text:
    FULL GOSPEL COMMUNITY CHURCH, a Not-For-Profit Missouri Corporation, Respondent, v. Billie NICHOLS, et al., Appellants, and Eddie Moore, et al., Respondents.
    No. WD 35084.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.
    Stephen W. Mendell, Dale, Flynn, Men-dell, Barnes & Adams, St. Joseph, for appellants.
    James W. Whan, Maryville, for respondents.
    Before DIXON, J.P., and SHANGLER and CLARK, JJ.
   DIXON, Judge.

This appeal is the culmination of a struggle between competing groups within a congregation to obtain control of a not-for-profit corporation and, consequently, the assets of that corporation. The central and controlling issue is the membership of the corporate board of directors.

The Full Gospel Community Church, Inc., was incorporated in 1979. The board of directors, as set forth in the articles of incorporation, were: Lawrence Webster, Elmer Noland, Ernest Kephart, Grant Roberts, Billie A. Nichols, and David Lane. There were no bylaws and the Articles contained no provisions for the election of successor directors. The Articles provided for no membership in the corporation and gave no voting power to the congregation.

Billie A. Nichols and his wife Geraldine owned a building located at 209 South Fourth, Tarkio, Missouri. Services were conducted in that building under the name “Full Gospel Community Church.” There was no lease and no rent was paid. In a very informal way, the affairs of the church were managed by the board of directors of the not-for-profit corporation. Geraldine Nichols, who acted as “Treasurer,” handled the financial affairs.

In early 1981, the incumbent pastor left the church to resume theological study and the Reverend Eddie Moore assumed the pastorate. The congregation grew rapidly and discussions of a building program took place. Dissension arose over the proposed building project.

The new pastor, Rev. Moore, attempted to replace board members who had not attended meetings or church or who had submitted oral resignations to the board. The board did not elect or appoint the “replacements.” Rev. Moore presented them to the congregation for approval. The putative board was comprised of Allen Hayes, Bill Shipley, David Shankel, Louise Graham, and Kim Clark.

A schism developed between the putative board, led by Rev. Moore, and the remaining members of the original board. The Moore group and many of the congregation voted (1) to adopt a set of bylaws, (2) to affirm Moore in his capacity as pastor, and (3) to move the church. Subsequently, the original board terminated Moore’s employment. The Moore group (and most of the congregation) moved to another church building at 812 Main Street, Tarkio, Missouri, and asserted it was the bona fide board of the Full Gospel Community Church.

Both groups continued the use of the name, “Full Gospel Community Church.” The group that included Rev. Moore caused the filing of a petition in the name of the corporation.

The plaintiff corporation’s second amended petition was in four counts. The defendants were Nichols, Clark, Kephart, Roberts, McCoy, and Geraldine Nichols. Nichols, Kephart, and Roberts were members of the original board. Count I was for return of specified property and damages. Count II was to enjoin defendants from use of the corporate name. Count III was against Geraldine Nichols only and was for conversion of $2,391.00. Count IV was in trespass to the church at 209 South Fourth Street, Tarkio.

Defendants Nichols, Clark, Kephart, Roberts, McCoy, and Geraldine Nichols filed a petition as third-party plaintiffs against third-party defendants Moore, Ship-ley, Hayes, Graham, and Shankel, who were active in the group at the new location. Count I sought an injunction against third-party defendants to enjoin use of the corporate name and alleged that third-party plaintiffs were lawful directors of plaintiff corporation. Count II claimed damages to the door of the church at 209 South Fourth Street. Count III sought to enjoin third-party defendants from acting on behalf of plaintiff corporation. Count IV was for abuse of process. Count V was a separate allegation of abuse of process.

The trial court found against plaintiffs on Count I and declared that the enumerated property belonged to the named defendants. Count II of plaintiffs’ petition was sustained and defendants were enjoined from the use of the corporate name. The court directed a verdict for defendant Geraldine Nichols on Count III. The issues as to Count IV were found against plaintiffs. The plaintiffs, respondents here, have not appealed the portions of this judgment adverse to them.

These findings, by implication, found against the third-party plaintiffs and in favor of third-party defendants on Counts I and III of the third-party plaintiffs’ petition. The court found specifically against third-party plaintiffs on Count II. Count IV and V have passed from the case and are not at issue. The only appeal by the defendants, as explicated in the brief, is from the injunction and the ancillary orders relating to the property the trial court found belonged to the corporation, the savings account and the corporate books and records.

The single issue on appeal is which of the competing groups is the Board of Directors and is entitled to the property and powers of the corporation. The facts that have legal significance on this issue are not in dispute.

The Certificate of Incorporation lists the original board of directors as Messrs. Webster, Noland, Kephart, Roberts, Nichols, and Lane. The Articles of Incorporation provided for no membership rights, voting or otherwise. The original board never adopted any bylaws. There never was any action by that board, to accept any resignation or elect or appoint new members, which could serve as a basis for a finding that the composition of the board was lawfully altered.

When the dispute about the church building plans was beginning to brew, Moore designated — apparently with congregational approval — several members of the Board. The congregation adopted bylaws prepared by Moore. Neither in the bylaws nor in the Articles was there any provision for membership control. The record of these various votes and appointments gleaned from the testimony in the record is, at best, confused and chaotic.

The record simply does not support a finding that there was ever any lawful change in the board of directors.

Under Missouri law, a not-for-profit corporation must be managed by a board of directors. Section 355.130 RSMo 1978. The original Articles listed the six board members. The defendants’ argument that the board is comprised of the original board and Meryle McCoy is mistaken. Although the board could have elected successors to members who resigned, Section 355.140, it could not expand the board, absent a bylaw or an amendment to the Articles granting that power. Sections 355.045.3 and 355.-135. There was no such amendment or bylaw. Nothing appears to show a lawful appointment of McCoy, or in fact that a lawful vacancy existed.

Plaintiffs contend the Moore group is the bona fide board. They assert the oral resignations and non-attendance by some of the original board at church or meetings were actual resignations, thus allowing the take-over by the Moore group. Their argument is fatally flawed. Although board members and congregation alike believed these actions effectuated resignations, they did not. Custom and belief are not necessarily the law. Directors hold over until the first annual election of directors or until their successors are elected and qualified. Sections 355.135.2 and 355.135.3. There was never an annual election of directors and the people Rev. Moore attempted to add to the board were not validly elected or appointed under any authorized procedures. Because no successors were validly elected to the original board, the statute mandates the original board continue to hold office, as the bona fide board, despite the purported resignations. The putative board, led by Rev. Moore, was never duly elected and thus, its votes were nullities.

Respondents’ contention that the congregation’s November votes (to affirm Rev. Moore, to adopt the bylaws, and to move the church) were effective to vest the corporate powers in that group is likewise without merit. For validity, respondents rely on the amendment to the Articles, which states, “[tjhere are some members, having voting rights with respect to amendments ...” and “no part of the net earnings of the corporation shall inure to the benefit of, or be distributable to, its members .... ” The amendment was adopted by members ostensibly entitled to vote. However, the original Articles never gave members the right to vote and no amendment or bylaw ever granted them that right.

“Where there are no members having voting rights an amendment shall be adopted at a meeting of the board of directors upon receiving the vote of a majority of the directors in office.”

Section 355.070.1(2). Thus, the congregation’s vote to adopt the amendment was a nullity. Because the members were never given the power to vote and the corporation’s management is entrusted to the board of directors, Section 355.130, the votes to affirm Rev. Moore, adopt the bylaws, and move the church were likewise nullities, insofar as they purported to change the management of the corporation.

Throughout the trial of this case and the briefs on appeal, the distinction between the “church” or congregation and the corporate entity, the Full Gospel Community Church, Inc., has been blurred. Neither this court nor any other can determine as a matter of law that any group of persons who wish to do so may not form a church located at 812 Main Street in Tarkio, Missouri, and choose as their pastor the Reverend Eddie Moore. The schism of this congregation is no concern to this court or any other under the facts of this case. This opinion does not in any way direct or require the court below to make any order concerning either of the competing congregations.

Under the pleadings in this case, as they were narrowed during the trial, there is but a single issue, the lawful board of directors of the not-for-profit corporation chartered by the state as the Full Gospel Community Church, Inc. As to that issue, the judgment of the trial court is in error as a matter of law. Murphy v. Carron, 586 S.W.2d 30 (Mo. banc 1976).

The trial court’s judgment is reversed and remanded with directions that Messrs. Webster, Noland, Kephart, Roberts, Nichols, and Lane be declared the corporation’s board of directors. The passbook savings account No. 11-995-4 at Farmers and Valley Bank, Tarkio, Missouri is the property, as all concede, of the Full Gospel Community Church, Inc., as are the corporate books and records, and the decree should be amended to so declare.

The decree should be further amended to enjoin the third-party defendants from exercising or attempting to exercise any of the corporate powers of the not-for-profit corporation or using the name “The Full Gospel Community Church,” the corporate name of the not-for-profit corporation.

All concur.

      . All statutory references are to RSMo 1978.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    HILL, LEHNEN & DRISKILL, Respondent, v. DOMMICK’S KOUNTRY KITCHENS, INC., Appellant.
    No. WD 35858.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.
    Roy W. Brown, Brown & Brown, Kansas City, for appellant.
    George Lehnen, III, Hill & Lehnen, Richmond, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   ORDER

PER CURIAM:

Dommick’s appeals from a judgment of $903.10, plus interest, for legal services performed by Hill, Lehnen and Driskill.

Judgment affirmed. Rule 84.16(b).


text:
    CITY OF PAGEDALE, Missouri, et al., Plaintiff-Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, et al., Defendant-Respondent.
    No. 47375.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 20, 1984.

      John C. Livingston, Ellisville, for plaintiff-appellant.
    Mary Stewart Tansey, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   ORDER

PER CURIAM:

City of Pagedale appeals from a decision of the St. Louis County Circuit Court, affirming an order of the Missouri Commission on Human Rights. The Commission found that appellant retaliated against four former Pagedale police officers by discharging them for having filed complaints previously with the Commission against appellant. No error of law appearing and this court having determined that an opinion would have no precedential value, the judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: GAERTNER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry A. NORTON, Defendant-Appellant.
    No. 47605.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1984.

      John P. Zimmerman, Asst. Public Defender, St. Charles, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Defendant was charged by information with the offenses of burglary first degree, forcible sodomy, armed criminal action, forcible rape and stealing. A jury found him guilty of stealing but not guilty of all other charges.

Defendant does not question the sufficiency of the evidence so a brief statement of facts will suffice; The victim testified she was awakened when a man, later identified as defendant, got into her bed and raped and sodomized her at knifepoint. The police were called by the victim’s daughter. When they arrived at the scene the victim escaped through a window. Subsequently, defendant escaped in the victim’s automobile, which constituted the foundation for the stealing charge.

Defendant asserts two points on appeal, both of which relate to the voir dire examination of prospective jurors. The first concerns a question, repeated four times in slightly different form, by the prosecutor, which can be described by a single example:

Does everyone agree that a defendant may plead not guilty to avoid the responsibility for a crime they have committed? Does everyone realize that people charged with very serious offenses, such as rape and sodomy and armed criminal action, usually plead not guilty?

Each time the question was asked defendant’s attorney objected and, after a bench conference, the court sustained the objection but denied a request for a mistrial.

While counsel should be allowed reasonable latitude in the examination of prospective'jurors, there are limits to the scope of permissible examination. State v. Beatty, 617 S.W.2d 87, 92 (Mo.App.1981). The nature, extent and propriety of questions addressed to veniremen are subjects within the discretionary control of the trial court and the exercise of such discretion will be disturbed on appeal only when a manifest abuse thereof is disclosed. State v. Lumsden, 589 S.W.2d 226, 229 (Mo. banc 1979). In addition, the party asserting such a manifest abuse of discretion has the burden of demonstrating a real probability that he was thereby prejudiced. State v. Mudgett, 531 S.W.2d 275, 280 (Mo. banc 1975); State v. Hines, 567 S.W.2d 740, 742-43 (Mo.App.1978).

As exemplified by the question set forth above, the entire series of questions relating to a not guilty plea constituí-ing a means of escaping responsibility by guilty persons was improper. The questions constituted disparagement of the constitutionally protected presumption of innocence afforded to every accused person. “[A]ll defendants, regardless of guilt or innocence, are guaranteed a jury trial and are entitled to the benefit of the presumption of innocence.” State v. Reese, 481 S.W.2d 497, 499 (Mo. banc 1972). Had defendant requested that the jury be admonished to disregard the questions or that the prosecutor be reprimanded for his persistent impropriety, such remedial relief would have been appropriate. However, after his objection was sustained, defendant’s sole request was for the drastic remedy of a mistrial. “Whether remarks of counsel are so prejudicial as to necessitate a mistrial rests largely within the trial court’s discretion, State v. Hunter, 499 S.W.2d 787, 788[3] (Mo.1973), and the appellate court will not interfere unless there has been an abuse of discretion which prejudices defendant.” State v. Healey, 562 S.W.2d 118,130 (Mo.App.1978). It is apparent that defendant suffered no prejudice by reason of the improper question on voir dire. He was acquitted of four of the five offenses charged and the evidence of his guilt of stealing the automobile was overwhelming. His defense, that the victim gave him the car -feeys so that he could escape from the police and then climbed out of a window completely nude, is incredible. Defendant’s first point is denied.

Sometime before the trial began, the victim contacted defendant’s mother and offered to drop the charges in return for $5,000.00. Anticipating evidence of this attempted extortion, the prosecutor asked the following question of prospective jurors:

And is there anyone on the jury panel— does everyone on the jury panel agree, that a victim of a rape would prefer not to have to testify to the details of such a crime in a public trial?

Defendant’s objection and request for a mistrial were overruled and the question was repeated five times. The question was improper and the court erred in overruling the objection. It was a subtle attempt to commit the jurors to overlook damaging evidence which the prosecutor knew would be forthcoming. It is well established that any attempt to commit prospective jurors to a particular course of future conduct is an abuse of the voir dire process. State v. Reed, 629 S.W.2d 424, 426 (Mo.App.1981). Moreover, when the question is phrased in such a manner that jurors feel obligated to react in a particular manner, prejudice may result. State v. Abbott, 654 S.W.2d 260, 274 (Mo.App.1983). Thus, even though the subject matter may be appropriate for voir dire interrogation, the manner of asking, the phrasing of the question, may render it improper. State v. Garrett, 627 S.W.2d 635, 642 (Mo. banc 1982). Any question requiring prospective jurors to “agree” with some proposition stands in danger of violating the proscription against seeking commitments during voir dire examination.

Nevertheless the situation does not warrant reversal. Only where there exists a “real probability of injury” to the complaining party will an appellate court disturb the trial court's discretionary control of voir dire examination. State v. Betts, 646 S.W.2d 94, 98 (Mo. banc 1983). Here, the improper questions related only to the sexual offenses and the jury found the defendant not guilty of those crimes. Obviously, he suffered no injury by reason of the impropriety.

The judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


author: SIMON, Presiding Judge.

text:
    Melinda Lee McCLEMENT, Petitioner, v. Michael Dale McCLEMENT, Respondent.
    No. 47910.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 20, 1984.
    Mary Ann Weems, Clayton, for petitioner.
    Mark H. Kruger, Clayton, for respondent.
   SIMON, Presiding Judge.

Respondent, Michael McClement (Husband), appeals from a decree issued by the Circuit Court of St. Louis County, dissolving the marriage between Husband and petitioner, Melinda McClement (Wife). The court awarded Wife custody of the minor children, the family residence located at 3713 Druso, St. Louis County, Missouri, child support and attorney’s fees. Husband was awarded various furniture, tools, bank accounts, an automobile, and a $2000 deed of trust secured by the family residence. We affirm.

The relevant facts are as follows: Two children were born of the marriage. The parties had moved from St. Louis to Delaware. The Wife and children moved back to St. Louis in 1981 while Husband remained in Delaware. Shortly after returning to St. Louis, Wife met another man, who moved into her home in May, 1982. On May 3, 1982, Husband returned to St. Louis and went to the family residence. Husband testified that he did not know Wife was involved with another man and became very depressed when he discovered another man’s clothes in the home. Husband admits destroying several items in the house and taking various items including a microwave oven, tools, and clothing. At trial there was conflicting testimony concerning the amount of destruction and the items the Husband took.

The parties also disagreed on the value of certain assets and the amount of money contained in certain bank accounts. The parties’ home in St. Louis County was subject to a $17,000 deed of trust. Wife claims that the residence in St. Louis County is worth $45,000. Husband claims that it was appraised at $62,500. During the marriage, Husband ran a tattoo business. Wife claimed Husband earned between five and six thousand dollars per year from the business. Husband claimed that he never made money, and only has tattooing equipment worth $30.00. The parties also disagree on the amount of money each took from the parties’ joint bank account with Bank of Delaware, prior to leaving for St. Louis. Husband claims that of $17,000 removed from the account in October, 1981, Wife used $3,500.. Wife claims she took nothing from the account after Husband withdrew the $17,000.

Husband claims that he did not know the marriage was in trouble until May 3, 1982 when he returned to St. Louis. Wife claims that the parties had discussed dissolving their marriage in October of 1981, and that Husband had threatened her with physical violence if she filed for divorce.

The matter was heard on September 2, 1983. The parties stipulated to the financial statement filed by both parties. The trial court dissolved the marriage and made the following pertinent findings and division of property: (1) that there was no separate property to set off to either party; (2) awarded Wife: (a) custody of the children; (b) child support payments of $27.50 per week; (c) the residence located in St. Louis County, Missouri and also the contents of the residence except the items that Husband took on May 3, 1982; (d) her interest in a personal injury claim resulting from an automobile accident which occurred during the marriage; (3) that both parties were able to support themselves and did not award maintenance to either party; (4) awarded Husband: (a) mechanical tools in his possession; (b) furniture located in his motel room in Delaware; (c) the automobile; (d) firearms in his possession; (e) the tattoo equipment; (f) the property he removed from the house on May 3, 1982; (g) the balance of the account the parties had with the Bank of Delaware; (h) all interest in the assets of the tattoo business; (i) the balance of an account the parties had with Mark Twain South County Bank which Husband received on May 4, 1982; (j) $2000 to be secured by a deed of trust on the residence in St. Louis County, Missouri, at 9% interest. Further, the court ordered Husband to pay attorney’s fees and granted him visitation and temporary custody rights of the minor children.

On appeal, Husband contends that the trial court erred in: (1) failing to make a specific finding regarding marital property; (2) failing to value the assets that were divided by the court; and (3) dividing the marital property in an unjust manner.

On review, we determine whether the judgment is supported by substantial evidence and is not against the weight of the evidence, and whether the court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Initially, Husband contends that the trial court erred in failing to make a specific finding regarding marital property. Section 452.330 RSMo provides a two-step process in dividing property in a dissolution of marriage proceeding: (1) the court must set apart to each spouse his or her separate property, and (2) the court must divide the remaining marital property. Relying on Bishop v. Bishop, 658 S.W.2d 512 (Mo.App.1983), Husband argues that the trial court must make specific findings as to whether each asset is marital property or non-marital property. Husband argues that one of the assets divided by the trial court was Wife’s interest in her personal injury claim, which the court stated she retained as her sole property. Husband contends that this statement implied that the court was classifying this asset as Wife’s separate property and non-marital.

In Bishop at 514[1], our court held: “The trial court must make specific findings as to whether each asset or class of assets is marital property subject to division or non-marital property belonging to spouse individually. Such an identification of property is a necessary antecedent of a subsequent just division of marital property.” In Bishop, the trial court found one piece of property to be Wife’s separate property. The decree did not designate any other property as separate or marital. This silence could have implied that the remaining property was marital. However, the Husband had received one piece of undesignat-ed property by descent and, therefore, it was his separate property by operation of law. Therefore, the trial court erred by failing to identify this piece of property as separate property. Id. at 515[3].

However, the present case is distinguishable from Bishop. First, the trial court specifically found that there was no separate property to set off to either party. If there is no separate property, then all of the property is marital. In Bishop, the trial court made a specific designation as to one asset, but failed to designate the remainder of the assets, thus, making it unclear whether the remaining property was apportioned as part of the marital property or separate property. Here, the trial court’s determination that there was no separate property creates no question as to the designation of the property. The trial court determined that all of the property was marital property. Second, in Bishop, the decree, by its silence, impliedly designated the remainder of the property as marital property. It was erroneous because the property that Husband had acquired by descent was his separate property as a matter of law. There is no analogous situation in the present case. In Nixon v. Nixon, 525 S.W.2d 835, 839[6] (Mo.App.1975), our court held that a spouse’s recovery for personal injuries is marital property if the personal injury was sustained during the marriage. Here, the property damage and personal injuries were sustained during the marriage, thus, the personal injury claim was clearly marital property. The trial court did not err.

Husband next contends that the trial court erred in failing to set the value for each of the assets.

Wife testified the replacement cost of the items taken by Husband was $5,000. Husband denies the value of the items was this high. Wife testified the home could be sold for no more than $45,000, and on her financial statement claimed the present value of the house is $60,000. Husband testified the house has been appraised at $62,-500. The Husband also claims that there is no testimony in the record regarding the value of Wife’s personal injury claim. Husband states that because these assets comprise a large portion of the marital assets, the court should have valued these assets when making the division of property-

Section 452.330.1, RSMo (Supp.1981) (all further references shall be to RSMo (Supp. 1981)), provides:

1. In a proceeding for dissolution of marriage ... the court shall set apart to each spouse his property and 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 Missouri Supreme Court has held that § 452.330.1 does not require specific findings of fact as to the value of each item designated as marital property in a dissolution decree. Dardick v. Dardick, 670 S.W.2d 865, 868[3] (Mo.App.1984). In Dar dick, the Court stated that a trial court’s decision concerning division of property will not be disturbed so long as the trial court had before it proper evidence of value and the parties had not requested specific findings under Rule 73.01(a)(2). Id. at 868[2],

Here, Husband did not request specific findings of fact or conclusions of law. Thus, the failure of the trial court to assign values to each item, does not require reversal, unless there was insufficient evidence before the court for it to make a just division. Dardick at 868[2], There was sufficient evidence in the record upon which the trial court could have placed a value on both the house and items taken by Husband.

Regarding Wife’s personal injury claim, Wife testified that she was involved in an automobile accident and had a suit pending to recover property and personal injury damages. She testified that her car sustained damages of $2,000, but presented no evidence concerning the value of the personal injury part of the claim. She further testified that she told her attorney she was interested in getting money to repair the car. At one point she indicated she had injured her head and neck, however, at another point, she claimed she suffered no injury in the accident. There was no specific evidence of the value of the personal injury claim, but the trial court could reasonably have found that the value of the personal injury claim was minimal and incidental to the automobile damage claim. Section 452.330.1 requires the court .to divide the marital property in proportions it deems just. Failure to specifically value the personal injury claim does not affect the justice of the trial court’s property division. No justiciable purpose would be served by remanding this cause for further proceedings to arrive at a specific value for this claim. Since the evidence indicates its value to be minimal and incidental, the trial court’s distribution of the claim to the Wife does not upset the fairness and equity of the property division.

In his final point, Husband claims there should have been a more equal division of the assets and the court should have given more weight to Wife’s alleged marital misconduct.

Section 452.330.1 requires a fair and equitable division of marital property, but does not require an equal division of property. Dardick at 869[4, 5]. The trial court has considerable discretion in dividing marital property and its decision will not be overturned unless the division is so unduly weighted in favor of one party as to amount to an abuse of discretion. Id.

Both parties presented evidence indicating marital misconduct. Marital conduct is only one of four factors which the trial court must weigh in dividing marital property. Section 452.330.1. It is for the trial court to determine whether the parties engaged in misconduct and, if there was misconduct, the weight that it should be given in dividing marital assets. The trial court did not abuse its discretion.

Having carefully reviewed the record and considered each of the points raised by Husband, we find the trial court’s findings are supported by substantial evidence and do not erroneously declare or apply the law.

Judgment affirmed.

STEWART and STEPHAN, JJ., concur.


author: CRANDALL, Judge.

text:
    Mary and Leroy STEPHEN, Appellants, v. LINDELL HOSPITAL, Respondent.
    No. 48119.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 20, 1984.

      James William Herron, St. Louis, for appellants.
    Kemper R. Coffelt, Clayton, for respondent.
   CRANDALL, Judge.

Plaintiffs Mary and Leroy Stephen appeal from a judgment, entered on a jury verdict, in favor of defendant Lindell Hospital on Mary Stephen’s claim of medical malpractice and Leroy Stephen’s claim for loss of consortium. On appeal, plaintiffs claim trial court error (1) in excluding testimony by Mary Stephen about the conversation between two nurses which supported Mary Stephen’s claim that she had been served breakfast on the morning of her surgery; (2) in excluding testimony of Mary Stephen that when she regained consciousness after surgery she told her doctor she had eaten breakfast on the morning of the surgery; and (3) in giving double converse instructions to the jury; and further, that the converse instruction to plaintiff Leroy Stephen’s claim was not in substantially the same language as the verdict director. Defendant raises the issue of submissibility in its brief. We affirm.

Mary Stephen entered Lindell Hospital in March 1978 for surgery on her right foot. The hospital had a rule that patients scheduled to undergo surgery with a general anesthetic were not to be fed anything for at least six hours prior to the surgery. Mary Stephen testified she was served breakfast on the morning of surgery between 5:00 and 6:00 a.m. At about 7:30 a.m. she was taken off to surgery.

Mary Stephen was given a general anesthetic prior to surgery. After the operation she was taken to the recovery room where she regurgitated and aspirated the material into her lungs. Dr. Robert Bolton testified that he found particles of partially digested food that had been inhaled into the lungs. Mary Stephen suffered lung-related problems after the surgery.

A medical expert testified that two or three patients in ten will vomit due to a general anesthetic regardless of whether the patient had eaten shortly before surgery. The expert stated that nine patients in ten vomit if they have eaten shortly before surgery. A crucial issue then at trial was whether Mary Stephen had been served breakfast the morning of her surgery.

Plaintiffs first claim the trial court should have admitted testimony offered at trial from Mary Stephen that after she had eaten breakfast on the morning of the surgery, she overheard a conversation between two uniformed nurses standing in the hallway outside her door. Mary Stephen would have testified that one nurse said, “Didn’t she have breakfast?,” and that the other replied, “We’ll take a chance.”

Plaintiffs offered this testimony at trial under two theories, res gestae and admission by party opponent. On appeal, plaintiffs rely primarily on the res gestae theory and abandon the admission theory.

The use of the term “res gestae” has been criticized as being unsound and harmful. Meyers v. Smith, 300 S.W.2d 474, 477 (Mo.1957); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 120 (Mo.App.1975). However, there are at least two different kinds of statements which are received in evidence under the designation res gestae. Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d 197, 199-200 (Mo.1969). One type is known as spontaneous utterance, which is not the theory applicable here. The other type is known as a verbal act, which is actually a part of the transaction under consideration and is considered not to be hearsay.

Further defining this rule is State v. McClure, 504 S.W.2d 664, 671 (Mo.App.1974): “It has become a well settled principle of the law of evidence that statements or declarations made contemporaneously with or immediately preparatory to a particular litigated act which tend to explain, illustrate or show the object or motive for the act, are properly admissible into evidence as a part of the res gestae.” In that case, the verbal acts constituted a part of a crime of aiding, abetting and assisting another in the sale of a controlled substance.

The verbal act rule applies “only when such statements are not offered as evidence of the fact stated, but are offered ‘irrespective of the truth of any assertion they may contain.’ ” State v. Schuh, 497 S.W.2d 136, 138 (Mo.1973). The verbal act must be used to explain conduct that is equivocal. Menorah Medical Center v. Davis, 463 S.W.2d 618, 621 (Mo.App.1971).

The statements Mary Stephen says were made by the two unidentified nurses do not meet the verbal act test. The statements of the nurses were offered first to prove that Mary Stephen had breakfast and that she was still being sent to surgery. Secondly, the statements were offered to show breakfast was being served on the floor prior to the time Mary Stephen was taken to surgery. In both cases the statements would be used for the truth of the matter asserted; namely, that breakfast was served or that the nurses would risk sending her to surgery. The statements do not meet the verbal act test for that reason. “Calling an assertion ‘a part of the transaction’ cannot make it any the less hearsay testimony, when it is used assertively and testimonially, no matter how ‘inseparable from’ or ‘intimately interwoven with’ the affair it may be.” VI Wigmore, Evidence § 1757 (Chadbourn rev. 1976). Further there was no equivocal conduct to be explained by the statements.

Plaintiffs also seem to allege, by citing to Ferrell v. Topp, 386 S.W.2d 33, 37 (Mo.1964), that the statements should be admitted because they show knowledge of a dangerous condition, and thus do not constitute hearsay because they are not being used to prove the truth of the matter asserted. In Ferrell, a pilot was told there was rough country along his flight path and that he would have to be careful. The pilot responded that if the mountains were too high he “would just knock a hole in one of them.” The pilot’s statement was admitted to show he knowingly chose a dangerous route, and not for the truth of the matter asserted. But that claim was based on willful and wanton misconduct, so knowledge was material.

Likewise, in Rinker v. Ford Motor Co., 567 S.W.2d 655 (Mo.App.1978), the court’s holding that prior reports of defects in a certain make of automobile should have been admitted at trial to show knowledge of a hazardous condition, related to a claim based on negligent failure to warn. That claim required a showing under then MAI No. 31.01 (now MAI No. 25.06) that the plaintiff did not know and by using ordinary care could not have known of the defect.

The present case is not the same. Here knowledge was not an essential element. The jury was instructed to decide only if Mary Stephen was served breakfast and if the defendant was negligent. It is immaterial whether any nurses knew or should have known she had breakfast prior to being taken to surgery. Plaintiffs would have been able to recover without any evidence that any nurses were aware she had eaten. The court was within its broad discretion in excluding this hearsay testimony. Plaintiffs’ first point is denied.

Plaintiffs next contend that the trial court erroneously excluded the offered testimony of Mary Stephen that, immediately upon regaining consciousness after surgery, she stated, “I feel sick, must have been the breakfast.” Plaintiffs argue this hearsay testimony should have been admitted as a spontaneous utterance, an exception to the hearsay rule and included in the vague term “res gestae.” Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d at 199-200.

The test for admitting a spontaneous utterance was stated by this court in State v. Rogers, 585 S.W.2d 498, 504-505 (Mo.App.1979):

It is generally held that spontaneous exclamations and statements uttered contemporaneously with or shortly after an unusual occurrence, usually the crime involved, by a person who is still under the influence of its effects are admissible into evidence. The rationale of this exception to the hearsay rule is that where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the de-clarant. Under this exception the statement need not be strictly contemporaneous with the act described. The test of the admissibility of a spontaneous statement is not when the statement was made, but whether under all the circumstances, the speaker may be considered as speaking under the stress of the nervous excitement produced by the event, or whether that excitement had died away. 22A C.J.S. Criminal Law § 662(3) (1961) at 671. The essential test of whether a hearsay statement is admissible as a spontaneous statement is neither the time nor place of its utterance but whether the utterance was made under circumstances which indicate that it is trustworthy. The burden is on one offering the declaration to prove the facts which warrant its admission.

Further, the utterance should not be merely a reflective narration of past events nor constitute an expression of an opinion. Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d at 121.

The trial court could have found Mary Stephen’s statement inadmissible for several reasons. First, her daughter testified she had told her mother on the morning of the surgery that she should not have eaten breakfast. This was after her mother had stated she had eaten breakfast. The daughter made this comment at least several minutes prior to Mary Stephen being taken away for surgery. This indicates Mary Stephen had time to ponder the possible effects of having eaten prior to surgery. Thus, it could be found that the statement was not produced by the event itself, but rather by reflection on past events.

In addition, the post-surgery statement that it “must have been the breakfast” would not qualify under the spontaneous utterance rule because it was an expression of opinion or conclusion. It constituted “a preexisting reasoned reflection and conscious analysis on the part of the speaker which is the antithesis of a true spontaneous exclamation.” Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d at 123. We hold that the court did not abuse its broad discretion in excluding this testimony. Plaintiffs’ second point is denied.

Plaintiffs’ third point deals with instructions. They claim that Instruction No. 13, a converse instruction, does not properly converse plaintiff Leroy Stephen’s verdict director (Instruction No. 12) in substantially the same language. The instructions here read:

Instruction No. 12
Your verdict must be for plaintiff Leroy Stephen if you believe:
First, defendant served breakfast to plaintiff Leroy Stephen’s wife within six hours of surgery to be performed under a general anesthetic, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence, plaintiff Leroy Stephen’s wife was injured and plaintiff Leroy Stephen thereby sustained damage.
Instruction No. 13
Your verdict must be for defendant unless you believe defendant was negligent and as a direct result of such negligence plaintiff Mary Stephen sustained damage. (Emphasis added.)

We need not address the issue of the language of Instruction No. 13. The jury found in favor of defendant on plaintiff Mary Stephen’s claim. Plaintiff Leroy Stephen is therefore barred as a matter of law from recovery because of the derivative nature of his action. Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975). Any error in his converse instruction is therefore moot.

Plaintiffs also claim that Instructions 13 arid 9 both converse Instruction No. 8 (wife’s verdict director), and that it is error to give two converse instructions conversing the same elements of the plaintiffs’ claim. The cases cited by plaintiffs are inapposite because they were decided prior to implementation of the “packaging” concept of instructing juries. MAI No. 2.00, Explanatory Comment.

The MAI explanation on packaging states:

It will be up to the trial judge to determine the basis for ‘packaging’ of a complex case so that the overall instructions will present the case to the jury in a manner which will best allow them to consider all of the issues in the case in an organized, understandable, and comprehensible manner. In most instances, the case should be packaged so that the claim for damages of each party asserting a claim for damages will be covered by a separate package. MAI No. 2.00 at 21.

The explanation adds: “Packaging is not intended to be a rigid set of rules.” MAI No. 2.00 at 24.

The MAI explanation gives as an example a case where a plaintiff’s wife brings a claim for loss of consortium, along with the husband’s claim in a personal injury case. The explanation states:

[Tjhis would be a separate claim and would be included in a second package. Since plaintiff [husband’s] contributory negligence would also bar his wife’s claim for consortium, similar contributory negligence instructions will be included in both packages. This is necessary so that each claim will contain all of the instructions, except the general instructions, which are necessary for the complete submission of that particular claim. MAI No. 2.00 at 21-22.

By analogy, because the husband’s claim in the present case is derivative and thus depends on the finding by the jury of his wife’s claim, the converse given for the wife’s verdict director could be used again in the husband’s package “so that each claim will contain all of the instructions ... which are necessary for the complete submission of that particular claim.” Defendant’s third and final point is denied.

In view of our holding, we need not discuss the issue of submissibility raised by defendant.

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.


author: KAROHL, Judge.

text:
    Marjorie ABELL, Plaintiff-Appellant, v. William ABELL, Defendant-Respondent.
    No. 48190.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1984.

      Charles P. Todt, Clayton, for plaintiff-appellant.
    Joseph Howlett, Clayton, for defendant-respondent.
   KAROHL, Judge.

Wife appeals dissolution decree contesting denial of maintenance, insufficient child support and attorney’s fees and the division of marital property.

There were two children born of the marriage. The eldest became twenty-one between the date of the original decree and the date the court amended the decree. The younger child became twenty-one on September 30, 1984. On that date child support terminated. We find no abuse of discretion in the amount of child support awarded and affirm the order.

We find no error in the denial of maintenance. The children are grown and emancipated. Appellant wife is a licensed real estate broker. Her evidence of earned income exceeds her stated expenses for herself, excluding the children. § 452.335.-1(2), RSMo. 1978. We affirm the denial of maintenance. Royal v. Royal, 617 S.W.2d 615, 619 (Mo.App.1981).

Likewise we find no abuse of discretion in the award of attorney’s fees of $3,500.00 where the evidence established an earned fee of $7,120.00. The court’s broad discretion in dissolution cases applies to attorney’s fees. Boone v. Boone, 637 S.W.2d 249, 250 (Mo.App.1982). The extent of husband’s earnings as a Chartered Life Underwriter in the insurance industry was contested and may or may not have exceeded the wife’s earnings. Here the wife’s earnings will permit payment even though the husband’s earnings may exceed that of the wife. Whitenton v, Whitenton, 659 S.W.2d 542, 549 (Mo.App.1983). We find no abuse of discretion.

In her final point wife contends that the court in distributing the marital property failed to fully consider the abundant evidence of misconduct on the husband’s part and the extraordinary contribution of the wife. Wife argues that the decree is deficient in not assigning values to the marital property and in not factoring the misconduct of husband and good conduct of wife into the property distribution.

We find no request for findings of fact on either the values of marital property or conduct in the record. The court on two occasions suggested that the parties submit their suggestions for his consideration but findings of fact were never requested. See Rule 73.01(a)(2). There is no error in failure to perform such tasks if not properly requested. Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo.banc 1984). In Dardick the issue there was the failure to assign values for the individual items of marital property. This reasoning also applies when considering matters of good conduct or misconduct as an additional factor in the distribution.

Section 452.330.1(4), RSMo. Supp.1983 directs that the conduct of the parties during the marriage is a relevant consideration on the issue of division of marital property. We have interpreted misconduct broadly.

While marital misconduct is not limited to financial misdeeds and may justify a disparate division of marital property, Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977), misconduct is not a basis for punishing one spouse, see In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977), or for awarding inadequate marital property to an offending spouse, see Givens v. Givens, 599 S.W.2d 204 (Mo.App.1980). Misconduct is a crucial factor, when under given facts and circumstances, the conduct of one spouse creates burdens for the other beyond those normally expected in the marital relationship, Burtscher v. Burtscher, 563 S.W.2d 526 (Mo.App.1978).

Royal v. Royal, 617 S.W.2d 615, 618 (Mo.App.1981). The evidence supports findings of husband’s extreme marital misconduct and that during the period of separation the wife supported the children and paid the family obligations from her own earnings while husband chose to spend his time and income on another woman.

Here no request was made for a finding of marital property division absent fault, or for a finding of marital misconduct on the part of husband or unusual contribution on the part of the wife, or how conduct of both types may have affected the order of distribution. The court ordered that the family home be sold and gave the wife 60% of the value. The home was the principal asset of marital property. We find the court complied with the mandate of § 452.-330.1, RSMo. Supp.1983 for a just division of the marital property. Absent a request for specific findings on value of the property and the parties’ conduct we cannot conclude that the trial court did not properly balance husband’s misconduct and wife’s good conduct when distributing the marital property. Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo.banc 1983); Fields v. Fields, 643 S.W.2d 611, 617-618 (Mo.App.1982).

We affirm.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Antoinette M. MORAN, Petitioner-Respondent, v. Dennis S. MORAN, Respondent-Appellant.
    No. 48338.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1984.

      Stephen O. Smith, St. Louis, for respondent-appellant.
    Edward C. Cody, St. Louis, for petitioner-respondent.
   PUDLOWSKI, Presiding Judge.

Husband appeals from an order modifying the provisions of a dissolution decree. We affirm.

In the initial decree, entered in 1972, wife was awarded custody of the four minor children, husband was ordered to pay $25 per week per child in child support and $50 per week in maintenance. In September 1983, wife filed a motion to modify alleging that since the decree of dissolution, the general cost of living had increased substantially, the children had grown older with a corresponding increase in their needs, and the financial circumstances of husband had improved, rendering the terms of the decree unreasonable. Husband filed a cross motion to modify also alleging a change in circumstances and requested that the award of maintenance be eliminated and child support reduced.

After a hearing, the trial court increased child support for one child to $75.00 per week and $175.00 per week for the other minor child. The maintenance payment of $50 per week was eliminated but the the court in its order, “[retained] jurisdiction over the question of maintenance.” The court also awarded wife $5,000 in attorney’s fees.

Only husband has appealed from the order. In his first point on appeal, husband contends that the trial court erred in increasing child support. At the time of the decree in 1972, wife was not employed. However, at the time of the modification proceeding, she was employed at an advertising agency earning $27,500.00 a year. Two of the four children were emancipated. However, Bridgett, age 14, and Dennis, age 19, were not. Bridgett needed substantial dental work at the time of the hearing. According to wife’s income and expense statement in 1983 it cost nearly $1,500.00 a month to support the two minor children without allocating any amount to the children’s support for the household expenses totaling $1,500.00 a month. Wife owned two cars; a 1977 Chevrolet Caprice valued at $1,000 and a 1981 Oldsmobile with an equity of $300. She owned a life insurance policy with no cash value and a checking account with $300. She had no other assets and had substantial bills.

In 1972, husband was earning approximately $18,000.00 a year. At the time of the modification hearing in 1984, he was a vice president of A.G. Edwards, Inc. His gross income for 1983 was $97,000 which included a $27,000 one-time finder’s fee. Husband owned a condominium with an equity of $20,000; a margin account with A.G. Edwards with a value of more than $24,000.00; a profit sharing plan with a value of over $75,000.00; an IRA with a value of $4,000.00. He also owned a 1982 Mazda sports car with an equity of $4,500.00.

It is axiomatic that the provisions regarding child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. Section 452.370 RSMo Supp. 1983. The burden is upon the party seeking modification to establish changed circumstances. Seelig v. Seelig, 540 S.W.2d 142, 145 (Mo.App.1976).

Husband contends that wife introduced no evidence of the expenses required to support the children in 1972 and thus there was no basis upon which the court could determine the 1972 decree had become unreasonable. We acknowledge there is scant evidence in the record of the children’s expenses in 1972 and such a record should have been made. However, the absence of such evidence is not grounds for reversal in this case. Husband admitted that it costs more to raise a child in 1984 than it did in 1972 when he was first ordered to pay $25.00 per week per child in support. The fact that the children had become adolescents with a corresponding increase in their needs, the ravages of inflation over the past twelve years as well as husband’s substantial increase in salary could well support a finding of changed circumstances. Morris v. Morris, 549 S.W.2d 363, 365 (Mo.App.1977); Donnelly v. Donnelly, 648 S.W.2d 898 (Mo.App.1983).

More importantly, husband, in his cross motion to modify alleged a substantial and material change in circumstances and his attorney at the close of the evidence requested the judge to increase child support. Thus by filing and pursuing his own motion to modify child support and requesting an increase in child support, husband has admitted changed circumstances so as to invoke the jurisdiction of the court to resurvey the entire matter with reference to and emphasis upon the welfare of the children. Williams v. Williams, 542 S.W.2d 563, 566 (Mo.App.1976). He is in no position now to allege a lack of changed circumstances.

The amount of support set by the trial court is subject to review only to determine whether there has been an abuse of discretion or an erroneous application of the law. Morris v. Morris, 549 S.W.2d 363, 365 (Mo.App.1977). Husband conceded that he can afford the payments. Even discounting some of wife’s expenses about which husband complains, it appears that the reasonable needs of the children exceed the approximate amount of $1,000 a month in support awarded. Husband points out that wife’s earning capacity has increased substantially from 1972 to 1984. Indeed it has, but she will still bear a portion of the children’s support. See Donnelly v. Donnelly, 648 S.W.2d 898 (Mo.App.1983). Under these circumstances, we find no abuse of discretion.

In husband’s second point on appeal, he alleges the trial court erred in reserving jurisdiction over maintenance in the order. We find no merit to this point.

The record establishes that after the divorce wife secured employment as a teacher’s aid. She thereafter worked as an administrative assistant for the Missouri Department of Commerce and Industrial Development and then as a program supervisor for the Missouri Department of Agriculture. In 1981 she went to work for the Advertising Club of Kansas City for $22,-500.00 per year. In July 1983 she was hired as Director of Public Relations and Special Events for an advertising agency at the salary of $27,500.00. Her job entailed the development of new business for the agency based on prior contacts developed while working at the Advertising Club of Kansas City. According to Exhibit 7, admitted into evidence, the President of the agency stated that her position was a new concept with which the agency was experimenting and which was to be evaluated at the end of one year. After approximately six months in the position she had not generated any new business. Based upon this evidence, the trial court terminated maintenance but reserved jurisdiction over the issue.

It has been suggested that if in a ruling on a motion to modify a court eliminates all maintenance and fails to retain jurisdiction over that subject the right to ask for future reinstatement of maintenance is foreclosed even if circumstances change. Bellamy v. Bellamy, 572 S.W.2d 220, 221 (Mo.App.1978). See 24 Am.Jur.2d Divorce § 699, pp. 687-88. However, our research has disclosed no Missouri case which has expressly so held.

Where there is evidence that the circumstances of the parties may change, the appellate courts have not hesitated to require that an order terminating maintenance based on a motion to modify also reserve jurisdiction over the question. Bellamy v. Bellamy, 572 S.W.2d 220 (Mo.App.1978) (husband had lost his job but was actively seeking employment), Carrell v. Carrell, 503 S.W.2d 48 (Mo.App.1973) (wife was 62 and in need of future medical care).

Here, wife’s current position was a new one for her employer. Her continued employment depended on her bringing new business to the firm, in which she had been singularly unsuccessful. Based upon this record the trial court could have concluded wife’s job security was tenuous. Accordingly the trial court committed no error in reserving jurisdiction over the issue of maintenance.

In husband’s last point, he alleges the court erred in awarding wife attorney’s fees. Wife incurred over $7,500 in attorney’s fees, of which the husband was ordered to pay $5,000.00. We find no abuse of discretion.

Affirmed.

GAERTNER and KAROHL, JJ., concur.

      . Husband’s motion to strike wife’s brief is denied.


author: KAROHL, Presiding Judge.

text:
    STATE of Missouri, ex rel. POWER PROCESS PIPING, INC. and Natkin & Company, d/b/a Fischbach-Natkin, A Joint Venture, Relators, v. The Honorable Donald E. DALTON, Judge of Division No. 2 Circuit Court of Missouri Eleventh Judicial Circuit, Respondent.
    Nos. 48833, 48834.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.

      David G. Dempsey, Clayton, David R. Frensley, Kansas City, for relators.
    James E. McDaniel, St. Louis, for respondent.
   KAROHL, Presiding Judge.

Preliminary writs of mandamus were granted in these cases in order to consider the question of whether relators have an unconditional right to intervene with non-lien breach of contract claims in a mechanics lien suit pending before respondent judge. We have consolidated the two writs for purposes of this opinion because they raise the same legal issue. Relators claim unconditional right to intervene on the authority of Rule 52.12(a) and § 429.290 and .300, RSMo.1978 and rely upon two en banc decisions of our Supreme Court, State ex rel. Clayton Greens Nursing Center, Inc. v. Marsh, 634 S.W.2d 462 (Mo. banc 1982) and State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853 (Mo. banc 1952).

Respondent judge denied relators’ separate motions to intervene in a pending equitable mechanics lien suit, Kolb Grading v. General Motors Development Corporation, et al., “since movants do not assert mechanics liens claims.” In the same order respondent provided, “[t]his order is not to be construed as limiting or restraining movants from asserting in any proper forum such causes of action as they may have.”

Relators were independent prime contractors on the General Motors Assembly Plant [G.M. Plant] built in Wentzville, Missouri. Relator Power Piping, Inc. and Nat-kin and Company, d/b/a Fischbach-Natkin [P.P.P./F.N.], in a joint venture contracted with General Motors to do underground mechanical work. Relator Natkin and Company d/b/a Fischbach-Natkin [F.N.] contracted with General Motors to perform above-ground mechanical work.

At least three underlying lawsuits are relevant. In each suit General Motors Development Corporation and General Motors Corporation are the owners of the General Motors plant and Barton-Malow Company is either the owner’s agent (plaintiffs’, view) or construction manager for General Motors (defendants’ view). The chronology and events in these suits relevant to this writ proceeding follow.

On October 12, 1982, P.P.N./F.N. filed a breach of contract suit in the circuit court of the City of St. Louis against General Motors et al. to recover sums alleged to be due and owing for underground mechanical work done at the G.M. plant. This suit is pending but subject to defendants’ joint motions to dismiss filed in June 1983. In this suit defendants maintain that a later filed mechanics lien suit preempts the breach of contract cause of action and cite § 429.300, RSMo.1978.

On November 4, 1982 a mechanics lien suit was filed in the circuit court of St. Charles County, Missouri, Kolb v. General Motors, et al., hereafter referred to as Kolb lien suit. This suit is pending before respondent judge as an equitable mechanics lien action. On November 12, 1982, before relators’ motion to intervene in the lien suit was filed, respondent judge entered an order which provided inter alia “.. and all other suits or claims and demands arising out of the General Motors Assembly Plant in Wentzville, Missouri are hereby consolidated into [this mechanics lien suit], now the sole cause.” The same order refused to consolidate the non-lien claim of one movant, Schwent Trucking. On June 8,1983 relators’ motions to intervene in the Kolb lien suit were denied. Subsequently relators filed the writ of mandamus petition now under consideration to permit their intervention.

Some time in May 1983 F.N. filed a breach of contract suit in the circuit court of St. Charles County against General Motors, et al. to recover sums alleged to be due and unpaid for above-ground mechanical work. On June 8, 1983 relator F.N.’s motion to intervene in the Kolb lien suit was denied.

The parties have not questioned re-lators’ resort to mandamus. Mandamus is a remedy designed to enforce, not to establish, a right or claim. State ex rel. Commissioners of the State Tax Commission v. Schneider, 609 S.W.2d 149, 151 (Mo. banc 1980). It will lie where there is “an existing, clear, unconditional, legal right in relator and a corresponding present, imperative, unconditional duty upon the part of the respondent.” Giacolone v. Saitz, 650 S.W.2d 665, 666 (Mo.App.1983); State ex rel. Sayad v. Zych, 642 S.W.2d 907, 911 (Mo. banc 1982). Mandamus has been approved to permit an order to add additional parties. State ex rel. Apco Oil Corporation v. Turpin, 490 S.W.2d 400, 402 (Mo.App.1973) and State ex rel. Mayweather v. Bondurant, 538 S.W.2d 953 (Mo.App.1976).

Supreme Court Rule 52.12(a) grants intervention of right when a statute confers an unconditional right to intervene. Section 429.290, RSMo.1978 states in part that “[a]fter any such equitable action is commenced, the same shall be exclusive of other remedies for the enforcement of mechanics liens.” Section 429.300, RSMo.1978 states “The equitable action above provided for shall be brought in the proper court of record regardless of the amount claimed by the plaintiff or plaintiffs in such action, and all other suits that may have been brought on any mechanic’s lien claim or demand shall be stayed and no further prosecuted, and the parties in any such other suit shall be made parties to such equitable action as in the foregoing sections provided ...” We conclude that relators had an unconditional right to intervene and make the writ absolute.

The position assumed by respondent judge in refusing relators’ intervention in the Kolb lien suit is that relators may maintain their contract actions filed before and after the Kolb lien suit in separate proceedings. The position of counsel for respondent judge is not the same. Counsel for respondent judge represented the defendants in the contract and lien proceedings. They have contended that on November 12, 1982 respondent judge made an order in the Kolb lien suit consolidating all other claims and ruled that non-lien suits filed before the lien suit, see State ex rel. Clayton Greens Nursing Center, Inc. v. Marsh, 634 S.W.2d 462, 465 (Mo. banc 1982), or after the lien suit, see State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853, 855 (Mo. banc 1952) and Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 281 (1935), are prohibited by § 429.300, RSMo.1978 and the filing of the Kolb lien suit. Counsel argues that the statute preempts pre-filed non-lien suits and precludes a later filed non-lien suit once a mechanics lien suit is filed by any claimant under the mechanics lien statute. If that position is correct relators would be denied any remedy for breach of contract in either a separate suit at law or under the mechanics lien statute because of failure to comply with the requirements of that statute.

Relators’ position is that they are entitled to maintain their non-lien claims as suits at law for breach of contract until such time as a lien suit is filed which relates to the same construction project. The Kolb lien suit is such a case. They contend that because of the requirements of § 429.-290, RSMo.1978 they must intervene in the Kolb lien suit.

There is no statutory distinction between the breach of contract suit filed in the City of St. Louis before the equitable mechanics lien suit in St. Charles and the breach of contract suit filed in St. Charles County after the equitable mechanics lien action. Our Supreme Court held in State ex rel. Clayton Greens Nursing Center, Inc. v. Marsh, 634 S.W.2d 462, 464 (Mo. banc 1982) that § 429.300 required a stay of proceedings in a contract suit filed before the equitable mechanics lien action. The same court held in State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853, 855 (Mo. banc 1952), that a breach of contract suit filed after an equitable mechanics lien could not be maintained where causes arose out of the same construction project. The court in Clayton Greens v. Marsh, interpreted “mechanics lien claim or demand” to include non-lien-actions at law for breach of contract and held the equitable mechanics liens suits, once filed, are the exclusive remedy of all disputes between parties involved in the same construction project from which the mechanics lien suit arises. 634 S.W.2d at 465.

Respondent circuit judge by his order construed relators’ petitions to intervene to be discretionary and interpreted §§ 429.290 and 429.300 to apply only to claimants who sought relief in the form of a mechanics lien. Respondent’s order indicates that it was his view that these sections neither preempt pre-filed suits nor preclude after filed suits based only on actions at law for breach of contract. Respondent judge’s counsel before this court argued that rela-tors no longer have claims subject to separate adjudication. However, respondent judge’s order, issued in an equitable proceeding was obviously not intended to prevent relators from having their day in some other court.

No case law authority has been cited to support the proposition that non-lien claims may not be tried together with lien claims in the same equitable mechanics lien action. It has been repeatedly held that a non-mechanics lien claimant may assert a personal action for breach of contract without resort to the protection afforded by the mechanics lien statute. The court held in R.J. Stephens Drywall and Painting Co. v. Taylor-Morley-Simon, Inc., 628 S.W.2d 374, 376 (Mo.App.1982), that a mechanics lien is simply a method of collecting a debt and that the invalidity of the lien does not preclude a judgment for the debt. We find that a party does not waive its right to make a claim for breach of contract by not complying with the requirements of the mechanics lien statute. See Woodling v. Westport Hotel Operating Co., 227 Mo.App. 1231, 63 S.W.2d 207 (1933); Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 281 (1935).

This court restated the law relating to an interpretation of § 429.300 in Meiners Company v. Clayton Greens Nursing Center, Inc., 645 S.W.2d 722, 724 (Mo.App.1982) and stated “.. once commenced, the equitable action is the exclusive vehicle for litigating liens and other claims related to a particular property.” (our emphasis). 645 S.W.2d at 724. This language supports relators’ present contention that they must be allowed to intervene because the Kolb lien suit is the only available proceeding in which they can litigate their contract non-lien claims. This is also the teaching of Clayton Greens Nursing Center, Inc. v. Marsh, supra, and Great Lakes Steel v. Sartorius, supra.

We do not accept the view that the legislature intended by enactment of the mechanics lien statute to abrogate common law contract actions on construction contracts where a claimant, not a party to the contract, brings a mechanics lien suit asserting a claim with regard to the same construction project. We do not believe that the Kolb lien claim and suit involving a contract between Kolb and the owners was intended by the legislature to become a shield for the property owner against other laborers, materialmen, or contractors on the construction project who elected not to avail themselves of the mechanics lien statute. The order of non-intervention entered by respondent judge expressly agrees with this view. Had the legislature intended such a radical result they would have expressly so provided.

The present Rule 52.12(a) was amended in 1972. That change broadened the language and the requirements for mandatory intervention. Movant must establish three basic elements: (1) the applicant must show “interest” in the subject of the action in which he seeks to intervene; (2) he must show that his ability to protect his interests will be impaired or impeded as a practical matter if not permitted to intervene; and, (3) he must show that his interest is not adequately represented by the existing parties. From what has already been said in this opinion relators not only have an “interest", but that interest will be impaired if not destroyed if not allowed to intervene and those interests are not represented in the Kolb lien suit. Further, “the major purpose of the rule, both in Missouri and in the federal jurisdictions [Rule 24 of the federal rules of civil procedure is substantially the same] is ‘to facilitate the determination of all related disputes in one proceeding, and thereby avoid a multiplicity of actions.’ ” State ex rel. St. Joseph, Missouri Association of Plumbing, Heating and Cooling Contractors, Inc. v. City of St. Joseph, 579 S.W.2d 804, 806 (Mo.App.1979), citing State ex rel. Hughes v. Smith, 485 S.W.2d 646, 651 (Mo.App.1972). In Bolin v. Anders, 559 S.W.2d 235 (Mo.App.1977) the court in discussing intervention in an equity suit said,

The statutes relating to intervention are broadly remedial and are intended to facilitate the determination of all related disputes in one proceeding and thereby avoid a multiplicity of actions. State ex rel. Hughes v. Smith, 485 S.W.2d 646 (Mo.App.1972). The defendant is not prejudiced, [by the permitted intervention as] he is protected from any further litigation by the contingent remainder-men, born or unborn, the trustee, the administrator, or the life tenants. The intervention ordered by the trial court thus benefited the defendant by removing any exposure he might have had to multiple litigation.

559 S.W.2d at 247.

In view of the mandate of § 429.290 and § 429.300 as interpreted in State ex rel. Clayton Greens Nursing Center Inc. v. Marsh, supra, and State ex rel. Great Lakes Steel Corp. v. Sartorius, supra, together with the holdings in Woodling v. West Port Hotel Operating Co., supra, and Richards Brick Co. v. Wright, supra, we conclude that relators had an absolute right to intervene. Relators fully satisfy the requirements of Rule 52.12(a). The Kolb lien suit is the only forum in which they are entitled to litigate their claims. Absent express statutory language abrogating the contractual claims of relators against the property owners, relators as separate prime contractors are entitled to intervene and litigate their claims in this case, the only available forum under the circumstances of this case.

Preliminary writ in mandamus is therefore made absolute and respondent judge is ordered to grant relators’ motions to intervene.

SNYDER and GAERTNER,. JJ., concur.

      . It may be that such a provision would be unconstitutional as an unauthorized governmental interference with the contractual rights of citizens. We do not decide that issue.

      . We do not decide that contract claims on a single project are barred absent intervention. Questions of separate contract suits where the claimant is not informed of the lien suit or where the lien suit has terminated before the contract suit is filed or where the property owner does not seek dismissal of the contract suit are not raised in this writ proceeding.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael J. SMITH, Defendant-Appellant.
    No. 13592.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 27, 1984.

      Wesley D. Coleman, Asst. Public Defender, Caruthersville, for defendant-appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   MAUS, Judge.

A jury found the appellant guilty of burglary and stealing. The court sentenced appellant as a persistent offender to 15 years imprisonment on each count, to run concurrently.

The following is a brief summary of the facts. At 12:40 a.m. on September 29, 1983, Officer Whitworth of the Caruthers-ville Police Department approached and stopped at the intersection of Third and Carleton Streets. The intersection was governed by four-way stop signs. The patrol car was westbound. The appellant’s vehicle was northbound waiting to turn left. The officer sat at the intersection but appellant’s vehicle did not pull out even though it arrived at the intersection first. The officer saw that the trunk lid was up but could not see what was in the trunk. The officer motioned for the car to proceed and it then turned in front of the patrol ear. When it did, the officer saw there was a television in the trunk.

The officer stopped appellant’s vehicle for investigation. He surmised that “they acted kinda suspicious when they wouldn’t pull out in front of me and the trunk was up on their car.” The appellant and the officer got out of their respective vehicles. In response to a call, another officer came to the scene. A conversation took place during which the police were given permission to get the serial number of the television. The appellant said the television wasn’t his. He was hauling it for a guy who hired him and bought him $3 worth of gas. He didn’t know the guy’s name.

Because of the circumstances and incredible story, the officer placed the appellant and his passenger under arrest. Later at the police station at the time their personal belongings were taken, the appellant and his passenger each had a lady’s wristwatch removed from his possession. It was later established that the wristwatches and the television had been stolen from the same dwelling.

The appellant’s first point is that the trial court erred in admitting the wristwatches and the photo of the television set because the items were seized illegally. Appellant contends that the police had no probable cause to arrest, therefore the seizure of the items was invalid.

The appellant was lawfully stopped. “Where police officers entertain a reasonable suspicion that criminal activity may be afoot, they may stop the suspected person, identify themselves as police officers, require the suspect to identify himself and make reasonable inquiries concerning his activities.” State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979). Reasonable suspicion is present when the officer is “able to point to specific and articula-ble facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Lasley, supra, at p. 518, citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). It is not necessary that probable cause to arrest exist. Terry v. Ohio, supra. The standard is whether the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry v. Ohio, supra.

The circumstances were that appellant would not proceed, the trunk of his automobile was up and bouncing around and that he was hauling a television set through the city streets in the middle of the night. The officer had reasonable suspicion to stop the appellant. State v. McMahan, 583 S.W.2d 540 (Mo.App.1979). Also See State v. Purnell, 621 S.W.2d 277 (Mo.1981).

An arrest requires probable cause. This is “knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense.” State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980). Probable cause requires more than mere suspicion but “its existence must be determined by practical considerations of everyday life on which reasonable persons act and not the hindsight of legal technicians.” State v. Heitman, supra, at p. 253. The information in the possession of the arresting officer need not be that quantum of proof necessary to sustain a conviction. State v. Perry, 499 S.W.2d 473 (Mo.1973). After questioning appellant and hearing his less than credible explanation as to how he had acquired the television and why he was hauling it, a reasonable person could form that belief.

The fact that the police officer did not have knowledge of the particular burglary in which the items were taken did not vitiate probable cause to arrest. It was not necessary that the officer have received a report to conclude that a burglary had probably taken place. The facts presented were “sufficient to raise in the prudent man a belief that a crime has been committed” by the appellant. This constituted probable cause to arrest. State v. Heitman, supra, at 254.

It is not necessary to consider all of the possible justifications for the warrant-less seizure of the television.

It has long been the rule that evidentiary matter, contraband, instrumentalities of crime, and fruits of crime, which the police and other officials discover in plain view in the course of the performance of their official duties without their having searched for these things, may be seized without warrant or the knowledge gained thereby may be used as a basis for obtaining a search warrant.

Scurlock, Basic Principles of Arrest, Searches and Seizures, Privilege Against Self-Incrimination, 51 U.M.K.C. Law Rev. 401, 505 (1983). Also see State v. Smith, 675 S.W.2d 690 (Mo.App.1984).

The wristwatches were properly admitted. They were obtained during an inventory search incident to a lawful arrest. State v. Masters, 530 S.W.2d 28 (Mo.App.1975); State v. Pettis, 522 S.W.2d 12 (Mo.App.1975).

The appellant also asserts a photograph of a television set was improperly admitted. The basis for his point is apparently because the photographer was not identified. The officer testified it was a picture of the television taken from the appellant’s trunk. The owner and her daughter identified the photograph by an identifying mark on the television portrayed. The owner further identified it as the one stolen from her and returned to her by the police. The trial court did not err in admitting the picture. State v. Daugherty, 631 S.W.2d 637 (Mo.1982).

Appellant’s next point is that the jury panel was not a representative cross-section of the community in that one township was not represented in the jury panel on the day of trial. There were twelve townships from which names were drawn and persons from all twelve townships were summoned to appear. On the day of trial, however, for a reason not clear from the record, there was no person from Butler township in the jury panel.

The proof required to establish a violation of the cross-section requirement of the Sixth Amendment has been repeatedly and clearly stated. See State v. Williams, 659 S.W.2d 778 (Mo. banc 1983). “[I]t has been held that exclusion of veniremen from a geographical area is not per se violative of the Sixth Amendment to the United States Constitution.” State v. Alexander, 620 S.W.2d 380, 385 (Mo. banc 1981). Proof of the absence of a juror from Butler Township does not establish error. State v. Alexander, supra.

By two points the appellant challenges the sufficiency of the evidence. There was evidence the home of Bessie Mae Townsend was broken into on Wednesday, September 28, 1983, or Thursday, September 29, 1983; a television and wristwatches were taken from that home; and those items were found in the possession of appellant and his companion.

The unexplained possession of recently stolen property gives rise to a permissible inference of guilt and constitutes sufficient evidence to submit a case of burglary and stealing to the jury_ Moreover, the requirement that possession of stolen goods be “unexplained” means simply that the explanation for the possession is a question for the jury. The jury rejected Pickett’s explanation concerning the stolen goods.

State v. Pickett, 642 S.W.2d 703, 705 (Mo.App.1982) (citation omitted).

The jury rejected appellant’s explanation of his possession of the television. He offered no explanation for his possession of one of the watches. The evidence was sufficient. State v. Newberry, 605 S.W.2d 117 (Mo.1980).

The appellant’s point the state failed to prove the corpus delicti obviously is without merit. It is not necessary that the corpus delicti be proved in any particular order in the trial. State v. Easley, 515 S.W.2d 600 (Mo.App.1974). The fact that the proper elements were established during the course of trial is sufficient. State v. Wandix, 634 S.W.2d 203 (Mo.App.1982).

For his last point the appellant contends the evidence was too conflicting to support his guilt beyond a reasonable doubt. Appellant does not cite any specific instance of conflicting testimony. This court does not find the evidence to be conflicting, Even if there were instances of inconsistencies, resolution of that testimony would be for the jury. State v. Newberry, supra. The judgment of the trial court is affirmed.

PREWITT, C.J., CROW, P.J., and HOGAN and TITUS, JJ., concur.


author: RICHARD J. MEHAN, Special Judge.

text:
    In re Marriage of William T. REYNOLDS, Appellant, v. Dorothy A. REYNOLDS, Respondent.
    No. 45831.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 27, 1984.

      David J. Barton, Clayton, for appellant.
    Scott R. Kell, St. Louis, for respondent.
   RICHARD J. MEHAN, Special Judge.

The parties to this appeal received a decree of dissolution of their twenty-year marriage from the Circuit Court of St. Louis County. There were ten children of that marriage, seven of whom were un-emancipated at the time of trial. Custody of those seven children was given to the petitioner-husband William T. Reynolds who brings this appeal of certain parts of the dissolution decree. In this opinion, as a convenience to all, the petitioner-husband-appellant will be referred to as petitioner and the respondent-wife-appellee will be referred to as respondent.

Under the decree petitioner received a one-half interest as a tenant in common of the family home, was ordered to pay the mortgage note according to its terms, and was given the right to occupy the home until all of the children have attained their eighteenth year. Each of the parties is to receive fifty percent (50%) of the net sale price when that asset is sold in the future under the dissolution decree. His right to occupy the home is also to terminate if he remarries or cohabits there with a female. These last contingencies are attacked in this appeal. The petitioner has also appealed from the awards of maintenance of $115.00 per week and attorney’s fee of $2,375.00 to be paid to the respondent, Dorothy A. Reynolds. A cross-appeal filed by the respondent has been dismissed by this Court.

The attorney for the petitioner at trial and on appeal was David J. Barton. The attorney for the respondent at trial and on appeal was Scott Kell.

The following facts, adduced at the trial, are necessary to our consideration of this appeal. After the disposition of the marital home by the trial court, the parties were left with the following assets and liabilities: Petitioner was allowed to keep an $8,000.00 term life insurance policy and $600.00 from a West Virginia savings account. He also was allowed to keep two checking accounts in St. Louis, both with small balances. In addition, the petitioner received a 1975 Plymouth automobile and most of the furnishings in the family home. Petitioner was also given a tenancy in common one-half interest in the marital home, with the right to live in the home until the youngest child reaches the age of eighteen. The petitioner was ordered to make payments on the home mortgage debt of $30,850 and on other debts which totaled $7,626, including $4,000 owed on petitioner’s 1980 income tax. He currently earns $48,000 a year. It costs approximately $2,681.70 a month to run the household.

Respondent received a $5,000 savings account and a $200 checking account. In addition, she was given a 1977 Honda automobile, various items of furniture, and a tenancy in common one-half interest in the marital home. Respondent also had set aside to her as her separate property a $23,000 inheritance from her grandmother, and 308 shares of stock given her by her father. Respondent’s debts included a $3,326 dental bill. Respondent is in her middle forties and has a sophomore level college education. She successfully completed a medical transcribing course at Forest Park Community College, and has worked part-time, earning a maximum of $4.95 an hour. The respondent’s projected salary is approximately $500.00 a month. The respondent’s physical health has been affected by rheumatic fever as a child, which left her with a heart murmer and a paroxsymal tachycardia (rapid heartbeat). She has testified that she has had difficulty in obtaining medical coverage, and also fears that her employability may be affected by her physical condition. The respondent will be 55 years of age when the youngest child, born in 1975, is eighteen. She also testified that the price of an apartment of the type she is accustomed to will cost about $400.00 a month. Since leaving the marital home, respondent has been living with several friends, paying whatever she could afford for rent.

Petitioner, prior to the final dissolution of his marriage, went away for a weekend with a girlfriend, to whom he gave several gifts. During the same period, petitioner was unable to keep up with the temporary maintenance payments of $175.00 a week or the original attorney’s fees awarded to respondent at the PDL hearing. His salary was garnished to meet these payments. In addition, petitioner has on several occasions borrowed money from his children. On one occasion, his son brought the house payments up to date in order to prevent a foreclosure of the mortgage.

Our review here is governed, of course, by those standards promulgated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We have read the transcript, the briefs and the authorities cited herein by both parties and conclude that the decree of the trial court, except in one specific area is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. The trial court had the task of judging the credibility of the witnesses and assessing the value of the testimony. We defer without hesitation to the trial court’s judgment in those areas. We do not interfere in this opinion with those judgments where there is sufficient supporting evidence.

The petitioner only presents three specific claims of error, namely, the trial court erroneously awarded maintenance and an attorney’s fees to the respondent and it erroneously conditioned the petitioner’s occupation of the family home on his remaining single and his not cohabitating with a female.

The first two claims present substantially the same issues and can be disposed of by consideration of the same evidence. The petitioner contends that the respondent’s income and assets are sufficient to meet her expenses of the dissolution litigation and her financial needs generally, present and future. He further argues that his own financial requirements, especially since he is to be the custodial parent, militate against his capacity to pay any maintenance award or any attorney’s fee award.

A trial court is vested with substantial discretion in making maintenance and attorney’s fee awards and in dividing marital property. In Re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976). As an appeals court, we should not interfere with the trial court’s exercise of its discretion in those areas unless there is an abuse of discretion or an erroneous application of the law. The trial court’s awards were properly based in part on the economic positions of the respective parties. N.J.W. v. W.E.W., 584 S.W.2d 148, 152 (Mo.App.1979). The trial court obviously and reasonably considered the age of the respondent, the substantial disparity in the earning power of the parties and the health problems of the respondent.

The petitioner has not questioned the allocation of marital assets by the trial court, nor do we. The allocation of the marital assets was fairly and reasonably proportionate considering the earning power of the parties, the debts assigned to each party, the living costs of each party and the child support costs of the husband. In Re Marriage of Pehle, 622 S.W.2d 711, 713 (Mo.App.1981). The decision to give each party fifty percent (50%) of the net sale price appears fair and reasonable under the law and the evidence. See Section 452.330, RSMo. 1983 Supplement and Ortmann v. Ortmann, 547 S.W.2d 226 (Mo.App.1977). Many factors including inflationary trends make unfair and inequitable a fixed sum payment to the respondent on the future sale of the family home. The parties on such sale should receive a percentage of the net proceeds of the sale after the payment of appropriate charges, mortgage reductions and sale expenses, rather than a fixed sum.

We do note that Missouri law does not require that a spouse dispose of her assets or consume her allocated marital property for her living expenses before she would be entitled to maintenance. In Re Marriage of Arnold, 632 S.W.2d 28, 29 (Mo.App.1982). With that rule in mind we have an additional reason not to question the maintenance award to the respondent. However, we realize that in our review of the maintenance award the division of the marital property was a factor for our consideration. We believe that the award was within reasonable tolerance of proof as our previous appellate decisions have required. Horridge v. Horridge, 618 S.W.2d 202 (Mo.App.1981).

The allowance of an attorney’s fee is a matter entrusted to the trial court’s discretion. Section 452.355, RSMo. 1983, directs the trial court to consider all relevant factors. A trial court’s judgment should not be reversed without this Court finding an abuse of discretion. The petitioner does not maintain on this appeal that the amount of the attorney’s fee awarded was excessive. We have no reason to so find. We believe the trial court in this case did consider the circumstances of the parties, the ability of the petitioner to pay the attorney’s fee awarded and compared and considered the income, assets and debt involvement of each party. The award here appears to be consistent with the facts in this case and all the other decisions of the trial court affecting the financial conditions of the parties. Hebron v. Hebron, 566 S.W.2d 829, 835 (Mo.App.1978).

The last claim of trial court error involves the decision of the trial court that the petitioner’s remarriage or his cohabitation with a female would deny him the continued use of the family home. We are unable to discern any valid reason for the imposition of such conditions in the dissolution decree. If either event occurs and impacts on the welfare of the children or the need for husband’s occupancy of the home, modification of the decree can be sought at that time.

We order that portion of the decree providing that husband’s continued occupancy of the marital home shall terminate upon his cohabiting therein with a female or remarrying be stricken and held for naught. In all other respects the judgment is affirmed.

SMITH, P.J., and GEORGE M. FLANI-GAN, Sp.J., concur.


text:
    STATE of Missouri, Respondent, v. Stanley SAWYER, Appellant.
    No. 47343.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.
    Joseph W. Downey, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Defendant, Stanley Sawyer, was convicted of forgery, § 570.090.1(4), RSMo (1978), after a jury trial. He was sentenced by the court as a prior and persistent offender to imprisonment for five years. On appeal, his sole allegation of error is premised on the refusal of the trial court to give MAI-CR2d 2.37.3(2), the so-called “Claim of Right” defense instruction. We affirm.

Since defendant does not challenge the sufficiency of the evidence, it is unnecessary to recount the facts. A review of the record discloses that the State clearly made a submissible case.

We now consider defendant’s claim of error. The claim of right defense is limited by statute to the crimes of tampering, property damage, and stealing. §§ 569.130 and 570.070, RSMo (1978). It has been logically extended by judicial decision to a charge of burglary based on entry to a building with the intent to steal. State v. Quisenberry, 639 S.W.2d 579, 582 n. 4 (Mo. banc 1982). Thus neither statute nor case law is supportive of defendant’s position. Further, note 3 of MAI-CR2d 2.37.3(2) specifically limits the instruction to those crimes where it is statutorily applicable.

Even if we were inclined to extend the claim of right instruction to the crime of forgery, which we are not, this court has no authority to declare erroneous those instruction forms 'and their accompanying Notes on Use. State v. Dixon, 655 S.W.2d 547, 560 (Mo.App.1983). Defendant’s point is denied.

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.