author: WELLIYER, Judge. BLACKMAR, Judge, RENDLEN, Chief Justice, GUNN, Judge,

text:
    Steven Walter LUCAS, Plaintiff-Respondent-Cross-Appellant, v. DANIEL INTERNATIONAL CORPORATION, Defendant-Appellant-Cross-Respondent.
    No. 65793.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Rehearing Denied Jan. 15, 1985.
    Richard G. Callahan, Charles R. Miller, Jefferson City, for plaintiff-respondent-cross-appellant.
    John E. Burruss, Jr., J. Kent Lowry, Jefferson City, for defendant-appellant-cross-respondent.
   WELLIYER, Judge.

Respondent, Steven Walter Lucas, brought this suit for malicious prosecution against appellant Daniel International Corporation in the Circuit Court of Callaway County. The cause initially was tried in Cole County on a change of venue. The jury returned a verdict for respondent, awarding him $250,000 in actual damages and $200,000 in punitive damages. The trial court sustained a motion for a new trial, apparently on the ground that the verdict was so grossly excessive as to indicate bias, passion and prejudice. The case was retried in the Circuit Court of Pettis County and the jury returned a verdict for respondent in the sum of $200,000 in actual damages and $750,000 punitive damages. The trial court granted a remittitur of $450,000 on the ground that the punitive damage award was excessive and against the weight of the evidence. Appellant thereupon appealed to the Court of Appeals, Western District, and respondent cross-appealed. Pursuant to Rule 83.06, the Western District recommended transfer prior to opinion in light of our taking transfer in Sanders v. Daniel International Corp., 682 S.W.2d 803 (Mo. banc 1984), decided herewith. We reverse and remand.

The facts surrounding the criminal prosecution from which the case arises are identical in all relevant respects to those in Sanders. Reference should be made to that case for a complete statement of the circumstances prompting this litigation. For our purposes, it is sufficient to note that respondent herein was one of seven persons charged on the basis of a complaint signed by appellant’s agents, with the misdemeanor of attempted theft of tools and gauges valued at over fifty dollars. The prosecutor later dismissed the charges.

Appellant has raised several points on appeal, but we need not address these questions because we conclude our holding in Sanders v. Daniel International Corp., supra, controls the disposition of this appeal. In Sanders, we held that a plaintiff suing on a theory of malicious prosecution must prove that the defendant initiated the prosecution “primarily for a purpose other than that of bringing an offender to justice.” Sanders, supra, at 814, quoting Restatement (Second) of Torts § 668 (1965). In addition, we held that to qualify for punitive damages in a malicious prosecution action, a plaintiff must prove that the defendant acted out of actual malice, i.e., that his conduct was prompted or accompanied by ill will, or spite, or grudge, ...” Sanders, supra, at 815, quoting E. Devitt & C. Blackmar, 3 Federal Practice and Instructions 85.11, at 121 (3rd ed. 1977).

The judgment is reversed and remanded for retrial consistent with our opinion in Sanders, supra, at 816.

HIGGINS, BILLINGS and DONNELLY, JJ., concur.

BLACKMAR, J., concurs in result in separate opinion filed.

RENDLEN, C.J., and GUNN, J., dissent in separate opinions filed.

BLACKMAR, Judge,

concurring in result.

I agree that the judgment should be reversed and the case remanded for new trial for the reasons stated in my Opinion Concurring in Result in Sanders v. Daniel International Corporation, No. 65529, 682 S.W.2d 803 handed down today.

RENDLEN, Chief Justice,

dissenting.

I respectfully dissent and would reverse the judgment of the trial court for the reasons set forth in the dissenting opinion of Judge Gunn. Again however, as in the Sanders v. Daniel International Corp., 682 S.W.2d 803 (No. 65529 Mo. banc December 18, 1984), I endorse the suggested jury instruction forms set forth in the separate opinion of Judge Blackmar by which he concurs in result in that case.

GUNN, Judge,

dissenting.

For the reasons stated in my dissenting opinion in Sanders v. Daniel International Corporation, 682 S.W.2d 803 (No. 65529 Mo. banc December 18, 1984), I dissent from the majority opinion here. The record appears desolate of evidence of any malice by defendant.


source: Caselaw Access Project

author: SMITH, Judge. PER CURIAM.

license: Public Domain

text:
    ST. JOSEPH’S HILL INFIRMARY, INC., Plaintiff-Respondent, v. Rabbi Herbert J. MANDL, et al., as members of the Missouri Health Facilities Review Committee, Non-appealing Defendants, and Pacific Care Center, Inc., Defendant-Appellant.
    No. 47685.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 22, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 10, 1984.
    Case Transferred to Supreme Court Sept. 11, 1984.
    Case Retransferred to Court of Appeals Jan. 23, 1985.
    Original Opinion Reinstated Jan. 29, 1985.

      John W. Howald, Louis J. Weber and Floyd T. Norrick of Thurman, Smith, How-ald, Weber & Bowles, Hillsboro, for defendant-appellant.
    David M. Harris of Greensfelder, Hemker, Weise, Gale & Chappelow, P.C., St. Louis, for plaintiff-respondent.
    Louren R. Wood, Asst. Atty. Gen., Jefferson City, Mo., for Rabbi Mandl, et al., The Missouri Health Facilities Review Committee. *
   SMITH, Judge.

Pacific Care Center, Inc. (defendant) appeals from the judgment of the trial court holding void a certificate of need for a nursing home issued to it by the Missouri Health Facilities Review Committee (Committee) acting pursuant to Sec. 197.300 et seq. RSMo 1982 Cum.Supp. The petition upon which the trial court acted was filed by St. Joseph’s Hill Infirmary, Inc. (plaintiff). The defendant’s nursing home is proposed to be located in Pacific, Missouri. St. Joseph’s operates two nursing homes within a 15 mile radius of the Pacific site and would be in competition with the proposed nursing home.

The trial court determined that (1) St. Joseph’s had standing to bring this action, (2) the certificate of need was void because the Committee failed to prepare findings of fact and conclusions of law, and (3) the time for review mandated by Sec. 197.330 was complied with and the application was not approved by operation of law under that section. We conclude that the trial court erred in its determination of standing and accordingly reverse. In so doing we do not reach the remaining issues or determine the validity of the certificate of need.

The Missouri Certificate of Need Law (hereinafter CON) was enacted in 1979, in response to the National Health Planning and Development Act, 42 U.S.C.A. 300k et seq. and more specifically Secs. 300 m-6 and 300 n-1. The federal act requires that a designated state agency have the authority under state law to administer an acceptable certificate of need program. The act is not technically mandatory but it does establish an optional program which a state must implement in order to receive federal funds allocated by the act.

“The essence of the certificate-of-need program is the requirement that any proposed construction of or significant capital expenditure for health facilities in a state be certified to be necessary by the State Agency before it is offered. The program is intended to reduce unnecessary duplication in health care facilities and thereby, it is hoped, reduce the cost of health care to consumers.” Greater St. Louis Health Systems Agency v. Teasdale, 506 F.Supp. 23 (E.D.Mo.1980) [1] l.c. 28.

The Committee is the designated state agency to administer the CON program. Also in the picture are health systems agencies (HSA) which are regional health planning organizations designated directly by the Secretary of Health and Human Services.

With this background we return to the state statute. When a new facility for health care is planned the person proposing to develop or offer the new institutional health service must submit a letter of intent to the Committee and a “request” to both the HSA and the Committee thirty days prior to filing the application for a certificate of need. Sec. 197.325. The Committee, within very restricted time frames, must process the application when made, cause notice to be given to “affected persons” and contiguous HSA’s, hold public hearings if requested by any “affected person,” consider recommendations by the appropriate HSA, make written findings of fact and conclusions of law, issue its approval or denial of the application, and serve its findings, conclusions, and decision on the applicant, the HSA and any “affected person” who has requested them. Sec. 197.330. “Affected person” is defined to mean “the person proposing the development of a new health care service, the public to be served, the health systems agency and health care facilities within the service area in which the proposed new health care service is to be developed.” Sec. 197.305(1). Failure of the Committee to issue its decision within the time mandated by the statute constitutes approval of the application. Sec. 197.335 provides:

“Within thirty days of the decision of the committee, the applicant or the health systems agency within whose area the new institutional health service is to be offered may file an appeal in accordance with the provisions of sections 161.-252 to 161.342, and Chapter 536, RSMo, provided, that venue of any appeal to the circuit court shall be in the county within which such health care service or facility is proposed to be developed.”

The question of the standing of a competitor to appeal from the issuance of a certificate-of-need is one of first impression in this state. There are, however, cases dealing with other administrative decisions which provide guidance. Plaintiff here is clearly an “affected person” under the statute. As an “affected person” it is entitled to notice and a public hearing on the application for a certificate-of-need. But that status does not in itself give plaintiff standing to appeal the decision of the committee. As stated in State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669 (1956) [15-17] quoting from 73 C.J.S. Public Administrative Bodies and Procedure, § 176, p. 517:

“Not every person who files a protest and is given an opportunity to be heard by the adminstrative agency has a right to appeal from an order of the agency, but whether a particular person has the right to contest administrative action is largely a question of law, dependent on a number of variable factors, including the nature and extent of his interest, the character of the administrative act and the terms of the statute.”

The terms of the statute before us give the right of appeal solely to the applicant and the HSA for the area where the new service is to be offered. It does not grant such right to all “affected persons” which would include members of the public. It has consistently been recognized that while the public welfare is intended to be the controlling factor in administrative agency decisions, it was not intended that every citizen may participate in any case. If such participation, including rights of appeal, were allowed, it would prevent the agency from functioning efficiently. State ex rel. Rouveyrol, supra, [11]; City of Richmond Heights v. Board of Equalization of St. Louis County, 586 S.W.2d 338 (Mo. banc 1979) [5]. The statutory framework of the CON statute provides for an appeal by the applicant, which has a private interest, or by the area HSA, which exists to protect the public interest. We find no express authority under the statute for an appeal by plaintiff.

Plaintiff contends, however, that its right to appeal is guaranteed by Art. V, Sec. 18, Mo. Const, which provides:

“All final decisions, findings, rules and orders on [sic] any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; ...”

That constitutional provision has in turn been implemented by Sec. 536.100 RSMo 1978 as follows:

“Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case ... shall be entitled to judicial review thereof....”

A party is aggrieved when the judgment operates prejudicially and directly upon his personal or property rights or interests. Such operation must be immediate and not merely a possible remote consequence. The Hertz Corporation v. State Tax Commission, 528 S.W.2d 952 (Mo. banc 1975) [2]. The right or interest involved must be one the law protects. It must also act directly on an interest of the person who claims the right of review in a manner distinct from the effect on the general public. State ex rel. Schneider v. Stewart, 575 S.W.2d 904 (Mo.App.1978) [16, 17]. The definition of “aggrieved” found in these cases serves to define the “private rights” which must be affected to trigger the constitutional provision.

Generally speaking the “right” to be free from legitimate competition is not a right at all and is certainly not one protected by law. State ex rel. Rouveyrol v. Donnelly, supra, [1-4]; City of Eureka v. Litz, 658 S.W.2d 519 (Mo.App.1983) [12]; Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320 (Mo.App.1976) [4]; Schmitt v. City of Hazelwood, 487 S.W.2d 882 (Mo.App.1972) [13]. We did recognize in City of Eureka v. Litz, supra, that a competitor may achieve the status of an “aggrieved person” based upon the legislative policy of the particular statute establishing the administrative review. This recognition was expressed in Bank of Belton v. State Banking Board, 554 S.W.2d 451 (Mo.App.1977) and Farmer’s Bank of Antonia v. Kostman, 577 S.W.2d 915 (Mo.App.1979) [1-3]. Those cases arose under the licensing provisions of the banking statutes and because of certain parallels to the statutes now before us and the language of the Belton case, in particular, some review of the banking cases is warranted.

The Supreme Court addressed the standing of a competitor to appeal the granting of a banking license in State ex rel. Rouveyrol v. Donnelly, supra. The statutes then in force provided for review pursuant to the statutes pertaining to the Public Service Commission. Those statutes in turn limited those allowed to participate in appellate review to the commission and “each party to the action or proceeding before the commission.” Sec. 386.510 RSMo 1949. Sec. 386.420 RSMo 1949 provided for intervention in the Commission proceedings of “such corporations and persons as the commission may allow to intervene.” Intervention gives a person the status of a party and must be based upon having such an interest in the outcome that participation in the proceedings is justified. The Supreme Court found that a competitor did not have a sufficient interest in a bank licensing proceeding to qualify as an interested person if the question of standing is determined by the Public Service Commission statutes. The Court then went further and held that the review procedures of Sec. 386.510 determine the kind and manner of review but that the parties entitled to review must be determined by the banking statutes. It found no authority in those statutes to grant a competitor standing to seek judicial review and no authority to allow intervention. In dealing with the provisions of Art. V, § 22 Mo. Const., the predecessor to Art. V, § 18 and identical in all parts here pertinent, the Court held that the minimum requirements of that provision were satisfied. The applicants for a license were the persons whose private rights might be affected and the commissioner and subsequently the board of bank appeals represented the general public interest in the exercise of the police power. State ex rel. Rouveyrol v. Donnelly, supra, [20]. That case was followed in State ex rel. Belle-Bland Bank v. Donnelly, 287 S.W.2d 872 (Mo.1956).

The predecessor of Sec. 536.100 RSMo 1978 was in effect at the time of the Rou-veyrol decision. Laws 1945, p. 1504 § 10. It provided that a person who was aggrieved by a final decision in a contested case “shall be entitled to judicial review thereof, as provided in this section, unless some other provision for judicial review is provided by statute; ...” The Supreme Court’s finding that a competitor was not entitled to appellate review under the banking statutes and the absence of any reference to Sec. 536.100 as conferring any other right of review buttresses the conclusion that the Rouveyrol court found no aggrievement to a competitor as such. State ex rel. Rouveyrol v. Donnelly recognizes two distinct concepts in determining standing in appeals from administrative decisions. The Constitutional right to such an appeal is based upon the fact that the decision affects the “private rights” of the person appealing. If such rights are affected the legislature cannot restrict the right of appeal although it may provide for the method of review. State ex rel. State Highway Commission v. Weinstein, 322 S.W.2d 778 (Mo. banc 1959) [7, 8] [16]. The general assembly is free, however, to expand the right of appeal if it chooses to do so. State ex rel. State Highway Commission v. Weinstein, supra. [7, 8] [17]. If it determines that the public welfare is best served by permitting those interested in the decision to participate, albeit no “private rights” of theirs are affected for Constitutional purposes, it may do so. It may through its legislative enactments allow interested persons to become parties, or allow them appeal privileges. If it does so such persons may become “aggrieved” for purposes of that administrative procedure or tribunal. That does not mean that similarly situated persons are “aggrieved” by the action of a different administrative body under a different statute.

The matter considered in State ex rel. Rouveyrol v. Donnelly was subsequently addressed in Bank of Belton v. State Banking Board, supra. In the interim the banking statutes had been amended to provide for intervention by competitor banks (Sec. 361.095 RSMo 1978). The court, however, did not place its decision solely upon the amendment of the banking laws giving competing banks a position equivalent to a party. It also concluded that a competitor is “aggrieved” when the “judgment operates prejudicially and directly — with immediate consequence — upon a personal or property right or interest.” [2], The court then concluded that threatened competition affected such a property right or interest placing the competitor bank within the coverage of Art. V, Sec. 18 (mistakenly referred to as Sec. 22). The court then went on to state:

“The law favors free competition among banks but within a system of regulation ... That principle is best served by the grant of standing to a competitor adversely affected by new competition authorized by administrative decision.” [2].

The court did not analyze the nature of the private right or interest affected by the administrative decision. As we have pointed out heretofore, there is no right to be free of competition nor a private interest in preventing competition. There is no question that regulation of banks, and of medical facilities under the CON statutes, is premised upon maintaining the business in healthy condition by reducing competition and thereby insuring that those providing banking and medical service are strong viable entities able to serve the public more effectively and efficiently at lower cost. The purpose of restricting competition through licensing is to benefit the public generally, not to protect the rights or interests of the regulated companies. As such, competitors may be the beneficiaries of the licensing procedures but those procedures do not directly affect their “private rights.” We believe this was recognized in State ex rel. Rouveyrol v. Donnelly, supra, in denying constitutional appeal status to competitors in banking cases. The concept of banking regulation did not change between that case and the Belton bank case and we find the conclusion of the court in the latter case that competitor banks have constitutional appeal status to be contrary to the Rouveyrol decision. We have no quarrel with the Belton Bank conclusion that the statutory change regarding intervention evidenced a legislative intention to allow full party privileges to competing banks including appeal rights. By statutory provision competing banks became “aggrieved parties” in banking licensing cases.

Whether the system of regulation is best served by allowing competitors to participate in the administrative procedure is a legislative determination. In the case of banking, that determination has been made in the affirmative. In the case before us, it has been made in the negative. As originally proposed, House Bill No. 222, 80th General Assembly, provided for appeal only by the applicant or the HSA. As perfected in the House, the bill contained amendments made in committee which provided that “any affected person participating as a party in the formal review may appeal the decision to the circuit court ...” The Conference Committee Substitute for House Bill 222 which was enacted and signed by the governor deleted the quoted language and reinstated the language of the original bill, thereby restricting the right of appeal to the applicant and the area HSA. This is strong, persuasive evidence of the legislative intent to restrict the right of appeal. Supportive also of this legislative intention is the rigid time schedule imposed by the statute and the automatic approval provision signifying that final action on the application is to be concluded expeditiously. Only if the action of the Committee is such as to trigger the appellate opposition of the HSA, representing the public interest, is final determination of necessity to be delayed for an appellate review. The competitive considerations in the medical care field and the banking field are similar but not identical. The impact on the individual from the bankruptcy of a medical facility is far different than the impact from a bank failure. A major purpose in reducing or stabilizing competition in the medical facility field is to effect economies of operation resulting in lower health care cost. 42 U.S.C.A. 300k(a). A major purpose in the banking field is to insure solvency of the institutions and resultant security of the assets of customers. There are also differences in the number of potential competitors of an applicant in the two areas and the resultant complication and delay in processing. There is also a difference in the availability of an agency to represent the public interest, particularly in view of the existence of HSA’s whose function is exactly that. Finally there are differences between the need for immediacy of determination to approve the license. These are all factors for legislative consideration in determining who should be given appeal status. The nature of the CON law does not mandate a finding that it inherently requires an opportunity for appeal by a competitor.

We conclude therefore that plaintiff has no constitutional right to review under Art. V, Sec. 18 and that it has not been accorded “aggrieved” status under the provisions of the CON legislation.

Plaintiff also points to the federal law and opines that it was the legislative intent to provide in the Missouri law whatever was required by the federal act. We note in passing that the Missouri law differs from the federal act in several respects. See Greater St. Louis Health Systems Agency v. Teasdale, supra. In addition the review criteria of the federal act provides as a minimum that review be provided for those “adversely affected by a final decision ...” 42 U.S.C.A. 300 n-l(b)(12)(E). “Adversely affected” is not further defined. Only when the regulations promulgated by the Secretary are reached do we find an expressed federal policy to allow appeal by competitive health providers. 42 C.F.R. 123.410(a)(14) and 123.401. Even those guidelines are not mandatory upon the states as they are subject to waiver by the Secretary or subsequent amendment. 42 U.S.C.A. 300 n-1(a). We do not feel constrained to conclude that the Missouri statute automatically encompasses whatever may be included in the present or subsequent regulations of the Secretary in the absence of a clear statement that that is the legislative intent. We not only do not find such a statement but the legislative history, heretofore chronicled, establishes the specific rejection of the review suggested in the regulations.

Plaintiff had no standing to appeal the finding of the Committee and the trial court lacked jurisdiction over plaintiffs petition.

Judgment reversed and plaintiffs petition is ordered dismissed.

GAERTNER, P.J., and STEPHAN, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Plaintiff in its motion for rehearing has called to the court’s attention the fact that regional health service agencies (HSA’s) were abolished by executive order of the Missouri governor in 1982. Their functions were assumed by the State Health Planning and Development Agency (SHPDA). Plaintiff contends this fact, not previously addressed in the briefs, was overlooked by the court in arriving at its decision and that the reliance of the Court upon HSA’s to protect the public interest is misplaced.

Our references to HSA’s as protectors of the public interest were made in connection with our analysis of the legislative scheme found in the certificate of need law. We concluded that the general assembly elected to provide appeal status from the granting of a certificate of need only to the regional HSA, and elected to deny such status to other persons. Subsequent abolition of the HSA’s by executive order in no way changes the legislative enactment which does not grant to plaintiff a right of appeal. Our decision was not premised upon a determination that if HSA’s could not appeal plaintiff could. The appeal rights of HSA’s were simply a rationale for a legislative determination that no need existed for appeal by persons such as plaintiff. The general public interest is represented by the Committee itself and SHPDA. State ex rel. Rouveyrol v. Donnelly, 285 S.W.2d 669 (Mo. banc 1956). There is no requirement of law of which we are aware that requires appellate review of the Committee grant of a certificate of need except when “private rights” are affected. We have already held that no “private rights” of plaintiff are affected. The absence of HSA’s does not warrant or mandate a judicial substitution of competitors for HSA’s as a source of appellate review. If such review is advisable the legislature is free to so provide. To date it has not done so.

Motions for rehearing and for transfer to the Supreme Court denied.

      . The question of when the clock begins to run — upon initial filing of the application or when it is deemed to be complete — was determined by the trial court to be the latter. We are not reviewing that finding.

      . We are authorized to examine the original bills to determine the legislative intent (State ex rel. Danforth v. European Health Spa, Inc., 611 S.W.2d 259 (Mo.App.1980) (On motion for rehearing)) or to examine the journals of the general assembly (Bullington v. State, 459 S.W.2d 334 (Mo.1970) [1]). We have therefore obtained from the Secretary of State certified copies of the printed proposed bills constituting the legislative history of the Certificate of Need Law.

      . The definition of "affected person” describes those persons contained in Sec. 197.305(1) heretofore quoted and would include plaintiff.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Darnell DUCKETT, Appellant.
    No. 47297.
    Missouri Court of Appeals, Eastern District, Division One.
    May 29, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1984.
    Case Transferred to Supreme Court Sept. 11, 1984.
    Case Retransferred to Court of Appeals Feb. 1, 1985.
    Original Opinion Reinstated Feb. 8, 1985.
    H. Paul Fox, Asst. Public Defender, Clayton, for appellant.

      John Ashcroft, Atty. Gen., Stan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

This is an appeal from a jury conviction for the crimes of burglary, first degree (§ 569.160, RSMo.1978), attempted rape (§ 564.011, RSMo.1978), robbery, first degree (§ 569.020, RSMo.1978), and armed criminal action (§ 571.015, RSMo.1978). Judgment and sentencing were entered in accordance with the jury verdict.

No jurisprudential purpose would be served by a written opinion.

Judgment affirmed. Rule 30.25(b).


author: SIMON, Judge.

text:
    ANHEUSER-BUSCH, INC., Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant.
    No. 46832.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Donald L. McCullin, St. Louis, for respondent.
    John Ashcroft, Atty. Gen., Melinda A. Corbin, Asst. Atty. Gen., Jefferson City, for appellant.
   SIMON, Judge.

Missouri Commission on Human Rights (MCHR), appeals from a judgment of the Circuit Court of the City of St. Louis affirming in part and reversing in part an order of MCHR. On appeal, MCHR contends the trial court erred in: (1) reversing, in part, MCHR’s order and (2) assessing costs against MCHR, an agency of the state, since costs cannot be assessed absent statutory permission. Respondent, Anheu-ser-Busch, Inc. (Busch), contends that our court is collaterally estopped from reversing the trial court’s order because the identical issue presented here was finally resolved on its merits in Busch’s favor in another proceeding. We reverse in part and affirm in part.

Phyllistine Quinn, a black female, began working for Busch as a bottler on July 8, 1975. During her employment, Quinn was disciplined on numerous occasions, finally resulting in a four (4) week suspension.

Quinn filed a complaint with MCHR alleging disparate treatment by Busch in violation of § 296.020.1(l)(a), RSMo 1978, as amended, which states, in pertinent part, “[i]t shall be an unlawful employment practice [f]or an employer, because of the race ... of any individual [t]o ... discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual’s race ... sex_” MCHR investigated the allegation and issued a Finding of Probable Cause but the parties failed to agree on a resolution and a public hearing was set before a hearing examiner appointed by MCHR.

At the hearing, Quinn acknowledged that she was disciplined in accordance with Busch’s policy, but stated that white employees with similar attendance records were reviewed less frequently and reprimanded less severely for similar violations. Her attendance record and the records of three white employees were offered to support the allegation. The following is a summary of several of plaintiff’s exhibits:

David Curran, a plant supervisor, was called as a witness by Busch. His testimony consisted of a detailed explanation of Busch’s policy and procedure for handling absenteeism, Quinn’s disciplinary record and the disciplinary records of the three white employees.

The hearing examiner’s findings of fact are, in pertinent part, as follows:

9.[Busch’s] absentee control policy, Plaintiff’s exhibit No. 1, provides a progressive discipline system to handle employees with an absentee problem. For purposes of the absentee control policy, an employee who is late for work or who leaves work early is treated as if he or she were absent. An absence which extends for a period of consecutive days is treated as one absence and not as one for each day missed.
The first step of the absentee control policy is applied if an employee is absent in excess of 15 times in a year. The next step of the progressive discipline system is applied if the employee is absent eight (8) or more times during the ensuing six months or between the last disciplinary action and the next review of his or her attendance record, whichever period is shorter.
The progressive discipline steps of the absentee control policy are as follows:
a. verbal warning;
b. reprimand;
c. one (1) to three (3) day suspension;
d. three (3) day to one (1) week suspension;
e. two (2) week suspension;
f. four (4) week suspension; and
g. termination.
If an employee corrects his or her absentee problem so that his or her absences number fifteen (15) or less for one year, then his or her record is wiped clean and any future absentee problem will activate the progressive discipline system at the reprimand stage.
10.[Busch’s] absentee control policy provides for a review of each employee’s attendance record every three (3) to four (4) weeks.
The evidence indicates that the reviews were less frequent and at irregular intervals.
11. Although [Quinn] denied being absent or tardy as many times as [Busch’s] records indicated, there is no dispute that she had progressed to the four (4) week suspension stage of the progressive discipline system when she was suspended for four (4) weeks on January 9, 1979.
12. [Busch’s] absentee control policy was applied to [Quinn],
13. The ultimate factual dispute to be resolved is whether [Busch’s] absentee control policy was applied to [Quinn] in the same manner in which it was applied to Fred Reising, George Geno and Mary Biermann, white persons employed as bottlers for [Busch].
14. Although the evidence does not disclose the frequency with which [Quinn’s] attendance records were reviewed, it is certain they were reviewed at or near the time of each disciplinary action taken against her. Thus, [Quinn’s] attendance record was reviewed at or near the following dates:
a. October 14,1975 — (reprimand)
b. August7,1977 — (reprimand)
c. October 6,1977 —(2-day suspension)
d. April 21,1978 — (1-week suspension)
e. June 28,1978 — (2-week suspension)
f. January 8,1979 — (4-week suspension)
15.The evidence also fails to disclose the frequency with which the attendance records of Reising, Geno and Biermann were reviewed.
16. It is clear, however, that the attendance records of the above-mentioned white employees were reviewed less frequently than [Quinn’s] or, in the alternative, that [Busch’s] absentee control policy was not applied to them when reviews of their records disclosed violations of the policy.
17. If the attendance records of the three white employees had been reviewed as frequently as [Quinn’s] were and if [Busch] had applied its absentee control policy to them, each of the three white employees would have progressed to a more severe disciplinary step of the progressive discipline system than they did.
18. David Curran, [Busch’s] supervisor of plant employee relations, was [Busch’s] only witness. He articulated reasons for the less frequent reviews of George Geno’s and Mary Biermann’s attendance records. The reasons he gave were that Geno was away from work for an extended period of time because of personal family problems and illness and that Biermann was laid off for an extended period of time. He indicated that the extended absence of Geno and Bier-mann obviated the necessity of reviewing their attendance records at normal frequency.
Curran was unable to articulate a reason for Fred Reising’s attendance record being reviewed less frequently than [Quinn’s].
19. A review of the attendance records of Geno and Biermann substantiates [Busch’s] contention that they were absent from work for extended periods of time.

Based on his findings, the examiner made conclusions of law, in pertinent part as follows:

2. [Busch] is an employer within the meaning of Section 296.010(2), RSMo 1978.
3. In order to establish a prima facie case of race discrimination in violation of Section 296.020(l)(a), RSMo 1978, with regard to the suspension, Plaintiff must establish:
a. [Quinn] is protected by the statute;
b. [Quinn] was suspended; and
c. Some evidence from which to infer that [Quinn’s] race was a factor in [Busch’s] decision to suspend her.
Plaintiff has established a prima facie case of race discrimination with regard to the suspension. There was no dispute that [Quinn] a black female, is protected by Chapter 296, RSMo 1978, or that she was suspended. Plaintiff completed its prima facie case by adducing evidence that similarly situated white employees’ attendance records were reviewed less frequently than [Quinn’s] and that as a consequence, [Quinn] received more severe discipline than did the white employees with similar attendance problems.
5. If the Plaintiff establishes a prima facie case, the burden shifts to [Busch] to articulate a legitimate, non-discriminatory reason for the disparate treatment. McDonnell Douglas v. Green, 411 U.S. 792, 803 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668] 5 FEP Cases 965 (1973). The reasoning of the McDonnell Douglas case was cited with approval in dictum in General Motors v. Fair Employment, Etc., 574 S.W.2d 394, 397-398 (Mo. banc 1978), and in County of St. Louis v. Brooks, et al., 614 S.W.2d 283 (Mo.App., E.D.1981).
6. [Busch] articulated legitimate, nondiscriminatory reasons for the less frequent reviews of the attendance records of George Geno and Mary Biermann. It did not, however, articulate a legitimate, nondiscriminatory reason for the less frequent review of the attendance record of Fred Reising.
7. Plaintiff has established that [Quinn’s] attendance record was reviewed more frequently than a similarly situated white employee, the result of which was that [Quinn] was disciplined more severely than was Fred Reising for a similar number of absences.
Without the articulation of a legitimate, nondiscriminatory reason for the disparate treatment, the inference that [Quinn’s] race was a factor remains unre-butted.
8. Plaintiff has established by a preponderance of the evidence that [Quinn’s] race was a factor in [Busch’s] decision to suspend her for four weeks.

Based on his findings and conclusions of law, the examiner recommended the following Decision and Order:

1. That [Busch] shall cease and desist from using race as a factor in its decision to discipline some employees more severely than others.
2. That [Busch] shall expunge from [Quinn’s] personnel records any reference to the discriminatory suspension of January 8, 1979.
3. That [Busch] shall institute procedures to ensure that the attendance records of all its plant employees are reviewed on a regular and uniform basis; and shall file a report outlining such procedures with the Missouri Commission on Human Rights’ compliance section within thirty (30) days of the date this decision and order becomes final.
4. That Plaintiff has failed to establish that [Quinn] is entitled to any back pay as a result of [Busch’s] discrimination.

MCHR adopted the hearing examiner’s findings, decision and and order concluding that the decision to suspend Quinn was based upon her race.

The Circuit Court of the City of St. Louis, reviewing MCHR’s decision and order, pursuant to § 296.050 RSMo 1978, affirmed orders (3) and (4), but reversed orders (1) and (2) finding:

There was no substantial and competent evidence to support the Commission’s finding that [Busch's] absentee control policy was applied to [Quinn] in a discriminatory manner. The only evidence before the Commission on the entire issue of whether said policy was applied discriminatorily was a comparison of the application of the policy to [Quinn], a black, and three white employees. The Commission found that the evidence did not disclose the frequency with which [Quinn’s] attendance records were reviewed, nor the frequency with which the attendance records of the three white employees were reviewed. Commission’s Findings of Fact 14 and 15. Despite this, however, the Commission then made an inconsistent finding that the records of the white employees were reviewed less frequently than [Quinn’s]. Commission’s Finding of Fact 16. This indicates the Commission’s decision was not based on competent and substantial evidence on the record. The Commission’s further finding in Finding 16, “that [Busch’s] absentee control policy was not applied to them (white employees) when reviews of their records disclosed violations of the policy “is also unsupported by the record. The Commission merely assumed that because [Quinn] was disciplined more often, her record must have been reviewed more frequently.
The white employees were disciplined under the employer's absentee control policy. Furthermore, the Commission found, in Finding 18, that there were reasons why two of the three white employees’ attendance records might be reviewed less frequently than [Quinn’s]. See also the Commission’s Conclusion of Law No. 6, which concludes that [Busch] articulated legitimate, nondiscriminatory reasons for the less frequent review of the attendance records of two of the three white employees.
Thusly, it could only be upon the comparison between the frequency of review of [Quinn’s] records with that of one white employee’s (Reising’s) that the Commission could possibly have based its erroneous orders. There was no competent and substantial evidence upon the record to support discrimination against [Quinn] by comparing the frequency of review of her absenteeism with that of this one white employee’s. Even if the evidence had shown a difference in frequency of review and discipline, it would not be very impressive, because it would not be a statistically significant number of comparison to conclude bias.

On appeal, MCHR argues that the circuit court erred in reversing orders 1 and 2. We agree and therefore reverse the judgment of the circuit court with respect to those orders.

At the outset we stress the narrow scope of review of administrative decisions. The Commission’s decision is to be affirmed unless its findings are not supported by competent and substantial evidence on the record; its decision is arbitrary, capricious or unreasonable, or unauthorized by law. St. Louis County Board of Election Commissioners v. Missouri Commission on Human Rights, 668 S.W.2d 592, 594 (Mo.App.1984). “Although this court may have decided the case differently as an original proposition, we, as well as the trial court, must defer to the administrative tribunal’s findings of fact. Nei-' ther a circuit court nor an appellate court may substitute its judgment for that of the administrative board.” Percy Kent Bag Co. v. Missouri Commission on Human Rights, 632 S.W.2d 480, 487 (Mo. banc 1982) (citation omitted).

Based on our review of the record, we conclude that MCHR’s findings were supported by substantial evidence. It is undisputed that the frequency with which attendance records were reviewed was not established. The circuit court found this especially significant, because it appears to be inconsistent with MCHR’s later findings as to the relative frequency of review of the employees’ attendance records. We find that plaintiff presented evidence from which to infer that Quinn’s attendance records were reviewed, or discipline was imposed, more frequently than for the three white employees.

David Curran, Busch’s supervisor of plant employee relations, testified that a disciplinary violation notice would be sent out a few days after a review of an employee’s records. Thus, because Quinn was disciplined six times, her records must have been reviewed six times, at or near the dates of disciplinary action. This is, essentially, MCHR’s Finding of Fact 14. By reviewing the attendance records of the three white employees, which were before the Commission, and are a part of the record here, it is clear that, if Busch had reviewed those records as frequently as it reviewed Quinn’s, those employees would have been disciplined more frequently than they actually were. This is, essentially, MCHR’s Finding of Fact 17. Because the white employees were not so disciplined, there can be only two conclusions; either Busch did not review the white employees’ records as often as Quinn’s, or Busch did not impose discipline when a review of the records disclosed violations of the company’s policy. This is, essentially, MCHR’s Finding of Fact 16. The finding is a reasonable inference raised by the evidence, not merely an assumption. Having established that Quinn was treated differently from the white employees, plaintiff produced evidence from which it could be inferred that her race was a factor in the action taken against her. Thus, there was a pri-ma facie case of racial discrimination. See Barnes Hospital v. Missouri Commission on Human Rights, 661 S.W.2d 534, 538 (Mo. banc 1983).

Busch articulated legitimate non-dis-eriminatory reasons for the less frequent review and discipline of two of the three white employees. The hearing examiner and MCHR found these reasons to be supported by the evidence and accepted them as true. There was, however, no reason given for the preferential treatment afforded the third white employee. Busch had the burden of producing some evidence to show a legitimate non-discriminatory reason. Id. at 538. Its failure to do so, leaves the inference of racial discrimination unre-butted. The circuit court therefore erred in finding that the order was not supported by substantial evidence.

We turn now to Busch’s contention that the doctrine of collateral estoppel bars a reversal of the circuit court’s judgment. Collateral estoppel operates to prevent relitigation of issues already determined in a suit between the same parties. Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). We do not apply it here, however, because the record is barren of any indication that the issue involved here was ever decided before. We are confined to reviewing the record that is presented to us. Williams v. Clean Coverall Supply Co. Inc., 613 S.W.2d 659, 664 (Mo.App.1980). Busch’s assertions in its brief, unsupported by any reference to the record, see Rule 84.04(h), do not present the question to us for review. Coulter v. Michelin Tire Corp., 622 S.W.2d 421, 437 (Mo.App.1981). We therefore reject Busch’s point.

MCHR, on its second point, contends the trial court erred in assessing costs against it for the reason that absent a statutory provision allowing an assessment of costs against a state agency, no such assessment can be made. We agree. Generally, absent a statutory provision, court costs cannot be assessed against the State of Missouri, or its agencies or departments. Further, we find no statute authorizing an assessment of costs in this situation. The trial court erred in assessing costs against MCHR. Its second point is well taken.

The judgment of the trial court as to MCHR’s orders 1 and 2 and the assessment of costs is reversed. Its judgment as to MCHR’s orders 3 and 4 is affirmed.

CRIST, P.J., and PUDLOWSKI, J., concur.

      . Procedurally, the attorney general was the plaintiff at the hearing, § 296.040.4 RSMo 1978, and neither Quinn nor MCHR was formally a party. Reference to plaintiff therefore are to the attorney general, who presented the case in support of the complaint. All references to Busch, Quinn, and MCHR have been changed to identify them by name rather than by their procedural status.


author: CRIST, Presiding Judge.

text:
    In re the Marriage of Joann SMITH, Petitioner-Appellant, v. Wayman SMITH, III, Respondent-Cross-Appellant.
    No. 47500.
    Missouri Court of Appeals, Eastern District, Division Seven.
    Oct. 9, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Steve Vossmeyer, Susan Spiegel, New-burger & Vossmeyer, St. Louis, for petitioner-appellant.
    David B. Lacks, Alisse C. Camazine, Clayton, for respondent-cross-appellant.
   CRIST, Presiding Judge.

Husband and wife both appeal from the decree dissolving their 18-year marriage. The marital property was divided approximately one-half to each party. General custody of the parties’ 16 year old daughter was granted to husband with wife to have temporary custody about one-half of the time. Wife was awarded $300.00 per month child support because of the time daughter would spend with her, and $2,000.00 per month as maintenance. Wife was not represented by her present counsel in the trial of this matter. We modify and affirm as modified.

Both parties attack facets of the division of property, the custody arrangement, and the maintenance award, husband claiming excessiveness and wife claiming inadequacy. Husband also attacks the award of child support. With reference to the claimed errors in the child custody and support arrangements, and the award of maintenance, the judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An opinion with reference thereto would have no precedential value. We affirm in accordance with Rule 84.16(b).

Husband states the trial court erred in dividing the marital property in (1) not allocating marital debts; (2) awarding wife one-half of several stock options received as employment benefits because some of the stock options were not vested, and therefore not marital property; (3) not severing the stock options; and (4) giving wife more than her fair share of the marital property.

Wife states the trial court erred in dividing the marital property in (1) not severing the stock options; (2) dividing marital property when there was no evidence of the value of such property; (3) failing to divide all marital property on which there was evidence; and (4) giving husband more than his fair share of the marital property.

We find each party received a fair and considered portion of the marital property. There was no error in failing to divide the debts. Flach v. Flach, 645 S.W.2d 718, 720-21 (Mo.App.1982).

Wife asserts the trial court failed to have sufficient evidence to value a KEOGH Plan and an Anheuser-Busch Investment Credit Stock Ownership Plan which were awarded to husband. The trial courts are bombarded with dissolution cases which, by statute, requires division of the property. Section 452.330 RSMo.1978. The trial judge is often at the mercy of the lawyers. The trial judge cannot introduce evidence, yet he or she has a duty to make a fair division of the property. He or she must rely on the discovery and introduction of evidence by the parties’ lawyers regarding the existence and value of property. Aside from default cases, the parties have at least an equal burden to carry on the matter of evidence of value in a dissolution. A complainant should not be rewarded for presenting insufficient evidence of property values.

Wife made no specific reference to the lack of evidence of value of either the KEOGH Plan or the Investment Credit Stock Plan in her motion for new trial. She has not shown why she did not present more evidence as to their value, nor does she show that husband failed to present evidence on the question. Husband listed the KEOGH Plan on his statement of property, and at trial fixed its value at $46,000 to $50,000. Wife did not seriously challenge these figures, nor did she introduce other evidence on the point. If wife wanted more specific or different value figures, she should have presented evidence to establish them. See Dardick v. Dardick, 670 S.W.2d 865 (Mo. banc 1984).

With reference to the investment credit stock ownership plan, wife introduced evidence of the number of shares of stock held in the plan in husband’s name, the price of the stock, and other details of the plan. Wife cannot complain the trial court erred because her evidence was insufficient to value and award the plan. McLaughlin v. McLaughlin, 585 S.W.2d 567, 568, 570[5] (Mo.App.1979).

Wife claims the trial court erred by failing to dispose of a parcel of real property. She listed in her statement of property real estate on Aldine Avenue, purchase price and value unknown. There was no evidence presented of any interest of the parties in this property. Wife, both at trial and in her brief, disclaims any knowledge of any interest the parties may have had in this real estate. Since there was no evidence as to any interest the parties may have in this property the court committed no error in not distributing it. If the parties become aware of any interest in this property, then they may bring an action to dispose of the same. Ploch v. Ploch, 635 S.W.2d 70, 72 (Mo.App.1982).

Both parties agreed there were some stocks in evidence not disposed of. The trial court awarded stock valued at $2,600 to wife. Husband testified he owned assorted stock worth between $4,000 and $6,000. The record shows the remainder of this stock should have been distributed to husband. We amend the decree to so award this stock to husband.

Finally, both parties assert the trial court erred in failing to sever the interests of the parties in husband’s stock option plans. Husband was involved in two stock option plans: The Anheuser-Busch Companies, Inc. 1981 Incentive Option Plan, and the Anheuser-Busch Companies, Inc. 1981 Non-Qualified Stock Option Plan. The plans consisted of the following options:

Only two options were exercisable at the time of trial; the rest matured at varying dates in the future. Husband, to exercise the option, had to be employed by Anheu-ser-Busch on the option date. The options were not transferable.

The court held these options to be marital property, and distributed one-half to each party. Husband under the decree had the right to decide to exercise any of the options. If he exercised one, he was to give wife thirty (30) days notice. Wife had those thirty days to provide husband with the cash to buy a one-half interest in that option on her behalf. If she did not provide him the cash, she forfeited her right to one-half of that option. Each was to pay a share of the income taxes on the options.

The trial. court retained jurisdiction to determine questions that may arise concerning the implementation of the disposal of the stock options.

Husband challenges the classification of the options which were not exercisable at the time of trial as marital property. He claims that, as the exercise of those options is contingent upon his continued employment with Anheuser-Busch, they are not vested and are his separate property under Kuchta v. Kuchta, 636 S.W.2d 663, 665 (Mo. banc 1982). While this would be in stage one of Kuchta if it were a pension plan, this is a stock option plan. It has already been earned, while a pension is earned over the whole period of the worker’s employment. Kuchta, 636 S.W.2d at 665. The value is fixed, and is not subject to change except by market forces. It was “created by the joint effort of the spouses” and may be treated a marital property under the flexible approach mandated in Kuchta. Id. The only contingency involved here, that husband will leave his employment with Anheuser-Busch prior to the date he may exercise the options, has been adequately provided for by the court’s decree, which provides for no distribution until such time as husband acquires the stock.

Both husband and wife assert the interests of the parties in these options should have been severed, and, in general, it is better for that course of action to be followed. Lynch v. Lynch, 665 S.W.2d 20, 23 (Mo.App.1983). However, if there are sound economic reasons why severance in not feasible or advisable, the parties may be left as tenants in common. Murray v. Murray, 614 S.W.2d 554, 555-56 (Mo.App.1981). In the case at bar, the property rights are contingent upon future conditions and events. The trial court has formulated a plausible solution to the division of the stock options.

The decree is modified to provide husband to have the stock in a bankrupt company and assorted stocks valued at between $1,400 to $3,400.

Judgment affirmed as modified.

BRUCE NORMILLE and E. RICHARD WEBBER, Special Judges, concur.


text:
    SIESTA MANOR, INCORPORATED, Plaintiff-Appellant-Respondent, v. COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant-Respondent.
    No. 47081.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Jerome J. Duff, St. Louis, for plaintiff.
    Robert C. Jones, Clayton, for defendant.
   ORDER

PER CURIAM.

Action to set aside a foreclosure sale. Plaintiff below received a money judgment. It is ordered that the appeal be dismissed as moot in accordance with Rule 84.16(b).


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Ray GRAYSON, Defendant-Appellant.
    No. 47658.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Dec. 18, 1984.
    Janet Flenner Catalona, Clayton, for defendant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM:

Defendant was convicted by a jury of three counts of first degree assault, three counts of robbery first degree, and one count of armed criminal action. He was sentenced to a total of 160 years imprisonment but with some of the sentences to run concurrently resulting in a net total sentence of 70 years. No jurisprudential purpose would be served by an opinion.

Judgment Affirmed. Rule 30.25(b).


author: WILLIAM E. TURNAGE, Special Judge.

text:
    STATE of Missouri, Respondent, v. Dolores C. MILLER, Appellant.
    No. 46947.
    Missouri Court of Appeals, Eastern District, Division Eight.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.

      Robert B. Ramsey, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for respondent.
   WILLIAM E. TURNAGE, Special Judge.

Dolores C. Miller was found guilty by a jury of capital murder in the death of her husband Errol. On the state’s failure to request the death sentence, Dolores was sentenced to life imprisonment with no chance of probation or parole for fifty years.

Dolores contends the evidence was insufficient to support the verdict, she was denied a fair trial because of extensive publicity before and during her trial, she was denied a fair trial because the trial was conducted in a carnival atmosphere, the state failed to disclose certain evidence, and expert testimony was admitted which relied on a test, the results of which were ruled inadmissible. Affirmed.

Dolores was working for a dating service in Memphis, Tennessee, when she noticed a letter from Errol enclosing an advertisement by which he was seeking to meet a lady through the service. Dolores asked her supervisor if it would be all right for her to correspond with Errol instead of running his ad in the dating service publication. Upon receiving a favorable response, Dolores began corresponding with Errol in the fall of 1981. They first met in November of 1981, in Arkansas, at a point midway between Memphis and Errol’s home in Dixon, Missouri.

On January 15, 1982, Dolores went to Dixon and on January 21, she and Errol were married. On January 28, Errol deleted his children’s names from his bank account and replaced them with Dolores’ name. The account was a $20,000 savings certificate.

Dolores was a licensed practical nurse and knew prior to the marriage that Errol had been having health problems. Although the record does not reveal Errol’s age, Dolores was about fifty-two when the two were married.

On February 8, 1982, Errol was admitted to Truman Veterans Administration Hospital in Columbia. He had a history of blackouts and seizures and after a series of tests was performed, it was determined that he had a brain tumor. Errol remained in the hospital until he underwent surgery on February 26 for the removal of the tumor. Further tests revealed that the tumor was malignant.

Dr. Walter Levy, a neurosurgeon, performed Errol’s surgery. Shortly after surgery, he advised Dolores that Errol should improve and have some useful life. He testified that immediately after he had advised Dolores of Errol’s condition, she stated that she wanted to donate his body to medicine. Dr. Levy said this was a most unusual response from a family member.

Errol was placed in intensive care after the surgery. He improved to the point that he was removed from that unit on March 4 and taken to a private room. About 2:45 p.m. that day, Dr. Levy visited Errol and found him somewhat lethargic but not out of the range of normal variations. Dr. Levy was concerned, however, and ordered some tests. About 5:00 p.m. that same day, Errol was found to be in a deep coma. Dr. Levy felt that something catastrophic must have happened and immediately ordered more tests. A “CAT-SCAN” (brain x-ray) was done but it revealed nothing abnormal in connection with the surgery site. Blood tests showed that Errol’s blood sugar had dropped to thirty-two, an abnormally low level. The normal blood sugar range is between sixty and one hundred twenty. Dr. Levy was puzzled by Errol’s abnormal blood sugar level because the medications Errol was on following surgery generally elevate one’s blood sugar level. Errol was given a large infusion of sugar in the intravenous solution (IV) which had been in his arm vein since the surgery, but when another blood test was run, his blood sugar was even lower, at twenty-four. He was given another large infusion of sugar, and the standard five percent intravenous glucose solution which he had been receiving was increased to ten percent. An endocrinologist was consulted, and by 8 o’clock the next morning Errol’s blood sugar level was finally restored to normal. However, Dr. Levy testified that by 5:00 p.m. on March 4, Errol had suffered brain damage to the point that he had little chance of being more than a vegetable, and by midevening his condition was probably beyond any medical ability to restore brain function.

When Dr. Levy advised Dolores of Errol’s condition on March 5, she requested that the life support equipment be removed, but Dr. Levy refused her request. Dolores subsequently repeated her request several times and stated that she was a nurse and knew that the practice was not unusual. On March 6 Dolores again discussed Errol’s condition with Dr. Levy and stated that she had seen people in his condition and she bet that he would be dead by ten o’clock that night. Dr. Levy replied that it was possible for Errol to live for months. However, Errol died on March 10.

Three physicians who had treated Errol, including Dr. Levy, testified that it was their opinion that Errol died as a result of the abnormally low blood sugar level that occurred on March 4, and that this abnormal condition could have resulted only from a large dose of insulin. The physicians testified that the brain can only use sugar or glucose for energy and it is capable of storing only about a ten or fifteen minute supply of glucose. When the brain is deprived of an adequate glucose supply, it ceases to function properly. If that condition persists, brain cells begin to die and swelling occurs. If that continues long enough the person will enter into a coma and death can result. All three physicians gave the opinion that Errol died because of the low blood sugar level, which in turn caused the brain cells to cease functioning and ultimately resulted in the coma and his death. The physician who performed the autopsy on Errol testified that the cause of death was an insulin overdose and that he listed that on Errol’s death certificate.

After Errol died, Dolores wanted to have his body removed from the hospital immediately. Dolores became angry when told an autopsy was necessary, but the autopsy was performed. There was also evidence that Dolores had experience in administering insulin in her work as a practical nurse, and she knew that if a person received too much insulin, a coma could result.

After Errol’s death Dolores was arrested and subsequently gave a statement which the state introduced. In it she stated that she had found a syringe at the nurses’ station and had found a vial of insulin in a refrigerator. On March 4 she injected about one hundred units of insulin into Errol’s IV. Shortly thereafter, Errol became comatose.

A hospital employee testified that Dolores told her on March 1 that Errol would be dead by March 4, although at that time his progress was satisfactory. A woman whose husband was also in the hospital had become acquainted with Dolores. She testified that on March 4, between 2:00 and 3:00 p.m., she went to Errol’s room and saw Dolores standing next to the bed. When Dolores saw her, she jumped to the front of the bed and put something in her purse. Dolores then raised Errol’s arm in the air and said, “Looky here, he’s had another stroke” and dropped his arm to the bed. Dolores also told the lady that “If the old son-of-bitch lives he’s going to a nursing home, I’m not going to fool with him.” Dolores further said that she didn’t care whether Errol lived or not.

The landlady at the house where Dolores was staying in Columbia testified that Dolores told her that she had managed to get all of Errol’s money into her name.

Dolores testified in her own behalf and admitted making the statement to the police consisting of four and one-half pages. She said three of the pages were true, but that the fourth page, which contained her admission of obtaining the syringe and insulin and injecting it into Errol’s IV, was made up by the police officers. She denied injecting Errol with insulin. Dolores also presented highly qualified physicians who testified that they could not say that the cause of death was an insulin overdose.

Dolores contends that the evidence was insufficient to support the verdict. In determining the sufficiency of the evidence to support the verdict, this court accepts as true all evidence and all reasonable inferences in support of the verdict and disregards that part of the evidence contrary to the verdict. State v. Turner, 623 S.W.2d 4, 6[1, 2] (Mo. banc 1981). Viewing the evidence just recited in that light, it is apparent that there was sufficient evidence from which the jury could have believed that Dolores injected one hundred units of insulin into Errol’s IV, which then carried the insulin directly into his blood stream and caused an extremely low blood sugar level. This in turn induced a coma by depriving the brain of its necessary supply of sugar or glucose and death resulted.

Dolores contends that she was denied a fair trial because of prolonged and extensive broadcast and print media publicity both before and during her trial. The case was filed in Columbia but was removed to Franklin County on a change of venue. The St. Louis Post Dispatch ran an article about the case on the Sunday prior to the Monday commencement of trial. The venire was extensively examined about this newspaper article and any other publicity, and every venireman who was challenged for cause was excused by the court. The present attack is a very general attack as to the extent of the publicity and Dolores does not assert that any particular venireman seated as a juror had been affected by any publicity. The question of publicity was thoroughly examined by both parties and the court, and there is no indication whatsoever that any juror had formed any ideas about this case or that publicity affected any juror in any way.

Dolores next contends that the physical design of the courthouse and the general carnival atmosphere made it impossible for her to receive a fair trial. She relies upon Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), however, there is no similarity whatsoever between this case and Sheppard. In contrast to Sheppard, where the trial judge turned over the courthouse and courtroom to the press and media, the trial judge in this case maintained strict control over the courtroom. Also in contrast with Sheppard, the jury in this case was sequestered from the time it was selected. During recesses a portion of the third floor hallway adjacent to the courtroom was roped off for the jury’s exclusive use. There is not a hint in this record that anyone talked with the jury or that the jury was subjected in any way to outside influences. Dolores contends she was confronted by reporters and photographers each time she entered and left the courthouse, but there is no indication that the jury saw this. On the contrary, the record indicated that the court, before excusing the jury each day, had the jury leave the courtroom in the company of bailiffs, and only after the jury had departed were the other persons in the courtroom allowed to leave. Further, the court exercised firm control over spectators and allowed them to enter and leave the courtroom only during breaks in the testimony.

The record is replete with measures taken by the trial judge to insure that the trial was not interrupted by spectators and to insure that the jury was kept apart from everyone else. There is nothing in the entire record of about 1100 pages that indicates any improper conduct on the part of the jury or anyone else.

Dolores contends that the state failed to reveal certain medical records in response to Dolores’ motion for discovery. Nothing in the legal file indicates that Dolores filed a discovery request. This failure alone would be sufficient to deny the point. State v. Clark, 592 S.W.2d 709, 718[9] (Mo. banc 1979). Beyond that, Dolores raised no objection during the trial that any medical records had been withheld, and none of her medical witnesses voiced concern about any missing records.

Dolores also contends that the Sunday newspaper article contained favorable character evidence that the state had not disclosed to her. She argues that this good character evidence qualifies as new evidence entitling her to a new trial. Counsel did not introduce any character evidence concerning Dolores, probably because she admitted in her testimony that she had been convicted in 1963 on five counts of writing bad checks. Furthermore, all of the evidence that Dolores contends was newly discovered concerns her own activities which were surely known to her. This evidence thus could not possibly meet the first requirement of newly discovered evidence — that the evidence must have come to her knowledge since the trial. State v. Riley, 536 S.W.2d 501, 505[12-14] (Mo.App.1976). Surely Dolores knew of her past activities, and her decision to forgo character evidence cannot in any way be attributed to the state’s failure to inform her of her own past activities.

Dolores contends that the physicians who testified on the state’s behalf based their opinion on the result of the C-Peptide test. On objection by Dolores’ counsel, the court had excluded the C-Peptide test results. None of the physicians testified that they considered this test in forming their opinion and counsel, by objection, made sure in the case of at least one physician that this was true. In short, nothing in the record indicates that any •witness had relied on the test in forming his opinion.

Dolores argues that the state failed to prove a motive for the crime. The facts outlined above certainly show a motive, but even assuming they do not, motive is not an element of a crime and proof of it is not essential to sustain a conviction. State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 737[6, 7] (1947).

The record reveals that Dolores had a fair trial with sufficient evidence to support the jury’s verdict. The judgment is affirmed.

PUDLOWSKI, P.J., and MELVYN WIESMAN, Special Judge, concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmie JONES, Defendant-Appellant.
    No. 47227.
    Missouri Court of Appeals, Eastern District, Division Eight.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Cynthia S. Holmes, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM:

Appeal following a verdict by a jury finding Jones guilty of robbery in the first degree § 569.020, RSMo 1978, and kidnapping § 565.110, RSMo 1978. The sentence was twenty years imprisonment on the robbery charge and five years on the kidnapping charge with the sentences to be served consecutively.

Judgment affirmed. Rule 30.25(b).

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Eric CLEMMONS, Appellant.
    No. 47539.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.

      Terry Burnet, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from jury convictions for capital murder and a Class A felony of Assault in the First Degree. Defendant was sentenced to life imprisonment without eligibility for probation or parole for a minimum of fifty years on the capital murder conviction (the death penalty having been waived) and ten years imprisonment on the assault convictions. The sentences were to be served concurrently. Defendant requests a new trial due to several instructional errors. We affirm.

On August 14, 1982, at about 1:30 in the morning, defendant, seven other men, and one woman were standing on the corner of Maryland and Whittier in the City of St. Louis. Six of these men, defendant, and the first victim testified as to the events that transpired thereafter. First victim testified he and deceased were coming down the street when they were attacked by three to five people. Deceased ran away while the attackers severely beat first victim with the aid of what first victim said was a baseball bat wielded by defendant. First victim was hospitalized by the beating.

While their testimony varied in the exact details of who did what to whom, those with defendant testified generally that while the group was talking, they heard a noise from down on Maryland. Defendant’s brother was yelling that he was being robbed. The group went to his rescue, passing the deceased who was walking or running away. They found defendant’s brother fighting with first victim, using a pipe as a weapon. After first victim was subdued and beaten, someone suggested they go after deceased. He was caught and beaten, defendant inflicting the fatal blows with the pipe. Defendant’s testimony largely confirmed this account, with defendant claiming he went after deceased to recover gold chains deceased allegedly stole from defendant's brother, and that he hit deceased with the pipe in self-defense after deceased swung at him with a board.

Defendant asks for a new trial because of the submission of the capital murder instruction, MAI-CR2d 15.02 as modified by MAI-CR2d 2.12. He argues the instruction was erroneous because, in the paragraphs denominated First, Second, Third, Fourth and Fifth, the “other persons” defendant was alleged to have aided and abetted in the commission of capital murder were not named. Recognizing the error was not preserved for appeal, he requests review of this point as plain error. Rule 30.20.

This instruction was proper. Paragraph four of the Notes on Use to MAI-CR2d 2.12 indicates use of this instruction is appropriate when the evidence shows defendant acted with, or aided in any manner, another person or persons in the commission of an offense. The italicized portions of the instruction instruct the court to include the names of the other(s) involved, whose conduct or intent is to be imputed to the defendant. However, if the identity of these other person(s) is unknown, the court is clearly instructed to include “a general identification of the other(s) involved, such as ... ‘other person(s).’ ”

The evidence is not clear as to who was with defendant when he struck the fatal blows. Three witnesses identified two persons, one other witness identified three (the two identified by the first witnesses plus a third), another identified one (who was one of those identified by the first witnesses), and defendant identified two (the one of the first two not identified by the last witness and an entirely new person). Given this lack of clarity, we find no plain error in the use of the general identification in the challenged instruction.

Defendant claims reversible error in the submission of the instruction on justifiable homicide, MAI-CR2d 2.41.1, including paragraph two of the model instruction presenting the law of self-defense which indicated that only if defendant was not the initial aggressor could the jury acquit him on the basis of self-defense, and omitting paragraph three of the model instruction presenting the law on self-defense when defendant was justified in being the initial aggressor. Defendant testified deceased and first victim had stolen a gold chain from defendant’s brother during the first encounter, and therefore, as it is claimed defendant was only attempting to arrest deceased, his initial aggression was justified and he did not lose his right to defend himself. He cites § 563.051 RSMo 1978 in support of the theory. The evidence was insufficient to support an instruction based on this theory of justification as there was no evidence defendant was attempting to affect an arrest. There was no error in giving the instruction.

Defendant claims the trial court erred in instructing the jury on a Class A Felony of Assault in the First Degree because the indictment was ineffective to charge that offense. He was charged in accordance with § 565.050 RSMo 1978 which states:

1. A person commits the crime of assault in the first degree if:
(1) He knowingly causes serious physical injury to another person; or
(2) He attempts to kill or to cause serious physical injury to another person; or
(3) Under circumstances manifesting extreme indifference to the value of human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby caused serious physical injury to another person.
2. Assault in the first degree is a class B felony unless committed by means of a deadly weapon or dangerous instrument in which case it is a class A felony.

The indictment, which cited the statute and specified charge of a Class A Felony, did not contain an allegation the offense had been committed by means of a dangerous instrument. Defendant relies on State v. Gilmore, 650 S.W.2d 627 (Mo.1983) to argue an element of the crime was omitted from the indictment thereby rendering it, and all subsequent proceedings thereon, a nullity.

Defendant’s reliance on Gilmore is misplaced. The indictment for capital murder in Gilmore, although it correctly cited the statute involved, did not allege the defendant in that case acted “deliberately.” 650 S.W.2d at 628. As deliberation is an essential element of the offense of capital murder, it must be alleged, and, if it is not, then the indictment is defective. 650 S.W.2d at 629. In this ease, it is admitted the indictment correctly charged assault in the first degree. Classification as a Class A Felony only enhanced the punishment, and did not change the charged offense of Assault in the First Degree. Compare 565.001 RSMo 1978 with § 565.050 RSMo 1978, and § 570.030 RSMo 1978. See State v. Bradshaw, 643 S.W.2d 834, 836 (Mo.App.1982).

Defendant’s last contention is the trial court erred in submitting MAI~CR2d 19.02, on Assault in the First Degree by means of a dangerous instrument, without a paragraph requiring the jury to find defendant was not acting under the influence of an extreme emotional disturbance caused by the robbery of his brother. There is no merit to this point. While a robbery of one’s brother might be sufficient to cause such an extreme emotional disturbance in an ordinary person, a question we do not consider or decide, there is no evidence from which it could be concluded that defendant was acting under the influence of such a disturbance. State v. Taylor, 651 S.W.2d 603, 605 (Mo.App.1983); State v. Bienkowski, 624 S.W.2d 107, 109 (Mo.App.1981).

Judgment affirmed.

DOWD, P.J., and CRANDALL, J., concur.


text:
    Renee Gale SHIELDS, Plaintiff-Appellant, v. David E. HELLING, Defendant-Respondent.
    No. 48098.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Susan M. Hais, Clayton, for plaintiff-appellant.
    Ellsworth Cundiff, St. Charles, for defendant-respondent.
   ORDER

PER CURIAM.

Appellant appeals trial court order trans-fering custody of two children to respondent. The judgment is affirmed in accordance with Rule 84.16(b).

All Judges concur.


author: PREWITT, Chief Judge.

text:
    James R. VAUGHN and Joan Vaughn, Plaintiffs-Appellants, v. Ellis E. SPITZ, Defendant, and Wright County Bank, Garnishee-Respondent.
    No. 13560.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 20, 1984.
    Motion for Rehearing Overruled and to Transfer to Supreme Court Denied Dec. 12, 1984.
    Patrick J. Platter, Daniel, Clampett, Rit-tershouse, Lilley, Dalton, Powell & Cunningham, Springfield, for plaintiffs-appellants.
    Arthur E. Curtis, Greene, Curtis & Dority, Springfield, for garnishee-respondent.
   PREWITT, Chief Judge.

Plaintiffs received a monetary judgment against defendant. Thereafter, plaintiffs requested, and there was issued, a general execution and garnishment proceedings toward garnishee Wright County Bank. Interrogatories were then submitted by plaintiffs to the garnishee. By its answers to the interrogatories garnishee denied any obligation to defendant, and stated that defendant “does have a joint checking account with his wife, Elsie Spitz.”

Plaintiffs’ excéptions to garnishee’s answers to interrogatories admitted that defendant and his wife had a joint bank account and that the bank had no other personal property of defendant in its possession or control. The exceptions alleged that defendant had deposited more than $2,700 into the bank account. Plaintiffs claimed that defendant was the sole owner of these funds and that the deposit was a transfer without consideration and in fraud of creditors contrary to the provisions of § 428.020, RSMo 1978. Plaintiffs asked the court to order garnishee to pay the $2,700 into court for plaintiffs’ benefit. The trial court sustained garnishee’s motion to dismiss and plaintiffs appeal.

Where a husband and wife hold a bank account as joint tenants it is presumed to be held as tenants by the entirety. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 896 S.W.2d 570, 580 (Mo. banc 1965). Ownership of bank accounts in this manner has long been recognized in Missouri and in some other jurisdictions. See Annot., Estates by entirety in personal property, 64 A.L.R.2d 8, 79 (1959). That the account here is held as tenants by the entirety is not disputed.

An execution arising from a judgment against the husband alone ordinarily cannot affect a bank account or other property held by a husband and wife as tenants by the entirety. Hanebrink v. Tower Grove Bank & Trust Company, 321 S.W.2d 524, 527 (Mo.App.1959). See also Annot., 11 A.L.R.3d 1465, 1484 (1967). But cf. Huff v. St. Louis Postal Employees Credit Union, 457 S.W.2d 239 (Mo.App.1970) (entireties account subject to set-off for note signed only by husband).

However, if the creditor contends that the debtor created apparent ownership of his property so as to defraud creditors, a garnishment proceeding is an appropriate proceeding to determine if there has been a fraudulent transfer. Harrison v. Harrison, 417 S.W.2d 39, 42 (Mo.App.1967); McDaniel v. Bryan, 123 Mo.App. 640, 100 S.W. 1103, 1104 (1907).

Creditors may reach funds in the bank account of another if the funds actually belong to the debtor. Hilke v. Bank of Washington, 251 S.W.2d 963, 966 (Mo.App.1952); Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 759 (Mo.App.1944).

The notice of garnishment and summons to garnishee is not in the record, but the request for execution and garnishment and the order for execution and garnishment do not mention Mrs. Spitz. These documents seek a levy on real estate and a bank account at Wright County Bank. The appellants do not assert that the bank was notified that there was a claim against any funds in defendant and his wife’s name, until the plaintiffs’ exceptions were filed.

In dispute here is whether the notice of garnishment and summons to garnishee should have identified the bank account as held by defendant and his wife, rather than only referring to defendant. Garnishee contends that the notice and summons was ineffective to attach the joint bank account because it was not put on notice that the joint bank account was sought as the notice and summons only recited defendant’s name and he had no bank account standing only in his name.

Due to the unique nature of entire-ties property, defendant did not have a bank account at the bank to be attached. In an entireties bank account as well as other entireties property, each of the tenants has an undivided interest in the whole of the property and no separate interest. Hanebrink, 321 S.W.2d at 527.

The account was not defendant’s but an account owned by defendant and his wife as a “single person”. See Leuzinger, supra, 396 S.W.2d at 580. “The money on deposit in a joint deposit of husband and wife does not belong to the husband, nor is it half the husband’s and half the wife’s or part his and part hers. The deposit, made in their joint names, and not to them or either of them, belongs to them ‘undividedly’”. Id.

If plaintiffs wished to attach the account, it should have been accurately described. By not describing the account as that of defendant and his wife the account was never attached.

On the necessity of the writ or notice of garnishment and summons to describe the account sought see Staley v. Brown, 244 Miss. 825, 146 So.2d 739, 741 (1962); R & M Tire Service Co. v. Deposit Guaranty Bank & Trust Co., 172 Miss. 436, 160 So. 274, 276 (1935); Redisco, Inc. v. Laredo Mo. Pac. Employees Credit Union, 516 S.W.2d 197, 199 (Tex.Civ.App.1974). See also Valley Bank & Trust Co. v. Parthum, 48 Ariz. 87, 59 P.2d 335, 337 (1936) (where writ sufficiently stated that funds in the account of another actually belonged to the debtor).

We think the result reached here also has practical considerations. If the bank impounds an entireties account due to a garnishment seeking only the property of one of the tenants, it could be liable for wrongful dishonor. See Andree v. Equitable Trust Company, 46 Md.App. 688, 420 A.2d 1263, 1266 (1980). If the result we reached was different, in such a situation there could be liability for the bank, whatever it did. If it does not impound the funds it could be liable to the plaintiffs for all or a part of them, but if it does impound them and only property in the name of defendant is sought, it could be liable for wrongful dishonor.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.

       Although apparently well established in Missouri law and not challenged here, the author of this opinion questions the practicality of considering bank accounts as entireties property, particularly where one person alone can draw on the account. One of the tenants cannot sell entire-ties property and involuntary partition will not lie, but often one person can draw on and completely extinguish a "joint" bank account. The cases do not seem to turn on whether one or both can draw on the account. Apparently ‘by agreement ... the money can be paid to ... only one” and the account be held by entireties. See Leuzinger, supra, 396 S.W.2d at 580. If either one can draw on the account without the other this indicates to me that there was no intention to create a tenancy by the entirety. Whether defendant and his wife could individually draw upon the account in question or whether they were required to do so together is not in the record.


text:
    In re the MARRIAGE OF Sally Sue THOMPSON and Gerald Ronald Thompson. Sally Sue Thompson (Cooley), Petitioner-Appellant, and Gerald Ronald Thompson, Respondent.
    No. 13426.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 27, 1984.
    Rehearing Denied Dec. 19, 1984.

      John D. Beger, Price & Beger, Salem, for petitioner-appellant.
    Cynthia -0. MacPherson, Mountain Grove, for respondent.
   PER CURIAM.

The parties’ marriage was dissolved on February 8, 1982, and appellant-mother received custody of the child born of the marriage, James Dale Thompson, then twelve. Respondent-father received “reasonable visitation” with James. No child support was ordered. On September 9, 1982, respondent-father filed a motion to modify the dissolution decree, requesting custody of James. Appellant filed a motion to modify the decree, asking the court to order child support and to “enter specific orders concerning the times and dates of visitation of said child”. Following a hearing, principal custody of James was granted to the father, and the mother’s motion was denied. She appeals.

Certain general principles are applicable in our review. When custody has once been adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances sufficient to call for a change of custody is on the party seeking a change. In re Marriage of Britton, 574 S.W.2d 475, 476 (Mo.App.1978). Custody should be transferred only where the change of circumstances and conditions requires it for the welfare of the child. Id.

The change in circumstances must be such as to give definite promise that the custody change will substantially benefit the child. Schmidt v. Schmidt, 591 S.W.2d 260, 262 (Mo.App.1979).

The trial court determined that the changes which justified the transfer of custody were:

“1. Petitioner has moved and taken the minor child with her.
2. The minor child is now one and one-half (PA) years older.
3. Petitioner has interferred substantially with Respondent’s visitation privileges.”

The move was from Eminence to Mountain View, a distance of approximately 35 miles. The father contends that this move prevented him from seeing his son daily, and that the boy was hampered by being placed in a new school system and removed from his friends and boy scout troop. The father acknowledges that appellant has been a good mother.

When a much greater move outside the jurisdiction does not mandate change of custody, we do not see how this change would do so. See Hahn v. Hahn, 569 S.W.2d 775, 777 (Mo.App.1978). See also In re Marriage of Bard, 603 S.W.2d 108 (Mo.App.1980). The stability of his continuing to live with the same parent and not being a pawn in their disputes convinces us that the move was an insufficient reason for a change.

Nor do we think his being a year and one-half older is a sufficient basis for a change even combined with the move. Both were slight in the overall picture. That children have grown older in and of itself is not a sufficient change of condition to warrant a change of custody. Engler v. Engler, 455 S.W.2d 36, 41 (Mo.App.1970).

The dissolution decree granted respondent “reasonable visitation”. The “interference” with those rights occurred because appellant claimed that respondent had been intoxicated when he had brought their son back to her home and when he had come to take him from her premises. Thereafter, she refused to allow the boy to be taken from the property where she and her present husband lived. Respondent admitted he had been drinking on those occasions, but denied that he was intoxicated.

What is reasonable visitation is subject to such varied opinion and interpretation that it often has little meaning. There was no indication that appellant’s restrictions were made for any purpose other than the best interest of the child and if respondent did not like the conditions imposed he could have petitioned the court for more specific visitation or custody rights. We do not see this as any basis for a change in principal custody. Nor do the three reasons combined add up to the necessary change. They are so minor that they do not indicate that a transfer in custody is desirable.

The boy testified that he preferred to live with his father, but that does not justify the change. That the child wants to live with a certain parent is not a sufficient basis for the award of custody to that parent. Engler v. Engler, supra, 455 S.W.2d at 41. See also Comment, Removal And The Child’s Best Interests In Change of Custody Disputes. 47 Mo.L.Rev. 140 (1982). The modification of a custody order should not turn upon the temporary whims or desires of a child. J. v. E., 417 S.W.2d 199, 204 (Mo.App.1967).

If a child involved is of such suffi-. cient age to form and express an intelligent preference as to custody, he should be permitted to do so, and the court should consider that preference along with other facts and circumstances before it; but that preference should be followed only if the welfare and interest of the child, as determined by all of the evidence, are consistent with that preference. Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975).

In considering the wishes of the child it is important to ascertain and evaluate the basis for these wishes m order to place this element in its proper perspective in deciding what is in the best interest of the child. In re Marriage of Campbell, 599 S.W.2d 256, 258 (Mo.App.1980).

It is apparent that the father normally saw the boy under the best of circumstances when they went fishing, camping, or did other enjoyable things. The mother has been in the position of disciplining him and making the important decisions as to raising him. It is easy to see why he wants to live with his father.

Letting the child’s wishes be a determining factor encourages the parents to influence that preference and to file motions to modify which upset the parties’ relationship with the child and the child’s stability, even if the motions are unsuccessful. There may be a practical difficulty if a child, at an age when he is difficult to control, refuses to live with one parent, but that is not the present situation. If changes of custody are only made where absolutely required, then we reduce the reasons for the noncustodial parent to attempt to influence the child. Knowing that custody is rarely changed, the parent would be more inclined to encourage the child to make the best of his current environment. By allowing custody to turn upon the easily influenced whim of a child, we are not doing the child, the parents, or the judicial system any favor.

The evidence falls short of establishing that there are sufficient changed circumstances which show that the welfare of the child requires the change of custody. The evidence does not give definite promise that the father having custody will substantially benefit the child. As James is apparently now in his father’s custody and in school at Eminence, we are reluctant to create another change, but we are obligated to follow the law and set precedent for future cases.

The order granting custody to respondent-father is reversed and the cause is remanded to the trial court for further proceedings on appellant-mother s motion for modification.

All concur.