit was filed, and- that they were alleging damages done to their home which was located on this property. Their original petition was offered in evidence.

It is not necessary for a Subdivision 14 plaintiff to establish by extrinsic evidence that the defendant is prima facie liable for the damages. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1974); 1 McDonald, Texas Civil Practice sec. 4.22.4 (1965). Stated differently, Subdivision 14 requires suit in the county of the land’s situs without regard to the question of responsibility. Eubank, Pleading — Venue— Venue Facts That Must Be Proved Under Subdivision 14 of Article 1995, 32 Tex.L. Rev. 617 (1954); Tennessee Gas & Transmission Co. v. Heard, 190 S.W.2d 518 (Tex.Civ.App. — San Antonio 1945, no writ).

But it must be determined whether the filing of a sworn denial of capacity changes this law. We hold it does not. Capacity is not an element of a Subdivision 14 venue exception, and a defendant cannot add an additional element to this Subdivision simply by the use of a sworn denial of capacity or any of the other Rule 93 pleas. To require the Appellees to prove that the Appellant was the party responsible for the blasting would in essence require them to prove their cause of action, a burden much heavier than that contemplated by exception 14. See 32 Tex.L.Rev. 617 (1954) at 618. The Appellees’ claim of damage to their property in the county where the suit was filed was sufficient to sustain venue under Subdivision 14 of the venue statute.

The judgment of the trial Court is affirmed.


author: LESTER, Judge.

text:
    ISLAND CREEK COAL COMPANY, Appellant, v. Robert Thomas BROWDER, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellee.
    Court of Appeals of Kentucky.
    April 14, 1978.
    Larry L. Johnson, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for Special Fund and Yocom.
    Dick Adams, Adams & Massamore, Madi-sonville, for appellee Browder.
    Before HOWERTON, LESTER and WHITE, JJ.
   LESTER, Judge.

This appeal involves only the question of the percentage of apportionment required by KRS 342.316(13)(a), between the Special Fund and Island Creek Coal Company, a Delaware Corporation, for the disability caused by the occupational disease of Robert Thomas Browder.

The Workmen’s Compensation Board found Browder had contracted coal worker’s pneumoconiosis due to his work as a coal miner, which resulted in his total and permanent disability as of June 3,1975, the last day of his employment. In 1965, West Kentucky Coal Company, a New Jersey Corporation, merged with Island Creek Coal Company, a Maine Corporation, to become Island Creek Coal Company which incorporated in Delaware. Since Browder began with West Kentucky in 1935, the merger caused him to finish his employment with Island Creek. The Board regarded the merger as creating multiple employers for the purposes of apportionment in KRS 342.-316(13)(a) and thus apportioned liability for compensation seventy-five percent to the Special Fund and twenty-five percent to the employer instead of sixty percent to the employer and forty percent to the Special Fund as in the case of single employment. The circuit court reversed and required apportionment as if Browder had only had one employer. We affirm the circuit court.

The merger agreement of this foreign corporation recites that Island Creek Coal Company succeeded to all assets and liabilities of Island Creek of Maine and West Kentucky of New Jersey. We believe the responsibility of compensation for the disability of Island Creek’s employees was one of the liabilities incurred as a consequence of the merger. The transaction of merger did not affect the day to day operation of the mine which went on as usual with the attendant hazards. KRS 342.316(13)(a) provides for a lesser contribution by the employer for disability where it cannot be conclusively shown that the employee’s occupational disease stemmed from labor for that employer. The statute did not contemplate placing the increased burden on the Special Fund due to a corporate combination which has no relation to the continuing employment of the claimant with the original corporation and its successor.

The judgment is affirmed.

All concur.


author: REYNOLDS, Judge.

text:
    MIDDLE STATES COAL CO., INC., Petitioner, v. Hon. John Chris CORNETT, Circuit Judge, etc., Respondent, and Cordell H. Martin, Intervenor.
    Court of Appeals of Kentucky.
    Dec. 8, 1978.
    As Modified March 2, 1979.
    John C. Collins, Walter W. Turner, Turner & Collins, Salyersville, for petitioner.
    C. Graham Martin, Hindman, for respondent.
    James Samuel Doyle, Karen Martin Doyle, Prestonsburg, for intervenor.
    Before HOWARD, REYNOLDS and WINTERSHEIMER, JJ.
   OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION

REYNOLDS, Judge.

This case is before us on a petition for a writ of prohibition and is filed pursuant to Civil Rule 76.36. The petitioner (hereinafter Middle States) is a defendant in a trespass action currently pending in the Magoffin Circuit Court before the respondent. Middle States filed a motion in that action requesting the respondent to disqualify himself from further judicial proceedings in the case. The grounds for the motion were the same as are alleged on the petition: that Cordell H. Martin is co-counsel for the plaintiff in the suit; that he is married to the respondent’s sister; and that the respondent must therefore disqualify himself pursuant to KRS 26A.015(2)(d)(2). That motion to disqualify was denied by the respondent, who relied upon Attorney General’s opinion 77-286.

KRS 26A.015(2) provides in part as follows:

Any justice or judge of the Court of Justice . . . shall disqualify himself in any proceeding . . . [wjhere he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person . [i]s acting as a lawyer in the proceeding and the disqualification is not waived by stipulation of counsel in the proceeding filed therein. [Emphasis added].

The Attorney General’s opinion relied upon apparently overlooks the emphasized language, and we believe that, on its face, this statute clearly disqualifies the respondent from sitting on the case.

While the statute does not expressly indicate whether the degree of relationship is to be computed according to the civil law method or the common law method, the judicial canon upon which it is based expressly provides that “the degree of relationship is calculated according to the civil law system.” SCR 4.300(C)(3)(a). It would appear that it has never been determined which of the two methods is to be employed in Kentucky. See Wells v. Walter, Ky., 501 S.W.2d 259 (1973). However, it is not necessary to make that determination under the circumstances of this case, for the respondent’s sister is clearly within the third degree of relationship notwithstanding the method of computation. By the common law method, the degree is ascertained by counting down from the common ancestor to the more remote party, while under the civil law method degrees are counted up from one party to the common ancestor and then down to the other party. 46 Am. Jur.2d Judges § 142. Hence, the respondent is in either the first or the second degree of relationship to his sister. Since Mr. Martin is the spouse of a person within the third degree of relationship to the respondent (his sister), and is acting as a lawyer in a proceeding before the respondent, the statute declares that the respondent must disqualify himself.

The respondent and the intervenor, Cor-dell H. Martin, have raised constitutional questions regarding the statute’s validity. We do not reach those issues in this proceeding, however, because Middle States has failed to show that they are entitled to the extraordinary remedy of a writ of prohibition.

It has long been the rule in this jurisdiction that the Court of Appeals will not issue writs of prohibition to lower courts except in two classes of cases:

(1) Where they are threatening to proceed, or are proceeding, in a matter in which they have no jurisdiction and there is no remedy through an application to an intermediate court, and (2) Where, although proceeding within their jurisdiction, they are exercising or about to exercise it erroneously and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result to the applicant if they should do so. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915, 917 (1940).

It makes no difference whether the question of disqualification is labelled as one of “jurisdiction” or otherwise. In either instance the extraordinary remedy of prohibition cannot be invoked unless there exists no other adequate remedy. The discussion in Annot., 92 A.L.R.2d 306, 322-330 (1963), makes it clear that all of the Kentucky decisions turn on this factor.

The alternate remedy usually available is that of appeal. Unless there is shown to be no adequate appellate remedy, a writ may not issue. Duffin v. Field, 208 Ky. 543, 271 S.W. 596 (1925); Jake’s Fork Coal Co. v. Wells, Ky., 362 S.W.2d 728 (1962); Comley v. Meigs, Ky., 578 S.W.2d 39 (1979). Furthermore, the fact that no appeal may be taken from an interlocutory order is not by itself sufficient to invoke the remedy of prohibition. Cross v. Wilson, Ky., 325 S.W.2d 309 (1959).

For purposes of examining what constitutes an inadequate remedy by appeal, it is helpful to categorize Kentucky decisions that resulted in the issuance of a writ. One category involves disqualification by prohibition in suits for divorce. Conley v. Stivers, Ky., 445 S.W.2d 439 (1969); Howerton v. Price, Ky., 449 S.W.2d 746 (1970); and Wells v. Walter, supra. Since no appeal lies from a judgment of divorce, there was absolutely no other remedy available in these cases. A second group involves criminal cases in which the Commonwealth questioned the impartiality of the trial judge. Because the Commonwealth could not appeal from a verdict of acquittal in these cases, the Court of Appeals found that there was no adequate remedy by appeal. Smith v. Ward, 256 Ky. 13, 75 S.W.2d 538 (1934); Commonwealth by Cooper v. Howard, 267 Ky. 287, 102 S.W.2d 18 (1937); and Commonwealth ex rel. Meredith v. Murphy, 295 Ky. 466, 174 S.W.2d 681 (1943). In still other criminal cases it was recognized that because the defendant in question was faced with multiple indictments, and, if convicted, would be forced to take numerous appeals, the remedy of appeal would not be adequate. Thus, the Court considered the question of disqualification on a petition for a writ of prohibition. Farley v. Lowe, Ky., 382 S.W.2d 409 (1964); and Young v. Bertram, Ky., 398 S.W.2d 504 (1966). The instant ease does not even remotely resemble any of these categories.

In only four other cases has the Court of Appeals of Kentucky deemed it appropriate to disqualify a judge by writ of prohibition. They are: Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940); Rush v. Denhardt, 138 Ky. 238, 127 S.W. 785 (1910); Wyatt v. Ropke, Ky., 407 S.W.2d 410 (1966); and Barnes v. Cooper, Ky., 507 S.W.2d 157 (1974). These are readily distinguished from the case at bar because in each there were allegations of bias or prejudice which, if true, would have resulted in either irreparable injury to the petitioner or an arbitrary and prejudiced exercise of power detrimental to the petitioner. In this proceeding no such allegations are made or even suggested. In fact, Middle States has indicated that it cannot avail itself of the alternate remedy provided by KRS 26A.020 because “petitioner does not know whether the judge will render a fair and impartial trial.”

It should be noted that all of the cases cited herein were decided under the authority of previous Section 110 of the Kentucky Constitution. That provision empowered the Court of Appeals with a general control over lower courts. It may be that the authority of this Court to issue writs is not so broad, for Section 111(2) contains no “general control of inferior jurisdictions.” We need not resolve that question however, because in the face of the cases discussed we do not believe that it would be appropriate for us to issue a writ even if this Court were vested with the power granted by previous Section 110.

Given the circumstances of this case, we feel that the statement of the court in Jake’s Fork Coal Co., supra, at 729-30 is appropriate:

In the final analysis, a refusal to vacate the bench can never, in and of itself, create any injury or damage. The damage, if any, remains prospective, in that it must result from his further and subsequent conduct of the proceedings. Therefore, in determining whether the extraordinary remedy of prohibition is appropriate, it becomes necessary to consider the nature of the proceedings and the adequacy of the review procedures that are applicable to the further orders and judgments that may be entered by the judge who has refused to vacate.

Not only does the petitioner have a right to appeal from the final judgment, but also the rules provide a reasonable means for relief from an adverse judgment pending appeal. See CR 73.04. Furthermore, the questions regarding the constitutionality of the statute can, if raised, be better treated on appeal.

For these reasons it is ORDERED that the petition for a writ of prohibition be and is hereby DENIED.

      . An earlier opinion and order in this case, published in the advance sheets at 576 S.W.2d 250, has been withdrawn by order of this Court.

      . Section 110, before repeal, provided:
      The Court of Appeals shall have appellate jurisdiction only .... Said Court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.

      . Section 111(2) provides:
      The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction.


author: COOPER, Judge.

text:
    Kathleen Boyd MUNDAY and Turner, Dixon and Kemp, Attorneys, Appellants, v. William Porter MUNDAY, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1979.
    Rehearing Denied July 13, 1979.

      Paul K. Turner, Turner, Dixon & Kemp, Hopkinsville, for appellants.
    Milburn C. Keith, Keith & Myers, Hop-kinsville, for appellee.
    Before COOPER, LESTER and WIL-HOIT, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Christian Circuit Court concerning division of property, maintenance and attorneys’ fees from the dissolution of marriage of Kathleen Boyd Munday and William Porter Munday.

The appellant, Kathleen Boyd Munday, age forty-four (44), and the appellee, William Porter Munday, age forty-five (45), were married on September 19, 1970, in Hopkinsville, Kentucky. \ There were no children born of this marriage; however, it was the second marriage for each of the parties and each of them had children by their previous marriages.

At the time of the marriage, appellant owned her own home in Hopkinsville. She also owned her automobile, her country club stock, and approximately $2,500 in her checking and savings accounts. She was employed as a receptionist at Bass and Company where she drew a salary and received medical insurance coverage free, plus a retirement plan.

Appellee has been employed as an investment security salesman and manager for J.J.B. Hilliard & Lyons, Inc. in Hopkinsville and Bowling Green, and continued in that employment throughout the marriage. The appellee moved into appellant’s house after the marriage and continued to live there approximately 2 to 2V2 years when the home was sold. Appellant testified that she received a net proceeds check of $17,300 which she endorsed and gave to appellee at his request, and she did not know what he did with the money once she gave it to him. When asked what happened to the proceeds from the sale of the house, the appellee stated in his first deposition, “It’s really impossible to trace that money. I don’t know if the money was spent or used to purchase the residence or securities or anything.” (The reference to “residence” refers to the present residence of the parties.)

However, he later testified that he believed these funds were placed in a joint account for the benefit of appellant and that she spent them, which she denied. Nowhere in the record has the appellee ever denied that he received the check for $17,-300 which appellant was paid for her own residence.

During the pendency of the action, appellant was awarded the marital residence as a home for herself and her two daughters (one of whom was in college) and $1,000 per month temporary maintenance, with appel-lee paying all mortgage payments, insurance and taxes on the family residence.

During the marriage, appellee set up a Clifford-type Trust for appellant’s children with a principal of $10,145, naming the appellant as trustee, with the principal to revert to appellee in 1984. Additionally, without appellant’s knowledge, he transferred some $23,000 into a custodial account for the benefit of his children. The trial court included in the marital estate the Clifford Trust, which benefits appellant’s children but reverts to appellee, but did not include in the marital estate the $23,000 secretly transferred to appellee’s custodial account for the benefit of his children.

It will be noted that as part of the division of marital property, the trial court awarded the 1984 Clifford Trust reverter to appellant and charged her with the face value of $10,145. This appears to us as being inequitable, and the actual value of the trust at the time of the judgment must be determined and charged against her.

The trial court awarded appellant no maintenance in the final decree and she received, as her share of the marital estate, her clothing, furniture, her car, the residue of the Clifford Trust, which she cannot receive until 1984, and the sum of $5,561 which the court ordered to be paid over a period of five years at the rate of $92.68 per month.

The court awarded the appellant $1,000 of the $4,000 attorneys’ fees that were charged.

Four questions have been asked concerning this matter as follows:

I.Did the trial court properly assign the nonmarital property to each spouse?
II.Did the trial court properly divide the marital property and, if so, was the court correct in installment payments without interest?
III. Was appellant entitled to maintenance?
IV. Was the award of attorneys’ fees to appellant proper?

This Court has handed down several decisions, including Turley v. Turley, Ky.App., 562 S.W.2d 665 (1978), and others, requiring tracing of premarital property.

As was stated in the concurring opinion in the above styled case at page 670, “The purpose of the classification of property as marital and nonmarital is to vacilitate restoration to each party of his property which was acquired outside the marriage and to divide that which was accumulated during the marriage.”

It appears that the appellant had as premarital property furniture, $2,500 in savings and checking accounts, country club stock valued at $900, and her residence which sold for a net sum of $17,300.

Appellant testified that they sold her residence for a net sum of $17,300, and she endorsed the check to the appellee and does not know what he did with the proceeds. Appellee did not deny this on his first deposition, but only indicated that he didn’t know how the money was spent; but at a later date stated he thought it was deposited in appellant’s account and that she spent it. Appellee’s accountant stated that in his opinion, the appellant had premarital assets in excess of $18,000. We believe, under the circumstances, it is incumbent on the appellee to furnish convincing evidence that the appellant received the $17,300 or otherwise it will be considered premarital property.

It was clearly erroneous not to award interest on deferred payments to appellant. See Johnson v. Johnson, Ky.App., 564 S.W.2d 221 (1978).

It is the contention of the appellant that maintenance should have been allowed, which is disputed by appellee. We believe the trial court should take another look at this matter, after having re-evaluated the entire case.

The court awarded the appellant $1,000 for her attorneys’ fees which was one-fourth of the amount charged. We believe this was within the discretion of the court.

In Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975), the Court was faced with the question of an allowance of attorneys’ fees in an action for dissolution of marriage. The Court, in considering the question, stated at page 514:

If there has ever been any doubt regarding the discretionary authority of the trial court to allocate court costs and award an attorney’s fee, KRS 403.220 laid that doubt to rest once and for all. As matters now stand, an allocation of the court costs and an award of attorney’s fees are entirely within the discretion of the court.

We must point out that as a reviewing Court, we may not merely substitute our judgment for that of the lower court. The findings of a chancellor in a divorce case may not be disturbed unless they are clearly erroneous. CR 52.01; Adams v. Adams, Ky., 412 S.W.2d 857 (1967).

The judgment of the circuit court is affirmed in part, reversed in part and remanded with directions to make new findings of fact and to enter a new judgment consistent with this opinion.

All concur.


author: VANCE, Judge.

text:
    Myron Lance ALLEN, Appellant, v. Fannie Alma ALLEN, Appellee.
    Court of Appeals of Kentucky.
    July 6, 1979.

      J. Granville Clark, Russellville, for appellant.
    G. D. Milliken, Jr., Bowling Green, for appellee.
    Before HAYES, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

In this dissolution of marriage proceeding appellant contends the trial court erred in the following respects:

1. Failure to restore to appellant a savings account of $5,248.23 as nonmari-tal property.
2. Failure to allocate a portion of wife’s farm as marital property due to permanent improvements made by appellant.
3. Failure to place any value on household furnishings awarded to the wife.
4. Failure to award appellant ½ of a $6,200.00 joint bank account.

At the time of marriage appellant had an interest in a retirement fund at his place of employment valued at $5,248.23. During the marriage this retirement fund increased to approximately $22,000.00. Appellant retired and withdrew the $22,000.00. Of this amount the $5,248.23 constituted non-marital property. It was not allocated as such because the trial judge felt it had not been traced into a present asset as required by Sharp v. Sharp, Ky., 516 S.W.2d 875 (1974) and Turley v. Turley, Ky.App., 562 S.W.2d 665 (1978).

When the retirement fund was withdrawn the parties spent $14,000.00 for various marital purposes and deposited $8,000.00 in a savings account. Subsequently the parties sold a farm and realized a profit of $32,000.00 on the sale. This $32,-000.00 was also deposited in the savings account. At the year’s end the parties were confronted with a substantial income tax liability of approximately $8,000.00 as a result of the farm sale. The sum of $8,000.00 was withdrawn from the savings account to pay the taxes. From the time of the initial deposit into the savings account the balance in that account was never less than $5,248.23.

Although our cases have interpreted KRS 403.190 to require a “tracing” of non-marital assets, the concurring opinion in Turley v. Turley, supra, points out some of the difficulties which are often encountered as a result thereof. We think the requirement of tracing should be fulfilled, at least as far as money is concerned, when it is shown that nonmarital funds were deposited and commingled with marital funds and that the balance of the account was never reduced below the amount of the nonmari-tal funds deposited. Such was the situation here. It was not a literal tracing in the strict sense of the word, but our conclusion does no violence to the purpose of the statute, which is to equitably divide that which was accumulated by “team effort.” There can be no accumulation unless the parties have more at the end of the marriage than they had in the beginning. The appellant is entitled to restoration of the $5,248.23 as nonmarital property.

Permanent improvements to the farm were made during the marriage. These consisted of digging water wells; clearing fence rows and clearing several acres of woodland; adding a new room and bathroom to the house, including plumbing and wiring; and installing new fencing, posts and gates.

The testimony indicated the farm was worth $25,000.00 at the time of marriage and $125,000.00 at the time of separation. An expert witness testified that one-half of the increase was due to inflation and the other one-half due to improvements and the husband-like manner in which appellant had tended the farm.

There was other testimony that in some respects the farm had been allowed to run down, and that except for inflation, it had no greater market value. These other witnesses did not contradict that some permanent improvements were placed upon the farm or that the improvements added something to the value of the farm.

The trial judge did not assign as marital property any increase in value of the farm due to the labor and expenditure in improving the farm during the marriage. We think some value must be so assigned because even if the market value of the farm is no greater now than in the beginning, it is without dispute that because of the improvements the value is greater than it would be without them.

The income produced by the farm during the marriage was marital income, and the benefits the parties received in living on the land were marital benefits, and appellant’s interest in the improvements to the land cannot be offset by the personal benefits he received from living on the land.

The parties had a joint bank account containing $6,200.00 at the time of separation. Appellee withdrew $3,100.00. She then filed a motion for an allowance for child support and maintenance during the pend-ency of the action. No order was entered on the motion, but the judgment recites that the parties agreed the wife could use the $3,100.00 she withdrew for living expense and that she would not be charged therewith in the division of the property.

The court found that the bank account of $6,200.00 was marital property. Since the wife was permitted to withdraw $3,100.00 and was not chargeable therefor, the marital account was reduced to $3,100.00. The court found that the parties were entitled to an equal division of marital property. The judgment which required appellant to pay the entire $3,100.00 remaining in the bank account to the appellee was erroneous. He should have to pay over only one-half of the account.

Appellant complains that the wife was awarded the household furniture and appliances without having a value placed upon them. Neither party placed in the record any credible evidence of the value of the household goods. The appellant moved into a house trailer which was furnished. The court found that appellant had adequate household goods to meet his needs and that appellee needed the furniture and appliances in the house for herself and the infant child whose custody she was given. On this record we cannot say the award of the household furnishings was unjust.

The judgment is reversed for the entry of a new judgment in conformity with this opinion. In his discretion the trial judge may permit the introduction of additional evidence on the question of the extent of the value of the farm attributable to team effort during the marriage.

All concur.


author: HOWERTON, Judge.

text:
    Ronald Earl MULLINS, Appellant, v. Lois Ann MULLINS, Appellee.
    Court of Appeals of Kentucky.
    July 13, 1979.

      Richard E. Wentz, Covington, for appellant.
    Stephany Tsanges, Covington, for appel-lee.
    Before COOPER, HOWERTON, and REYNOLDS, JJ.
   HOWERTON, Judge.

Ronald Earl Mullins appeals from an order of the Kenton Circuit Court modifying a settlement agreement by eliminating his right to claim the parties’ children as dependents on his income tax returns. The sole question for determination is whether the decision was erroneous due to the court’s failure to enter findings of fact.

The parties were divorced on August 27, 1973. The dissolution decree incorporated a settlement agreement, which among other things allowed Ronald to claim the children as tax exemptions.

On August 23, 1977, Lois filed a motion seeking an increase in child support and an order requiring Ronald to pay extraordinary medical expenses. The trial court denied the request for an increase, but ordered each party to pay one-half of the medical bills not covered by insurance. Those rulings are not challenged. In addition, however, Lois moved the court to hold Ronald in contempt for failure to pay the required child support and to allow her to claim the children for income tax purposes. The trial court determined that Ronald was $3,520.00 in arrears in his support obligations and ordered him to pay an additional $20.00 per week until the delinquent sum was fully paid. The court further abated the settlement agreement provision pertaining to tax exemptions, which in effect would allow either party providing over one-half of the support for the children to claim them for tax deductions. Ronald now contends that the order modified the settlement agreement for which findings of fact are required but were not made.

In Williams v. Williams, Ky.App., 554 S.W.2d 880 (1977), this Court held that a provision allowing a party to claim children for tax purposes was an element of maintenance or support. That being the case, any modification of the provision must be accomplished via KRS 403.250(1), which precludes modification unless there has been “changed circumstances so substantial and continuing as to make the terms of the original agreement unconscionable.” “Unconscionable” has been defined as meaning “manifestly unfair and inequitable.” Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511, 513 (1974).

Burnett v. Burnett, Ky., 516 S.W.2d 330 (1974), indicates that a trial court should make findings of fact when a motion for modification under KRS 403.250(1) is granted. This is true, although CR 52.01 might indicate contra. Unless the court makes appropriate findings of evidentiary facts, it cannot be determined whether the requirement of the statute as to a showing of change of conditions has been satisfied. The court did note, however, that CR 52.04 may require that a party request findings of fact in order to preserve the basis for a reversal or remand. Burnett, supra, 516 S.W.2d at 332, see n. 1. We take note at this point that Ronald requested both a modification of the judgment and findings of fact. The motion to modify was denied, and no ruling was ever made on the request for findings.

It is obvious that this case involves the modification of the settlement agreement. Although Lois argues that an abatement of a provision is not a modification, it cannot be denied that Ronald no longer has an absolute right to claim the children for tax purposes. According to Ronald, this right was about the only benefit he received in the settlement agreement.

It could be argued that the judgment supports the modification, in that the order did find Ronald to be $3,520.00 in arrears on his child support. That fact alone could be construed to render unconscionable a prior agreement permitting Ronald to claim the children as income tax dependents. Also, the fact that Lois has been more or less the sole supporter of the children constitutes a substantial change within the meaning of KRS 403.250(1).

We conclude, however, that better practice dictates that we remand this case to the circuit court for appropriate findings of fact to be made from the record herein, and for any necessary modification of the order of December 1,1977, as may be required by the findings.

All concur.


author: MANFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Jackie Dean WICKIZER, Appellant.
    No. 30033.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from jury conviction for assault with intent to do great bodily harm with malice. Court imposed sentence of five years in the penitentiary. Motion for new trial was timely filed and from the overruling of that motion, this appeal followed. Reversed and remanded.

Appellant raises four points on appeal, but in light of the conclusion reached in this opinion, only Point II is considered. Point II reads as follows:

“The trial court erred in overruling appellant’s motion to quash jury panel without granting appellant an evidentiary hearing thereon, in that such refusal to allow appellant to present evidence in support of his motion deprived him of his fundamental right to be heard upon his challenge to the composition of the jury panel and thus abridged his rights under the sixth and fourteenth amendments to the United States Constitution.”

Appellant filed timely motion to quash the jury panel, alleging violation of his constitutional rights under the sixth and fourteenth amendments of the Constitution of the United States. The basis of this alleged violation was § 494.031, RSMo 1969, which relates to the exclusion of women from jury service.

Counsel for appellant made an offer of proof in support of the motion, to which the state objected. The court sustained the objection and no evidentiary hearing was afforded the appellant.

Appellant was entitled to offer his proof on the question, and the court was obligated to permit such offer. Outright refusal by the trial court was violative of appellant’s constitutional right to due process and hence was reversible error.

The trial court was bound by the decision of our State Supreme Court in State v. Duren, 556 S.W.2d 11 (Mo.banc 1977) (which, while holding the evidence in Duren was insufficient on the question, nevertheless observed the right to an offer of proof on the question) and by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Concluding herein that action by the trial court was reversible error under the State Supreme Court decision of State v. Duren, supra and the United States Supreme Court decision in Taylor v. Louisiana, supra, no valid purpose would be served by including a dissertation of the decision in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), although it is obviously recognized as being binding upon our courts.

This cause, for the reasons set forth herein, is reversed and remanded for retrial of the issues upon their merits.

All concur.


text:
    John L. SULLIVAN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30106.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.

      Joseph R. Borich, Collet, Borich & Dert-ing, Kansas City, for movant-appellant.
    John 0. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from order denying post conviction relief pursuant to Rule 27.26. An evi-dentiary hearing was held, with the trial court entering findings of fact and conclusions of law, thus adhering to the rule of Fields v. State, 572 S.W.2d 477 (Mo.banc 1978).

This appeal does not challenge the volun-tariness of the guilty pleas to burglary and stealing, but alleges error in the trial court’s failure to find ineffective assistance of counsel upon defense counsel’s alleged failure to review, explain and correct the pre-sentence investigation report, error in trial court’s alleged consideration of illegally obtained admissions in the sentencing procedure and error in that movant allegedly suffered cruel and unusual punishment due to the unfair judicial process by which the. particular punishment was determined.

Careful reading of the transcript fails to reveal evidence to support movant’s contentions and because of such, they lack merit inherently.

In addition and more precisely applicable to the case herein, is the rule which precludes this court from reviewing the first two contentions of movant. These two issues are precisely related to sentencing and by their very nature, do not fall within the scope or purview of Rule 27.26. See Green v. State, 494 S.W.2d 356 (Mo. banc 1973); Smith v. State, 517 S.W.2d 148 (Mo.1974) and Sheppard v. State, 560 S.W.2d 347 (Mo.App.1977).

At the time of the hearing on the 27.26 motion, movant’s counsel was granted leave to orally amend the motion. This amendment included an abstract declaration of a violation of movant’s constitutional rights. Such abstract statement preserved nothing for review by this court under Rule 84.04 and unless the evidence supports some manifest injustice pursuant to Rule 27.20, there is nothing to review by this court.

A review of the evidence establishes the trial court assured movant’s pleas of guilty were voluntary, that movant was granted a pre-sentence investigation, that movant was prewarned the trial court was not bound by the recommendation within the pre-sen-tence investigation report and that the punishment imposed was well within the maximum range affixed by statute for the particular offenses.

Movant cannot prevail under Rule 27.20 because there was, by even the most remote contention, no evidence to even intimate, let alone establish, plain error or manifest injustice.

For the reasons set forth herein, the order of the trial court is in all respects affirmed.

All concur.


author: WEIER, Chief Judge.

text:
    Richard Glen HELMS, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38735.
    Missouri Court of Appeals, Eastern District.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    John M. Williams, Flat River, for mov-ant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Union, for respondent.
   WEIER, Chief Judge.

On May 11, 1973, Richard Glen Helms, hereinafter referred to as movant, pleaded guilty to first degree murder of one Glen Helms, Sr., and was sentenced to life imprisonment. Helms thereafter filed a motion to vacate his conviction and sentence under Rule 27.26, which after an evidentia-ry hearing was denied. We now affirm the ruling of the trial court.

On appeal movant contends that the trial court erred in finding that the plea of guilty was voluntarily entered and knowingly made when evidence supported the fact that movant was under the influence of drugs. In addition to this contention, he maintains that he was not competently represented by counsel at the time of entering his guilty plea and that the court should have so found from the evidence submitted in support of the motion.

Specifically the record of the guilty-plea hearing which was held on May 11 indicated that Helms had received a psychiatric examination at the State Hospital in accordance with a prior order of the court and that the complete report had been introduced at the time of the guilty-plea hearing and later on introduced as an exhibit at the time of the hearing on the motion to set aside conviction and sentence. This report indicated that on the basis of the examination the defendant had no mental disease or defect and was capable to proceed and understand what he was doing. Prior to the taking of the plea, the court inquired of Helms whether he was presently under the influence of alcohol or narcotics and to this question movant answered “No, sir.” Sheriff Richards, who had had the movant in custody over nine months before the guilty-plea hearing, stated that he had seen Helms practically daily and had held conversations with him. He recalled his demeanor on the day the plea of guilty was taken by the court and contrary to Helms’ contention that he was joking and laughing in the courtroom, said that Helms was solemn and had tears in his eyes. Although the sheriff had checked the premises of the jail while Helms was there, hi'had never found drugs of any kind during the time that he was there.

Helms testified that he had ingested the cotton contents of two benzedrine inhalers the night before but could not remember that he had any alcohol prior to the plea hearing. His testimony in this respect was confirmed by another inmate at the jail who was there at the time of the hearing. His jail companion testified that Helms looked happy to him as if he were “in another world.” He also testified that during a prior jail break, Helms had taken some of the same drug and had spoken to him about seeing little green men while they were hiding in a barn following the break from jail.

Rule 27.26(j) provides that a review by this court on appeal from judgment in a motion 27.26 proceeding is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. “Clearly erroneous” means “ . . . although there is evidence to support the trial court’s finding, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.” Thurman v. State, 523 S.W.2d 521, 528[3] (Mo.App.1975). In a Rule 27.26 hearing, the judge is the trier of fact and as such determines the credibility of the witnesses. He is not required to believe movant even if his testimony is not contradicted. Martin v. State, 558 S.W.2d 701, 705[9] (Mo.App.1977).

The court determined that at the time of entering his plea of guilty Helms did so voluntarily, understood the charge and the consequences of the plea and was not under the influence of narcotics, drugs or otherwise mentally incapacitated. We have examined the record of the guilty-plea hearing and find that it was far-ranging and complete with respect to interrogation of the accused; that his answers were positive and left no doubt that he clearly understood what was transpiring. In fact in one instance where the defendant was asked whether he had been charged with two escapes from jail since he had been there, he answered that only one charge had been filed against him although there had been two escapes. This in itself indicated a clear state of mind with a full consciousness of the import of the proceeding. At that time he further denied he was under the influence of alcohol or narcotics. His demeanor according to the testimony of the sheriff has already been commented on in this opinion. The entire record supported the determination made by the court at the motion hearing that Helms was not under the influence of narcotics, drugs or otherwise mentally incapacitated.

We turn now to the second issue presented in this appeal. The contention as framed by movant charges that the trial court in determining that he was represented competently by counsel at the time he entered his guilty plea was without support in the evidence. Movant is charged with the burden of proof in establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). “Preponderance of the evidence” has been defined to mean “evidence which is more convincing as worthy of belief than that which is offered in opposition thereto.” Seago v. New York Cent R. Co., 349 Mo. 1249, 164 S.W.2d 336, 341[7] (1942). When a guilty plea is entered the burden of proving inadequacy of counsel is particularly heavy. Adequacy of representation in such cases is immaterial except as it bears on the issues of voluntariness and understanding. Martin v. State, supra at 705[8]; Baker v. State, 524 S.W.2d 144, 148[4] (Mo.App.1975).

In this instance, the court in its findings determined that the movant entered into his plea voluntarily and that he understood the charge and the consequences of the plea. The court further found that he understood his rights in attending a jury trial and the effect of a plea on those rights. To sustain this, the transcript of the guilty-plea hearing indicated that there were numerous questions by the court and answers by the movant. The murder charge was read to him and he was asked if he understood the charge to which he replied in the affirmative. The fact that the charge was first degree murder and that it carried at that time only one punishment of life imprisonment was explained to him in detail. The court asked Helms if he intentionally did the things that were charged in the indictment. To this he replied “Yes, sir.” He admitted that he had talked to his lawyer with regard to whether he should enter a plea of guilty and that his attorney had explained to him that he had a right to a trial by jury where he could call his witnesses if he so desired and could confront the state witnesses on cross-examination. He understood that by pleading guilty he was waiving the right of self-incrimination and was admitting that he had committed the crime charged. He stated that no one had threatened or coerced him or compelled him to make the plea and that he was doing it of his own free will. His attorney stated that he had discussed the possibility of filing a motion to suppress a statement made by Helms to the sheriff’s office. When asked as to what his decision was, the movant replied, “Not to do anything.” “Let it go.” He stated that he understood that he was waiving his right to have this statement suppressed. He also admitted that he had been charged with one escape and had actually participated in another one since he had been in jail and at his motion hearing admitted that he had talked to his attorney several times before the plea was taken. He understood that if he entered his plea to murder, the other charge of escape would not be pressed against him. There was abundant evidence to show that his plea of guilty was voluntary and that he made it with a full understanding of the charge and the consequences of such a plea. As such it meets the test of adequacy of counsel as set forth in Martin and Baker, supra.

Although movant complained that he had only seen his lawyer about ten minutes some two weeks prior to the hearing on the plea of guilty, he did admit that he had discussed a number of matters with his attorney on the day he entered the plea. Adequacy of counsel cannot be measured by the number of visits with the movant. Baker v. State, supra at 148[6].

This record does not clearly indicate that the trial judge was erroneous in denying the Rule 27.26 motion. The judgment is affirmed.

SMITH, CLEMENS, KELLY, STEWART, GUNN and STEPHAN, JJ., concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Tadeusz MISIAK, Plaintiff-Appellant, v. James P. AYLWARD, Jr., Administrator, Defendant-Respondent.
    No. 30326.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Rehearing Denied July 12, 1979.

      Michael J. Svetlic, Kansas City, for plaintiff-appellant.
    Al Lebrecht and Albert Thomson, Kansas City, for defendant-respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by plaintiff from judgment which awarded him $8,250 on his prayer for $50,-000 damages. The questions are whether there was an unambiguous contract for support of plaintiff for four years; and whether the judgment, for $8,250 was against the weight of the evidence. Affirmed.

Plaintiff filed two actions. The first was a claim for $34,233, against the estate of Mary Saylor, deceased, in the Probate Court of Jackson County. The second was a petition in the Circuit Court of Jackson County, CV77-3578, for equitable adoption by Mary Saylor, Count I, and for the same $34,233 sought in the probate claim, Count II.

The Probate Court denied the claim and plaintiff appealed to the Circuit Court of Jackson County. The appeal, CV77 — 4148, was consolidated for trial with the petition, CV77-3578. The prayer for damages in Count II of the petition was increased to $50,000. Upon conclusion of the trial the court dismissed the petition for equitable adoption and damages, and awarded plaintiff $8,250 on his claim against the estate of Mary Saylor. Appellant does not question the dismissal of his prayer for equitable adoption; but asserts his judgment should have been “for at least $18,000”.

Tadeusz Misiak was born in Poland, and had attended the University of Krakow. At 20 years of age, he had completed 2½ or 3½ years of college. He came to the United States October 21, 1976, on a visitors visa, which was changed to a student visa November 30, 1976.

Mary Saylor, born January 10, 1894, in Poland, and a citizen of the United States, residing at 3521 Harrison, Kansas City, Missouri, executed an “Affidavit of Support” in behalf of her nephew, Tadeusz Misiak, November 26, 1974. The affidavit was executed for the purpose of assuring the United States Government that Tadeusz Misiak “will not become a public charge in the United States.” The affidavit recited that Mrs. Saylor intended to furnish “all money as needed (and necessary) for food, shelter, clothing and personal expenses plus all books, tuition and related educational expenses for a period of 4 years (more or less).”

Mrs. Saylor paid Mr. Misiak’s expenses of travel to the United States and purchased a $4,000 automobile for his use. Mr. Misiak attended Donnelly College and Park College. . Mrs. Saylor paid all his expenses while at Donnelly, and all his expenses while at Park College through the first semester, 1977. Mrs. Saylor died in September, 1977.

Mr. Misiak first lived in Mrs. Saylor’s rooming house at 3521 Harrison, then moved to quarters at Park College in June, 1977. He was to earn his keep by helping around the rooming house. His expenses for the second semester, 1977 — 78, were $3,000. He also spent some $4,000 on dental work. He borrowed these sums from a cousin, Stanislava Bodner.

Mr. Misiak graduated from Park College in May, 1978, with a. degree in Economics and Business Administration. He had a desire to attend graduate school. Cost of a 2-year master’s program at Rockhurst, including room, board, tuition, fees and personal expenses was estimated at $18,000.

While in Poland, Mr. Misiak wrote Mrs. Saylor, and among other things stated, “I want to stay at your home for a year and go to work in this town”. If he returned to Poland, he would have to enter the Russian Army. His return would cost about $1,300.

Anna Lipski, who “had a way to bring people from Poland”, beginning in June, 1976, assisted Mrs. Saylor in bringing her nephew to the United States for education and a better life. Mrs. Saylor wished to assist her nephew “to become a real estate man or a lawyer”, and wanted to furnish him expenses for education and personal maintenance.

Mrs. Bodner knew of Mrs. Saylor’s desire to help Mr. Misiak particularly with respect to acquisition of a degree of “Business Administration in economics”. They also conversed with respect to an advanced degree in law school.

Mrs. Saylor’s accountant, Dan Laden, prepared the Affidavit for Support form executed by Mrs. Saylor, in furtherance of her intention to help Mr. Misiak to complete the “four years of college” he had begun in Poland. He stated Mrs. Saylor’s commitment was limited to four years of college at the most, and expressed such limitation with the language “for a period of 4 years, (more or less)”.

Stella Dudek, a niece of Mrs. Saylor, had been asked by Mrs. Saylor about Mr. Misiak residing with them in Illinois. They had no discussion concerning his education.

The court found that Mrs. Saylor “ * * * did indicate both to private individuals and to the Immigration Service that she intended to help this young man through the completion of a normal four-year education, not a Master’s Degree, not a P.H.D., not something more elaborate. * * There was an agreement which caused him to change his position in coming here and establishing himself as he did to complete a four-year education which would have been partly completed in the old country, but to complete the balance of it here so that he would be entitled to recover on his claim in some more modest sum than that prayed for * * * the recovery should be assessed in the sum of $8,250. That represents the $6,000 that he had to borrow plus walk-around money to cover those items not otherwise covered in the last portion of the college studies not financed by the deceased, and * * * $1,250 (plane fare) * * * making a total of $8,250. * * ”.

The judgment aforesaid was entered accordingly and the court’s findings are to be sustained unless there is no substantial evidence to support them, unless they erroneously declare or apply the law, or unless they are against the weight of the evidence, the last ground to be undertaken only with caution and a firm belief that the judgment is wrong. Rule 73.01, as construed, Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976).

Appellant contends the court erred in dismissing Count II of his petition and awarding but $8,250 on the probate claim for reasons: (I) “that the court should have enforced the contract pursuant to its clear and ordinary meaning to support * * * for a period of four (4) years absolutely, instead of * * * assuming the contract to be for support only until * * * completion of an undergraduate program”; and (II) that the judgment “was against the weight of the evidence in that the decedent expressed a clear desire to support * * * beyond undergraduate school while knowing that he had already obtained nearly enough credit hours to obtain the equivalent of an undergraduate degree in Poland”.

Appellant argues under (II) that the language quoted from the Affidavit for Support was. an unambiguous contract by Mrs. Saylor with the United States to provide support to her nephew as third party beneficiary. He argues under (II) that “the paltry amount of evidence” was not so substantial as to mandate a judgment for respondent, and that in fact, the overwhelming weight of the evidence mandated a judgment “in favor of appellant in the sum of at least $18,000.00”.

Appellant’s difficulty under point I is twofold: First, the language employed in the Affidavit for Support may not be said to constitute an unambiguous contract because such language is reasonably susceptible to different constructions. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (Mo.1940); First Nat. Bank of Malden v. Farmers New World Life Ins. Co., 455 S.W.2d 517 (Mo.App.1970).

Second, there is no third party beneficiary unless a contract has been formed between a promisor and a promisee. Restatement, Law of Contracts ¶ 140 (1937). The Affidavit for Support shows it was made to assure that Mr. Misiak would not become a financial burden; and it does not appear that Mrs. Saylor agreed to advance any money to her nephew for an education of 4 years more or less. The form states only such an intention.

Appellant’s difficulty under point II is equally patent. If the court believed the testimony of Mrs. Saylor’s accountant, Mr. Laden, on the extent of education expenses owed to her nephew, in conflict with that of his witnesses, the judgment must stand. The court found Mr. Laden’s testimony to be credible, and it does not appear otherwise on review. The $8,250 awarded plaintiff was based on the limitation thus accepted; and the evidence of the cost of the last semester of school and personal expenses for teeth, plus the cost of a return ticket to Poland.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Carol ANDERSON, Respondent, v. Albert L. ANDERSON, Appellant.
    No. KCD 30059.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Rehearing Denied July 12, 1979.

      James F. Crews, Kibbe, Crews & Gaw, Tipton, for appellant.
    William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, for respondent.
    Before SHANGLER, P. J., WASSER-STROM and CLARK, JJ.
   WASSERSTROM, Judge.

This is a dissolution of marriage proceeding in which the trial court divided marital property, awarded child support to the wife, and awarded her allowances for child support, maintenance and attorney’s fees. The husband appeals alleging error as follows: (1) in allowing the wife an interest in items which were the husband’s separate property rather than marital property, or alternatively by allowing her a greater amount than owned by the parties so as to reduce the husband to a negative net worth; (2) in allowing maintenance without making statutory findings and in any event by making an allowance which was excessive; and (3) in allowing attorney’s fees to the wife because she had a superior ability to pay than did the husband.

I.

PROPERTY DIVISION

For the purpose of property division, the court treated the following items as being marital property: (a) a one-half interest in a 127 acre farm referred to in the evidence as “the Hood property;” (b) a 1976 Dodge automobile; and (c) household furniture. The husband contends that each of these items was in reality his separate property.

A. The Hood Property. The parties lived on and worked a 310 acre farm owned by the husband’s mother. During the period of this marriage, the husband and his mother bought an additional 127 acres (the Hood property) for $24,000. Title was taken in the names of the husband and his mother as tenants in common with a one-half interest to each. There was testimony that the purchase price came out of a $73,-000 loan from the Federal Land Bank on which the husband testified he was a co-ob-ligor. The note itself was not introduced in evidence.

The husband was generally in charge of the farming of all 437 acres, although he also had a full time job with Panhandle Eastern Pipeline Company. Despite his farm work and that also of the wife, all proceeds from the farming were turned over to the husband’s mother. The mother in turn paid all of the debt service on the $73,000 note. Proceeds of the $73,000 note were used to finance the farming operations, and it was secured by a deed of trust on the mother’s 310 acres. No lien exists on the 127 acre Hood property.

The husband contends that his one-half interest as a co-tenant in the Hood property belongs to him separately on the ground that it was received by him as a gift from his mother within the meaning of Section 452.330-2, RSMo Supp.1973. However, subsection 3 of Sec. 452.330 provides that “[a]ll property acquired by either spouse subsequent to the marriage and pri- or to a decree of legal separation is presumed to be marital property * * * That presumption can be overcome by showing that the property was acquired by gift, but such a showing becomes a question of fact upon which the burden of proof rests upon the one claiming that the acquisition was by gift. Boyers v. Boyers, 565 S.W.2d 658 (Mo.App.1978).

The evidence in this case showed that the husband worked both farms without any cash payment from his mother, and the trial court could reasonably have found that work to constitute consideration for transfer to the husband of a one-half interest in the Hood property. Also, the wife testified that her husband came to her with a statement that “we were going to buy this ‘Hood Property’ ” and asked her to sign some papers in connection therewith. In any event, the trial court could reasonably find that the husband had failed to carry his burden of proof in order to show that he received the one-half interest by way of gift. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

B. The Dodge Automobile. The husband claims this item as separate property on the theory that it was purchased by use of money which he inherited from his father. The only evidence on this subject was that the automobile cost approximately $5,300, that the money for payment came from the parties’ savings account, and that about half .of the savings account came from an inheritance which the husband had received. Those facts bring the case within the rule of law that where marital and nonmarital property are commingled and then exchanged for new property, the newly acquired asset is marital property. Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App.1978); Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.1977).

C. The Household Furniture. The husband states in his brief that the evidence demonstrates that most of the parties’ furniture was acquired by the husband either by gift from his mother or in exchange for cash inherited by him from his father. That statement is not supported by any transcript reference and we find no such evidence in the . record. Rather, the evidence strongly indicates that the bulk, if not all, of the furniture was acquired from the proceeds of a $7,000 loan for which the parties signed a note along with the husband’s father as a cosigner. The husband and wife made all the payments on the note, including premiums for credit insurance on the father’s life, until the father’s death. At that point the remaining balance of the note was retired by proceeds from the credit life insurance.

The trial court could reasonably find from the above evidence that the husband failed in his burden of proving that the household furniture was his separate property. Murphy v. Carron, supra.

D. Valuation of the Assets. With respect to this subpoint, the husband argues that even if all of the above items be considered marital property, nevertheless the trial court made an improper division which had the result of forcing the husband into the position of having a negative net worth. The husband reaches this conclusion by saying that the wife was given $17,766, of which $9,525 represented a one-fourth interest in the Hood property; while the husband received assets of $14,815, plus a liability of $36,500 (one-half of the $73,000 note) for a negative net worth of $21,685. He further argues that all of this results from the fact that the Hood property has in fact no net value and that the trial court “cannot divide an equity which does not exist.”

The husband’s argument contains two major fallacies. First of all, he attempts to set off the entire $73,000 obligation against the Hood property. This is in the face of the fact that the evidence shows that the whole purchase price of the Hood property was only $24,000. Accordingly, the loan was more than three times the amount which was expended for the Hood property, and the balance of that loan necessarily went for other purposes. The net import of the sparse testimony on this subject indicates that the greater bulk of the proceeds of the $73,000 loan went to finance production operations on all of the acreage, particularly the 310 acres owned by the mother in her sole name. (It appears that the Hood property is used primarily for pasture.) It is obviously unfair to attribute the entire amount of this loan as an offset to the value of the Hood property, as the husband now attempts to do.

Secondly, while the husband may have been an obligor on the note (some doubt about this lingers because of the fact that the note was never introduced in evidence), it appears that the intention of the parties has always been that the whole amount of the note is to be paid for by the mother. It is amply clear that this note represents a production loan to finance the farming operation, and the mother’s separate 310 acres represents the biggest part of that operation. The much greater importance attached to the original 310 acres is evidenced by the fact that a deed of trust was given on that acreage, but no lien of any kind was created against the Hood property. Still further, the mother gets all the proceeds of the entire farming operation and has paid all of the debt servicing.

On the basis of the whole record, the trial court was justified in believing that there is a reasonable expectation that the mother will retire the entire loan, without the husband being called upon to pay any part of it. The decimation to treat the $73,000 loan as a reduction in the value of the marital property must therefore be affirmed. Murphy v. Carrón, supra.

II.

THE ALLOWANCE OF MAINTENANCE

The husband argues that in order to allow maintenance the court had to first find that the wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through employment. The husband’s argument continues that the court’s order does not contain such specific findings and is reversible on that ground alone. This argument finds direct refutation in Butcher v. Butcher, 544 S.W.2d 249 (Mo.App.1977) and Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977).

The husband further contends that the record does not warrant such findings “because the court’s division of marital property and orders for support and attorney’s fees render him unable to comply with such orders and still meet his living expenses.” This argument repeats in slightly different form the contention already dealt with under Point I. D of this opinion.

A review of the evidence with respect to this point shows that the trial court did not misstate or misapply the law, its allowance of maintenance was supported by substantial evidence and is not contrary to the weight of the evidence. Murphy v. Carron, supra. A detailed exposition of the facts in this connection would have no prec-edential value, and the husband’s second point is therefore overruled under Rule 84.-16(b).

III.

ALLOWANCE OF ATTORNEY’S FEES

Under this heading the husband contends that as a result of the court’s apportionment of property and orders of support and maintenance, the wife possesses an ability to pay superior to that of the husband. This contention rests in large part upon the errors already discussed under Point I. D of this opinion. The question of the relative abilities to pay is a factual one covered by the standards of Murphy v. Carron, supra. A detailed consideration of the facts in this connection would have no prec-edential value, and the husband’s third point is therefore overruled under Rule 84.-16(b).

There being no error, the judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jerome BARNETT, Appellant.
    No. WD 29767.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Kevin R. Locke, Asst. Public Defender, Clifford A. Cohen, Public Defender, Kansas City, for appellant.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   SHANGLER, Presiding Judge.

The defendant was convicted by a jury of assault with intent to rape with malice aforethought and was sentenced to a term of ten years confinement in the penitentiary. The appeal does not question the sufficiency of the evidence to convict but only the lawfulness of the venire from which the jury was drawn.

At the commencement of trial the defendant moved quashal of the jury venire on the grounds that the procedures by law [Mo.Const. Art. I, § 22(b) (1945) and § 494.-031, RSMo 1969] which exempt from service as a jury any woman who requests excuse on account of gender deny a right to jury by a representative segment of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The motion was accompanied by a stipulation that the method used by the Jury Commissioner of Jackson County to devise the jury wheel for the year 1976 was employed for the year 1977.

The prosecution contends that such a proof without other evidence to establish that the venire from which the actual jury was drawn was not representative of the community does not invalidate the conviction on the precedent of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). We have ruled that where a defendant has raised and preserved the contention of gender discrimination in the petit jury selection process, Duren requires reversal of a year 1977 conviction by a Jackson County jury, without further proof of an underrepresented venire. State v. Coleman, Mo.App., 582 S.W.2d 335 (1979).

The judgment is reversed and remanded for new trial.

All concur.