author: GEORGE M. FLANIGAN, Special Judge.

text:
    PRESBYTERY OF ELIJAH PARISH LOVEJOY by its representatives, the commission members named below, and Cortley Burroughs, Tracy Houston, Manley Mace, William T. Hancock, Richard D. Shewmaker and Lorna Wagner, and Presbytery of Elijah Parish Lovejoy, Inc., a Missouri pro forma decree corporation, Plaintiffs-Respondents, v. Paul JAEGGI, Paul Barker, Harold Bowerman, Robert Canfield, Ben Carter, George Devlin, William Dick, Karl Dolde, Jim Hydar, Terry Jones, George Lanz, Robert Parks, Frank Rail, Dan Smith, Darold Strand, Arthur Tapy, and Memorial Presbyterian Church of St. Louis, a Missouri pro forma decree corporation, Defendants-Appellants.
    No. 65853.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      Timothy Belz, Mark Belz, St. Louis, W. Jack Williamson, Greenville, Ala., for defendants-appellants.
    Richard D. Shewmaker, John B. Shew-maker, Clayton, for plaintiffs-respondents.
   GEORGE M. FLANIGAN, Special Judge.

The principal adversaries in this church property dispute are plaintiff Presbytery of Elijah Parish Lovejoy, a presbytery of the United Presbyterian Church in the United States of America, (“UPCUSA” or “the national church”), and defendant Memorial Presbyterian Church of St. Louis, a Missouri pro forma decree corporation, (“Memorial” or “the local church”). At issue are their respective rights to property which prior to this action was in the control of Memorial.

On July 21, 1980, at a duly called concurrent meeting of the congregation and corporation of Memorial, a resolution was adopted, by a vote of 153 to 0 with one abstention, to terminate “the voluntary association which has existed until now” between Memorial and the national church. Although some members of the congregation failed to vote, under church rules, local and national, “silent members, unless excused from voting, must be considered as acquiescing with the majority.”

The individual plaintiffs are members of a commission, appointed on April 25, 1981, and acting under the authority of the national church. The commission would assume control of the property in the event the action succeeded. The individual defendants are “ruling elder members of the session” of Memorial.

The trial court, sitting without a jury, found the issues in favor of the plaintiffs and ordered the defendants to deliver to the commission “all assets, funds and property, both real and personal, now under the management and control of [Memorial].” The judgment also required the defendants to deliver to plaintiffs possession of the church building located at 201 Skinker Blvd., St. Louis, Missouri, and to account to the commission for all assets previously disposed of “for purposes other than purposes of [Memorial] as a particular church of [the national church].”

Defendants appealed to the Missouri Court of Appeals, Eastern District, which reversed the judgment. The cause was then transferred to this Court which now determines the same as on original appeal. Rule 83.09.

The dispositive contention of Memorial is that the judgment should be reversed because (a) the trial court erred in holding that Hayes v. Manning, 263 Mo. 1, 172 S.W. 897 (1914), required deference to the decision of the national church with regard to the control of the disputed property, (b) the trial court erred in holding that Missouri law forbids the use of “the neutral principles of law approach” enunciated in Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979), for resolution of church property disputes, and (c) the latter approach, applied to the evidence, required a finding in favor of Memorial.

The trial court, in a memorandum accompanying its judgment, found that the form of organization of UPCUSA is hierarchical and that under Missouri law as expressed in Hayes, it, the trial court, was required to give deference to the decision of the highest tribunal within the national church. The trial court also indicated that if it were free to apply the neutral principles approach to the instant facts “it might reach a more equitable result ... this result would be to find in favor of [Memorial].”

This Court now adopts the “neutral principles of law” approach as the exclusive method for resolution of church property disputes. To the extent that Hayes is inconsistent with this holding, it should no longer be followed. Neither side claims that the neutral principles approach is inconsistent with any of the religious freedom provisions of the Constitution of Missouri, [art. I, § 5, § 6, and § 7], or with Missouri statutes [§ 352.010, et seq.] pertaining to religious associations. For the reasons which follow, this court finds that the record, viewed under the neutral principles approach, requires reversal of the trial court’s judgment.

In its brief Memorial takes the position that UPCUSA “is not a hierarchical denomination, in which power flows from the top down, but is rather a connectional or representative denomination, in which power flows from the bottom up, through an ascending scale of judicatories.” The brief of UPCUSA describes its government as “representative or republican.” Some of the cases discussed below hold, as did the trial court, that UPCUSA is hierarchical. Since the neutral principles approach “accommodate[s] all forms of religious organization and polity,” 443 U.S. at 603, 99 S.Ct. at 3025, this Court need not concern itself with any issue with regard to UPCUSA’s form of organization.

Jones involved a dispute over the ownership of church property following a schism in a local church affiliated with hierarchical church organization. The “question for decision”, said the Court, was “whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of ‘neutral principles of law,’ or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church.” 443 U.S. at 597, 99 S.Ct. at 3022.

The court pointed out that “the State” has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively. The court stated:

It is also clear, however, that ‘The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes.’ ... Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice.... As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.... Subject to these limitations, however, the First Amendment does not dictate that a State must follow a particular method of resolving church property disputes. Indeed, ‘a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.’

443 U.S. at 602, 99 S.Ct. at 3025.

The court then said that “at least in general outline,” the “neutral principles of law” approach is consistent with the foregoing principles. Id. The neutral principals approach was approved in Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970), where a state court settled a local church property dispute on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property. That approach, said the court in Maryland & Va. Churches, entailed “no inquiry into religious doctrine.” 396 U.S. at 368, 90 S.Ct. at 500.

In Jones the Court held that a State is “constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.” 443 U.S. at 604, 99 S.Ct. at 3026. The primary advantages of that approach, said the court, are “that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity.” Id. at 603, 99 S.Ct. at 3025. (Emphasis added.) The court also said:

The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general — flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate re-versionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.

Id.

Finally, the court held that a civil court, in examining a religious document pertinent to the dispute:

must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust [in favor of the general church]. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative eccelesiastical body.

Id. at 604, 99 S.Ct. at 3026.

The neutral principles approach, which the majority opinion in Jones discussed, permitted and at least tacitly advocated, is to be distinguished from what the majority termed the “rule of compulsory deference,” id. at 605, 99 S.Ct. at 3026, or what the minority termed, the “rule of adherence,” id. at 615, 99 S.Ct. at 3031. The primary source of the rule of deference is Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872), which was decided when the federal courts were still applying federal common law and before the religion clauses of the First Amendment were held applicable to the states. Although not a constitutional decision, the rule of deference set forth in Watson was said to be “founded in a broad and sound view of the relations of church and state under our system of laws.” Kedroffv. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). The minority opinion in Jones stated, “[T]he principles of general federal law announced in \_Watson\ are now regarded as rooted in the First Amendment and are applicable to the states through the Fourteenth Amendment.” 443 U.S. at 617 n. 4, 99 S.Ct. at 3032 n. 4.

Under the “rule of deference,” the use of which Jones still permits but no longer requires, the initial inquiry, in an intra-church dispute over church property, was “where within the religious association the rules of polity, accepted by its members before the schism, had placed ultimate authority over the use of church property.” 443 U.S. at 618-19, 99 S.Ct. at 3033-34. (Powell, J., dissenting). If the church government was congregational, in which authority over questions of church doctrine, practice, and administration rests entirely with the local congregation, the civil courts, in disputes concerning the polity of a congregational church, enforce “the authoritative resolution of the controversy within the local church itself.” Id. If the church government is hierarchical, the lower church being “an integral and subordinate part of a larger church,” and “under the authority of the general church,” the civil courts must give effect to the duly made decisions of the highest body within the hierarchy that has considered the dispute because the decisions of the local congregation are subject to review by the tribunals of the church hierarchy. Id.

In Jones the local congregation itself was divided, a situation which the majority addressed in a manner criticized by the dissenters. Even the dissenters, however, conceded, that the neutral principles rule suffices to settle disputes “between the central councils of a church organization and a unanimous local congregation.” 443 U.S. at 614, 99 S.Ct. at 3031. The case at bar is of the latter variety.

Although both sides to the instant action produced witnesses and introduced many documents, there is no significant factual dispute. Over the years both Memorial and the national church underwent changes of name and mergers. Since both treat their respective predecessors as if they were on the same legal footing as the instant entities, this court will so consider them.

The national church has a written constitution consisting of the Book of Confessions and the Book of Order. The Book of Order includes the Form of Government. The Form of Government permits “a particular church,” such as Memorial, to be organized only by the authority of “the Presbytery.” Each particular church has a “session” consisting of its pastor and “ruling elders,” the latter elected by the congregation from among its active members. A presbytery, such as one of the instant plaintiffs, consists of the ministers and at least one ruling elder delegate from each particular church within the geographic bounds of the presbytery. The session of a particular church chooses the ruling elder delegate from that church to presbytery.

The bodies with governing authority in the national church are called “judicatories.” In ascending order they are the session of the particular church, the presbytery, the synod, and the general assembly. A synod covers three or more presbyteries. The general assembly “is the highest judicatory [of the national church] and shall represent in one body all the particular churches thereof.” Delegates to the synods and the general assembly are elected by the presbyteries.

Memorial was established in 1864. In 1866 Memorial withdrew from the national church and did not reaffiliate with it until 1877. During the separation Memorial retained all of the church property. In 1922 Memorial, by written indenture, transferred its assets to a “memorial fund” to be used for the acquisition of land on which a new church building would be erected. In 1937 the trustees of the “memorial fund” executed a “declaration of trust” in which the trustees recited certain actions they had taken under the 1922 indenture, including the acquisition of the land and the erection of the building.

The 1937 document recited that “in order that there be no question as to the trustees fully carrying out the terms and conditions of the trust indenture it is requested that this reiteration of the conditions under which the trust fund was turned over to [Memorial] be recorded in the minutes of [Memorial] and that by resolution the board of trustees [of Memorial] again accept and reaffirm the conditions as herein stated.” The 1922 indenture which was incorporated into the 1937 declaration recited that the trustees, called the Memorial Fund Committee, “shall have the power to receive and hold any and all kinds of property, real, personal or mixed, whether received as gifts, bequests, devises, contributions, donations or otherwise, all said properties to be held by it as principal and in trust for the purpose of maintaining and supporting out of the next income thereof, said [Memorial] or its successors, or any church with which it may consolidate.”

In 1929 the General Council of the General Assembly of the national church proposed that its Constitution be amended to require that the charter or articles of incorporation of a local church declare “that its property is held in trust under the Constitution of and for [the national church].” This amendment was rejected.

In 1975 Memorial merged with Kingsland Presbyterian Church, a particular church affiliated with the national church. The articles of merger, adopted as the articles of incorporation of the merged association, recited that “the ecclesiastical affiliation” of the association “shall be with [UPCU-SA].” The articles contained no provision expressly creating a property interest in favor of UPCUSA.

Prior to May 1980 one of the permanent committees of the national church, at a meeting “occasioned by the decision of the Supreme Court of the United States announced on July 2, 1979 in the case of Jones v. Wolf" recommended the adoption of an amendment to the Form of Government. The amendment recited, in part, that:

all property held by or for a particular church, a Presbytery, a Synod, the General Assembly, or [the national church] whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of the particular church or of a more inclusive judicatory or retained for the production of income is held in trust nevertheless for the use and benefit of [the national church].

The amendment further recited that “whenever property of, or held for, a particular church ... ceases to be used by that church, as a particular church of [the national church], in accordance with this constitution, such property shall be held, used, applied, transferred or sold as provided by the Presbytery.” This amendment was adopted in May 1981.

On May 25, 1980, the congregation of Memorial unanimously adopted a resolution protesting the proposed amendment and transmitted it to the Presbytery and the General Assembly. On July 16, George Scotchmer, pastor of Memorial, notified the members of Memorial that a special “congregational and corporation meeting” would be held on July 21 to consider terminating Memorial’s “voluntary association” with the national church. On July 21 the Memorial congregational incorporation unanimously adopted the resolution terminating Memorial’s association with the national church. On July 30 Memorial notified the Presbytery of the July 21 proceedings. On September 10 the Presbytery notified Memorial that a commission would be appointed to “gather the facts” concerning Memorial’s resolution and to make recommendations to the Presbytery. Correspondence ensued between Memorial and the national church in which Memorial stated that its decision to terminate the association was “clear and final”.

On April 25, 1981, the commission, the individual plaintiffs, submitted a report to the Presbytery recommending that the Presbytery notify Memorial that it desired that Memorial “be not dissolved or destroyed,” that Memorial’s resolution of July 21, 1980, be declared null and void, that Memorial remain a particular church of the national church, and that Memorial be commanded by the Presbytery to “cease any attempts to give any effect to said purported termination and not to use any property ... for any purpose other than the use thereof for purposes of [Memorial] as a particular church of the [national church].” The report further recommended that litigation be brought against Memorial and that Memorial should be notified to show cause, at a meeting of the Presbytery on June 20, 1981, why a commission should not be appointed to assume control of the Memorial property. The notice was given.

After disaffiliation Memorial continued to function as a church. It retained the services of its pastor, hired a second pastor, held regular worship services, administered the various trust funds, and in general engaged in the same activities which it pursued prior to disaffiliation. Memorial amended its articles to delete the reference to affiliation with the national church.

On June 20, 1981, the Presbytery held a meeting which Memorial did not attend. Purportedly acting under § 41.15 of the Book of Order, the Presbytery found that the session of Memorial “is unable or unwilling to manage wisely the affairs of its church in that it has participated in the attempt to terminate the relationship of [Memorial] with [UPCUSA].” The Presbytery vested the commission “with full power of a session ... which shall take the place of the existing session of [Memorial], which shall cease to act until such time as the Presbytery shall otherwise direct....” This litigation ensued.

In the wake of Jones, property disputes have arisen in other states between a disaffiliating local church, such as Memorial, and the national church, UPCUSA, which is the largest of the Presbyterian denominations in the United States. Courts of last resort in Iowa and Maryland have found in favor of the national church, Fonken v. Community Church of Kamrar, 339 N.W.2d 810 (Iowa 1983); Babcock Memorial v. Presbytery of Baltimore, 296 Md. 573, 464 A.2d 1008 (1983), while those of New York and South Dakota have found in favor of the local church, First Presbyterian v. United Presbyterian, 62 N.Y.2d 110, 476 N.Y.S.2d 86, 464 N.E.2d 454 (1984); Foss v. Dykstra, 342 N.W.2d 220 (S.D.1983). Some of these cases dealt with specific sections of the Book of Order. These sections, and others relied upon by UPCUSA in the instant appeal, are set forth below.

In Fonken, a 6 to 3 decision, the Iowa court affirmed the finding of the trial court that title to the local church property was subject to an implied trust in favor of the national church. The local congregation, by a vote of 192 to 96, had voted to dissolve affiliation with UPCUSA. The majority opinion reviewed the evidence under both the rule of deference and the neutral principles approach.

Under the rule of deference the majority held that the decision of the highest authority of a hierarchical church was conclusive upon the civil courts with respect to church property disputes and that UPCUSA is “plainly” a hierarchical organization. The court said that the local church’s “right” to leave UPCUSA did not include the “right to take church property with them”. The articles of incorporation of the local church stated that the latter’s purpose was “to operate and maintain a Presbyterian church, affiliated with [UPCUSA].” The court held that the local congregation could not defeat property rights of UPCUSA, if they existed, by merely voting to disaffiliate and restating the local church’s articles of incorporation.

Utilizing the neutral principles approach, the majority opinion made the assumption that title to the property was in the local church and held that the decisive issue was whether the Book of Order established an implied trust in favor of UPCUSA. The court held that the provisions of the Book of Order, construed together, gave UPCU-SA “exclusive ultimate control of the use and disposition of local church property” and that “an implied trust exists as a result of UPCUSA’s polity giving it determinative authority over the property of its subordinate churches.”

The dissenters in Fonken agreed that UPCUSA would prevail under the rule of deference. The dissenters felt, however, that the dispute should be resolved under the neutral principles approach and that application of the latter would uphold the local church. The dissenters said that the only provision in the Book of Order which “remotely approaches language of trust” is § 62.11 which UPCUSA had conceded did not apply to the dispute under scrutiny.

In Babcock the local church, by a vote of 228 to 6, voted to withdraw from the national church and the session of the local church made, by deed, “an absolute and irrevocable gift” of real estate to a new corporation which was “an unaffiliated Presbyterian church.” The by-laws of the local church recognized its affiliation with UPCUSA and recited that the by-laws were subordinate to the Constitution of UPCU-SA. The Maryland court pointed out that under § 62.12 of the Book of Order a local church could not sell or mortgage its real estate without written permission of the Presbytery. The court held that if the local church could not sell property without the Presbytery’s permission, it could not give it away. At p. 1017 the court said: “More importantly, however, applying neutral principles of law, the church corporation lacked power under Maryland corporation law to make the gift.” (Emphasis added).

In First Presbyterian the New York Court of Appeals held that although UP-CUSA is a hierarchical organization, the local church, upon disaffiliation by a congregation vote of 334 to 4, was entitled to a resolution of the property dispute through application of the neutral principles approach.

Title to the land was held by the local church under deeds which did not include “language of trust or restriction vesting a present or future interest in the Albany Presbytery or the UPCUSA.” The charter of the local church was “silent on the question of how the property is to be owned,” and there was nothing in the New York Religious Corporations Law which affected the issue.

The court then considered the Book of Order. In examining it, said the court, it must “look only to provisions relating to property and it must interpret them in a secular light.” The court found no provision in the Book of Order which created an express trust in favor of UPCUSA. The court discussed several sections of the Book of Order, including §§ 41.07, 41.08, 41.15, and 62.11, and found that none of them contained language sufficient to show an intention to establish an implied trust in favor of the national church. The court found “nothing in the Book of Order to support [the national church’s] position.”

In Foss the South Dakota court, using the neutral principles approach, found in favor of the local church. The court discussed §§ 41.07, 41.15, 62.11 and 62.12 of the Book of Order and held that they do not contain language creating a trust, express or implied, in favor of the national church. Referring to those four sections the court said, at pp. 224-25: “Although these provisions may limit a local church’s use of the property while it is a member of the denomination, the language does not go far enough to constitute trust or reversion-ary terms such as the Supreme Court was seeking in [Jones v. Wolf].”

The court also stated that UPCUSA’s adoption of the express trust amendment in 1981, after the local church had disaffiliated, “provides additional support to our conclusion that the Book of Order as it existed on [the date of disaffiliation] did not contain provisions creating a trust of local property.”

In applying the neutral principles approach to the instant record, this court in conformity with Jones must refrain from resolving the dispute on the basis of “religious doctrine and practice” and must rely “exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges.” Documents, including religious documents, pertinent to the dispute, must be scrutinized in purely secular terms. This court must not “rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust” in favor of the national church. If the deed, local church charter, or national church constitution “incorporates religious concepts in the provisions relating to the ownership of property” and if the interpretation of those instruments would require the resolution of a religious controversy, then this court “must defer to the resolution of the doctrinal issues by the authoritative ecclesiastical body.”

No provision in Memorial’s charter or by-laws is relied upon by the national church to establish its property interest. The deeds to the involved land name Memorial as grantee and make no mention of the national church. With one exception, various trust funds, including those established for building purposes, make no mention of the national church. One fund did mention the national church but not as a beneficiary.

The national church does not claim that any Missouri statute serves to create a trust in its favor with respect to the property in dispute. Control of the property has always been exercised by Memorial without interference by the national church. The national church contributed nothing to the acquisition of any of the disputed property. From time to time Memorial borrowed money and secured the loans with deeds of trust on the real estate. The national church was not mentioned in the documents effectuating those transactions.

In 1936 the local church was given $580 by the national church and the indenture reflecting that gift recited that if the local church ceased to be connected with the national church the amount of the grant was to be repaid with interest. The national church was given a security interest only in the land, defeasible upon repayment of the debt. This interest was inconsistent with a claim of right to control all property upon disaffiliation.

In order for the national church to prevail under the neutral principles approach on the instant record it must do so on the basis of the Book of Order. It will be recalled that in 1929 there was an unsuccessful attempt to amend the Book of Order so as to require a local church to provide in its articles of incorporation that its property was held in trust for the national church. It was not until May 1981, after Memorial’s disaffiliation, that such an amendment was adopted.

None of the sections of the Book of Order set forth in footnote 3 contains any language expressly creating a trust in church property in favor of the national church.

Although § 35.01 sets forth, in general terms, that a larger part of the church should determine matters of controversy “which arise therein,” and mentions the carrying of appeals to “higher judicatories,” it makes no specific reference to a property dispute between the national church and a local church which has disaffiliated. The action taken by the Presbytery on June 20, 1981, after disaffiliation, was purportedly based on § 41.15 which contains no language, even when construed with §§ 41.07 and 41.08, sufficient to show the existence of a trust in favor of the national church with respect to the property of Memorial or a revisionary interest therein.

The Presbytery made no effort to invoke § 42.08 with regard to dissolution of the local church and indeed disclaims such intent. Thus the dissolution provisions of § 62.11 do not come into play. Other situations are contemplated by § 62.11 but they are not present here. Memorial has not become “extinct by reason of the dispersal of its members,” nor has Memorial abandoned it, that is Memorial’s work. Although disaffiliated, Memorial carries on the same religious activities which it practiced prior to the separation.

Although § 62.12 gives the Presbytery supervisory authority over specified real estate transactions of a particular church, that section, too, is silent with regard to any reversionary or trust interest of the national church with respect to the property of a local church which has disaffiliated.

This court agrees with the holdings in First Presbyterian and Foss that the Book of Order, as it existed on July 21, 1980, did not create an express or implied trust in favor of UPCUSA with respect to the property of Memorial.

The judgment is reversed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN, BILLINGS and BLACK-MAR, JJ., concur.

DONNELLY, J., not sitting.

      . All references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S.

      . In Beaver-Butler Presbytery v. Middlesex Pres. Ch., 80 Pa.Cmwlth. 211, 471 A.2d 1271 (1984), the Commonwealth Court of Pennsylvania found in favor of UPCUSA in a dispute concerning the right to control property of a local church which had voted, 125 to 31, to disaffiliate. The three-judge appellate court held that UPCUSA had a hierarchical form of government and that a Pennsylvania statute, enacted in 1935, required the court to "accept the Presbytery’s decision [in favor of UPCUSA] as final and binding.” The court pointed out that even under the neutral principles approach the statute would have to be considered and would be controlling. The Commonwealth Court, after opinion, granted a "petition for allowance of appeal.” Id.

      . Section 34.01 of the Book of Order reads: "A particular church consists of a number of professing Christians, with their children, voluntarily associated together for divine worship and godly living, agreeably to the Holy Scriptures, and submitting to a certain form of government.”
      Section 34.02 provides that a particular church can be organized only by the authority of a presbytery.
      Section 35.01 reads: “The radical (i.e. fundamental and basic) principles of Presbyterian Church government and discipline are: That the several different congregations of believers, taken collectively, constitute one Church of Christ, called emphatically the Church; that a larger part of the Church, or a representation of it, should govern a smaller, or determine matters of controversy which arise therein; that, in like manner, a representation of the whole should govern and determine in regard to every part, and to all the parts united; that is, that a majority shall govern; and consequently that appeals may be carried from lower to higher judicatories, till they be finally decided by the collected wisdom and united voice of the whole Church. For these principles and this procedure, the example of the apostles and the practice of the primitive Church are considered as authority.”
      Section 41.07 gives the session of a particular church "exclusive authority over the use to which the church buildings and properties may be put.”
      Section 41.08 gives the session “authority over all of the affairs and activities of the particular church, except such matters as may, by this Form of Government, be specifically accorded to the pastor, to the congregation, or to a higher judicatory."
      Section 41.15 reads: “Whenever, after a thorough investigation, and after full opportunity to be heard has been accorded to the session in question, the presbytery of jurisdiction shall determine that the session of a particular church is unable or unwilling to manage wisely the affairs of its church, the presbytery may appoint a commission composed of ministers and ruling elders, with the full power of a session. This commission shall take the place of the existing session, if any, which shall cease to act until such time as the presbytery shall otherwise direct.”
      Section 42.08 gives the presbytery power to dissolve churches.
      Section 62.04 requires a local church to incorporate, if local law permits, "to receive, hold, encumber, manage, and transfer property, and to facilitate the management of its civil affairs in such manner as may be directed by the session of the particular church from time to time and according to this Constitution.”
      Section 62.11 reads: "Whenever hereafter a particular church is formally dissolves by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have, both real and personal, shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the United Presbyterian Church in the United States of America.”
      Section 62.12 forbids a particular church to do any of the following acts without the written permission of the presbytery: (a) sell, mortgage, or otherwise encumber any of its real property; (b) acquire real property subject to an encumbrance or condition; (c) lease its real property used for purposes of worship; and (d) lease for more than five years any of its other real property.


source: Caselaw Access Project

author: HIGGINS, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Brent Dee CALVERT, Appellant.
    No. 66049.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      Kenneth J. Berra, Richmond, for appellant.

      Farrell D. Hockemeier, Sp. Pros. Atty., Richmond, for respondent.
   HIGGINS, Judge.

A jury convicted defendant Brent Dee Calvert of driving while intoxicated, section 577.010, RSMo 1978, and speeding, section 304.010, RSMo 1978. His punishment was fixed at fines of $500 and $100; judgment was rendered accordingly. A majority of the Court of Appeals, Western District, affirmed; the dissenters transferred the case to this Court, citing conflict with existing case law and the general interest and importance of the issue raised. The questions for decision, upon which the court of appeals divided, are whether the State established the scientific reliability of the radar speed device in question when operated in a moving mode, and the accuracy of the device when it recorded the speed of defendant’s vehicle. Other questions are raised by charges that the trial court erred in admitting breathalyzer test results because the State failed to cooperate with discovery as required by section 577.020(4), RSMo 1978; in permitting the arresting officer to give his opinion of the speed of defendant’s vehicle; and in refusing a proffered converse instruction. Affirmed.

On September 27, 1981, Sergeant Harvey Oberweather of the Missouri State Highway Patrol was patrolling a 55 miles per hour speed zone on Highway 13 north of Henrietta, Missouri, when defendant approached in his vehicle from the opposite direction. The sergeant was in an unmarked patrol car equipped with a Speed Gun Eight radar unit, a device designed to record the speed of traffic. The Speed Gun Eight, functional in both a stationary and moving mode, was switched to the moving mode. Sergeant Oberweather formed an opinion, based on observation, that the approaching car was traveling faster than 65 or 70 miles per hour; the Speed Gun Eight recorded the speed at 74 miles per hour. He testified to both his opinion and the radar reading. The sergeant changed direction and gave chase. Defendant stopped his vehicle in the middle of the highway. Defendant’s appearance, demeanor, and the odor of alcohol on his breath, led the officer to conclude that defendant was intoxicated. Defendant admitted drinking but denied he was intoxicated or had been speeding. A breathalyzer test administered at the Ray County Jail showed defendant had .15 of one percent alcohol in his blood. Sergeant Oberweather arrested defendant for exceeding the speed limit and for operating a motor vehicle while intoxicated.

Appellant argues that the State failed to lay a proper foundation for admission of the radar speed gun reading of the speed of his vehicle. He challenges the admissibility of the 74 miles per hour recording because there was no expert testimony that the unit could accurately measure the speed of a moving oncoming vehicle when the unit is in a patrol vehicle moving in the opposite direction.

Sergeant Oberweather, a 15-year veteran of the Highway Patrol whose experience includes some 5,000 speeding arrests, described his formal training and practical experience with the Speed Gun Eight. James Smith, a Highway Patrol communications specialist, described his training as an expert and experience with radar speed guns; his qualifications went unchallenged. Their testimony showed that the Speed Gun Eight operates on the Doppler theory, and they described its implementation in the enforcement of speed limits by the use of radar. Smith explained:

“[The radar] sends out a high frequency radio beam down the highway and if it strikes a moving object the beam will be bounced back to the radar at a higher pitch. Say the beam struck a car doing 70 miles per hour, the outgoing signal would come back at 2200 cycles higher in pitch, and the radar has a calibrator that divides that to miles per hour and displays on the screen, and the beam strikes the pavement from the patrol car which gives the speed of the highway patrol car and the moving radar substraéis (sic) the ground speed on the oncoming traffic and reads out, it displays. One display gives the ground speed of the patrol car and the other the oncoming traffic.”

Oberweather testified that the Speed Gun Eight is capable of functioning in a stationary or moving mode, and in the latter, “when we are driving down the highway it will give us our speed as well as the oncoming vehicle....”

Courts first judicially noticed the Doppler principle for use in speed detection in 1955, and the scientific reliability of radar speed devices based on the Doppler principle has been recognized in Missouri since 1959. State v. Graham, 322 S.W.2d 188 (Mo.App.1959). Other courts and commentators have accepted as reliable moving radar devices that operate on the Doppler principle. Village of Pemberville v. Dietrich, 7 Ohio Misc.2d 48, 455 N.E.2d 727 (Mun.Ct.1983); State v. Primm, 4 Kan. App.2d 314, 606 P.2d 112 (1980); State v. Wojtkowiak, 170 N.J.Super. 44, 405 A.2d 477 (Law Div.1979), rev’d on other grounds, 174 N.J.Super. 460, 416 A.2d 975 (App.Div.1980); People v. Donohoo, 54 Ill.App.3d 375, 12 Ill.Dec. 49, 369 N.E.2d 546 (1977); Note, Radar Speed Detection: Homing in on New Evidentiary Problems, 48 Fordham L.Rev. 1138 (1980). Contra People v. Conlon, 109 Misc.2d 729, 440 N.Y.S.2d 831 (Dist.Ct.1981). The Western District earlier upheld a speeding conviction based on a speed reading registered by a Speedgun Six, the predecessor of the unit used here. State v. Hunziker, 638 S.W.2d 793 (Mo.App.1982). See Wojtkowiak, supra, 405 A.2d at 487 (affirming speeding conviction based on moving radar reading); Donohoo, supra, 369 N.E.2d at 548-549 (same); State v. Shelt, 46 Ohio App.2d 115, 75 Ohio Op.2d 103, 346 N.E.2d 345 (1976) (same). See also State v. Hanson, 85 Wis.2d 233, 270 N.W.2d 212 (1978) (courts in future cases may take judicial notice of reliability of moving radar device).

Under these authorities this record provides sufficient proof of the scientific reliability of the Speed Gun Eight to constitute a prima facie case for admission of its speed reading; there was no conflicting expert testimony.

Appellant also contends the State failed to prove the accuracy of the particular unit used. The proponent of radar evidence must prove the unit was operating accurately at the time of its use relative to the violation to sustain a speeding conviction. Graham, supra, at 196-197; Annot., 47 A.L.R.3d 822 (1973).

Sergeant Oberweather stated that the State Highway Patrol periodically checks the speed gun and returns the unit with a certification of accuracy if it is in proper working order; the Highway Patrol last certified this particular unit on June 16, 1981. Before using this unit in detection of defendant’s speed, Sergeant Ober-weather performed three different tests to check the accuracy of this radar unit. At the beginning and end of each shift, he tests the unit for accuracy in both modes with tuning forks calibrated to produce speed readings of 30 miles per hour and 70 miles per hour. There was testimony from James Smith to show the accuracy and proper functioning of the tuning forks employed. In addition, the sergeant testified that he utilizes the internal calibration within the unit to check its accuracy. The third test consists of checking the radar unit display against the certified speedometer of his patrol car. The sergeant conducted each of the above tests on the day of the arrest. The evidence does not show the results of the tuning fork tests.

Appellant would support his contention by citing City of Jackson v. Langford, 648 S.W.2d 927 (Mo.App.1983). In Langford there was no evidence of the time and place of testing, and the officer used only the two tuning forks to test the accuracy of the radar gun. Here, however, Sergeant Ober-weather testified that he shuts off the unit if it fails to display the correct readings when tested with the tuning forks; and permissible inferences from his entire testimony are that the unit registered correctly in response to each check for accuracy, and that the radar speed gun registered accurately when tested. See City of St. Louis v. Boecker, 370 S.W.2d 731, 734 (Mo.App.1963). Appellant’s objection to the admissibility of the radar evidence relates not to the results of the testing procedures but to the time and location of testing. Appellant cites Boecker, supra, and State v. Weatherwax, 635 S.W.2d 34 (Mo.App.1982), which condition the admissibility of radar evidence upon a showing that the arresting officer tested the radar unit at the site and near the time of the arrest. Both Weather-wax and Boecker involved the use of stationary radar, a distinction made by the Western Division majority.

In following Boecker, supra, decided 20 years ago, the court in Weatherwax recognized that the earlier decision required the site test to reduce the possibility that outside factors produced an inaccurate speed reading. 635 S.W.2d at 35. In the instant case, the arresting officer acknowledged the possibility of spurious readings and estimated their occurrence at not more than one-half of one percent. External interference, in the form of bridges or power lines, may affect the functioning of the unit. A distorted reading may also result from internal interference, such as the patrol car heater, air conditioner or radio. Smith testified that any distortion produced by power lines consists of transitory, “flash” readings, which the stronger signal from a target vehicle overrides. Oberweather testified that he never experienced external interference in the area where he arrested defendant. He further testified that the radar gun produces a reading if pointed directly at the heater or air conditioner in the patrol car; the gun was affixed to the dashboard of the patrol vehicle, facing forward, and not capable of being directed toward the heater or air conditioner unless removed. Both Smith and the officer stated that the police radio, if it affects the radar unit, blanks out the display screen. Smith testified that an officer’s training alerts him to potential sources of interference, most of which cause an obviously false reading. The arresting officer testified that he was trained to determine the accuracy of the radar unit prior to its operation, and could recognize and correct for spurious readings.

Significantly, Sergeant Oberweather periodically compared the radar readings with his calibrated speedometer. This check decreases the likelihood that the unit will compute the target vehicle speed on the basis of an inaccurate estimate of patrol car speed. See Hanson, supra, 270 N.W.2d at 218; Note, Radar Speed Detection, supra, at 1161. This is not a case that raises the problem of identification of the target vehicle from amongst heavy traffic, nor is it a case where the difference between the cited speed and the legal speed limit is slight. The defense introduced no evidence that casts doubt on the inference, following from this testimony and the evidence of other tests performed, that the moving radar unit was functioning accurately at the time of defendant’s arrest.

The foregoing testimony provided a sufficient foundation for the admission of the results of the radar speed gun evidence. The record in this case alleviates the concern that without the site test prescribed in Boecker, supra, “a radar unit could be set up in any location whether or not there were outside factors which would give an incorrect reading, and the prosecution would have no burden to show that the radar unit was operating properly at the site of the arrest.” Weatherwax, supra, at 35. If a site test was clearly feasible with a moving radar unit, see id. at 38 (opinion of Pritchard, P.J., dissenting), the controlling principle of the earlier decisions was the requirement that the State prove the operational accuracy of the radar unit at the time of use. The State met this requirement.

Appellant also charges that the trial court erred in admitting breathalyzer test results. He claims that the State’s failure to comply with section 577.020(4), RSMo 1978, regarding discovery barred admission of the test results. The statute provides, “Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test shall be made available to him.”

The State filed the information against defendant in the Magistrate Division of the Circuit Court of Ray County on October 21, 1981. On December 3, 1981, defendant filed three discovery motions, one of which cited section 577.020(4) and sought detailed information about the breathalyzer machine and related documents. The State made no response of record to any of the discovery requests; the case proceeded to trial before the associate circuit judge and a judgment of conviction followed.

Defendant sought and obtained a trial de novo before the circuit court. The case came on for trial on February 16, 1982, on an amended information filed that date. On the same day, prior to jury selection, defendant submitted a motion in limine in which he sought to suppress use of the breathalyzer test results based on the failure of the State to respond to the section 577.020 discovery request. The court overruled the motion, and it is this ruling now challenged.

Appellant does not claim that any particular evidence not disclosed by the State but presented at trial was material to his conviction or that any nondisclosure resulted in fundamental unfairness. Rather, he argues the statute imposes a precondition on the use of breathalyzer test results and a failure by the state to comply fully with the request by the accused for information concerning the test bars use of the evidence. Appellant cites State v. Paul, 437 S.W.2d 98 (Mo.App.1969), to support his argument.

Although Paul, supra, at 101, held that a failure to comply with section 564.441(4), RSMo 1959, predecessor of the current section 577.020(4), prevented the State from introducing evidence of the breathalyzer test, examination of the circumstances there presented supports a distinction between the cases. In Paul, supra, the defendant had written to the St. Louis Police Department in advance of trial seeking information about the test and the request had been refused on advice of a city prosecutor. Here, no request for information concerning the breathalyzer test was outstanding and unanswered when trial commenced in the circuit court on February 16, 1982.

The motion in question was a discovery motion subject to Rule 25.04. Rule 25.04 requires the motion to be filed in the court having jurisdiction to try the case, which must then take action specifying the material to be produced and the time and manner of disclosure. The motion was ineffective in the de novo trial in the circuit court; it was not renewed after trial before the associate judge, and thus was not presented to the court now having jurisdiction to try the case. See State v. Charity, 637 S.W.2d 319 (Mo.App.1982). The defendant there presented a discovery motion to the associate circuit court division, but was subsequently bound over for trial in the circuit court. In denying a claim of error charged to failure of the State to comply with the discovery request, the court held that no motion was outstanding because it was not presented to the court having jurisdiction to try the case. The court stated that neither the filing of a request in the associate division, nor of the transcript in the circuit court, constituted sufficient compliance with the discovery rules. Id. at 323.

Notwithstanding appellant’s efforts to distinguish Charity, supra, a felony case, on the ground that felony discovery cannot begin on the associate level, the record shows that defendant’s only requests for discovery were made at the associate circuit level, and he relied solely on the original and unanswered discovery motion throughout these proceedings. Despite ample time to do so, there is no record of any objection by defendant to the conduct of the trial before the associate judge before his discovery motion had been ruled, nor is there any indication that he ever secured a determination of his motion by the - associate circuit judge, and in the circuit court proceedings, there is no indication that defendant made any effort to reassert a demand for the material. When he moved the circuit judge to suppress the evidence, he did not seek production by court order of the data and documents contended to be relevant to the breathalyzer test. On this record, the trial court did not err in overruling defendant’s motion in li-mine and overruling his objection to the introduction of evidence obtained with the breathalyzer.

On the charge that the testimony of the arresting officer regarding the speed of appellant’s vehicle was inadmissible, it is sufficient to recognize that opinion testimony on the speed of a vehicle from an experienced officer is admissible in a traffic case. State v. Barker, 490 S.W.2d 263 (Mo.App.1973); Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.1969); Missey v. Kwan, 595 S.W.2d 460 (Mo.App.1980), cited by appellant, provides no support for his argument to the contrary. Missey was a personal injury action arising from an automobile collision, and the court held the opinion testimony inadmissible because the officer testified as to the speed of the vehicles upon impact, based not on his observation but on the condition of the vehicles after impact and the statements of the parties. Id. at 462-463. The testimony of the officer in this case corroborated the evidence of the radar speed gun and so was harmless error at most. City of Kansas City v. Tennill, 630 S.W.2d 173, 175 (Mo.App.1982).

The State’s verdict-directing instruction stated:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on September 27,1981, at or near M-13, 2.0 miles south of M-10, in the County of Ray, State of Missouri, the defendant operated a motor vehicle, and
Second, that he did so in excess of the speed limit of 55 miles per hour,
then you will find the defendant guilty under Count II of exceeding the speed limit.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Defendant’s proffered converse instruction stated:

If you do not find and believe from the evidence beyond a reasonable doubt that on September 27, 1981, at or near Highway M-13, 2.0 miles south of Missouri State Highway M-10, in the County of Ray, State of Missouri, the defendant operated a motor vehicle at a rate of 74 MPH in a 55 MPH Zone, you must find the defendant not guilty under Count II.

The “unless you so find” clause in the State’s instruction does not in itself preclude a properly tendered converse instruction, State v. Smith, 485 S.W.2d 461 (Mo.App.1972), yet a defendant who seeks to include a converse must draft and submit a proper one. State v. Orr, 493 S.W.2d 374, 376 (Mo.App.1973). Where, as here, the proffered converse is incorrect, the trial court may properly refuse defendant’s instruction. State v. Drake, 512 S.W.2d 166 (Mo.App.1974). In the absence of the offer of an accurate converse, the State’s instruction in the form used here is sufficient. State v. Caldwell, 423 S.W.2d 738 (Mo.1968); Drake, supra, at 173.

The judgment is affirmed.

All concur.


author: KAROHL, Judge.

text:
    STATE of Missouri ex rel. MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. George KROEGER et al., on the Exceptions of Mary Kovacevich and Joseph Kovacevich, Defendants-Appellants.
    No. 44147.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 26, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Morton K. Lange, Cuba, for defendants-appellants.
    Bruce A. Ring, Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

This opinion has been written on reassignment.

Condemnee-property owners appeal judgment following jury verdict awarding $22,-000 for a partial taking of real estate for highway construction along Interstate Route 44 in Franklin County. Appellants withdrew the Commission’s award of $50,-000 and were ordered by the judgment to repay $28,000 to respondent plus interest from the date of withdrawal.

It is not disputed that the petition described a partial taking of an easement for right-of-way across .14 acres. The beginning point of the legal description was pleaded to be 140 feet north of station 415 + 60 on the center line of Interstate Route 44. See appendix diagram. This point was also described to be on the existing northwest right-of-way line of Route 66. In addition to the legal description appearing in Paragraph 31.10 of the petition the following appears in Paragraph 5:

Said detailed plans show the actual survey and, among other things, the location of said highway through the lands herein affected ... The description of the lands of defendants being condemned were taken from said survey, map and detail plans and are intended to describe the parcel of defendants’ lands and only such parcels or rights as are shown on said map, survey and detail plans, and for a more accurate and perfect description of said parcels of land and the rights over them, or interests sought to be acquired, reference is hereby made to said map, survey and detailed plans now on file with said circuit clerk, and which is adopted by reference as an exhibit and made a part of this petition.

The petition description governed during the first stage of the condemnation proceeding including the order of condemnation, the Commissioner’s assessment of damages, the pay-in and the withdrawal of funds. However, after the jury was selected and after opening statements of both parties it became clear that there was a dispute as to what property was being condemned.

The plaintiff-respondent Missouri State .Highway and Transportation Commission (Commission) believed the partial taking was .14 acres as described in the petition. The appellant property owners believed it was .49 of an acre that was being taken. The difference may be explained by reference to a 1944 deed by which the state acquired property from appellants’ predecessor in title, Blume. Both parties agree that the 1944 deed may be read so as to locate the highway center line of Highway 66 (now Interstate Route 44) some distance south of where it is shown on the Commission’s plans. If so read the northern line of the right-of-way is south of the line shown on the highway plans by the same distance. The Commission does not agree that it should be read in that manner. It is not necessary that we decide that dispute as the parties and the trial court, outside of the presence of the jury, made an effort to resolve the conflict before hearing evidence of damages. Suffice it to say that the court ruled that the appellant property owners’ position was correct, that the taking was .49 acres. As a result the evidence of damages presented by both parties included the .14 acres described in the pleadings and .35 acres immediately adjacent on the south for a total of .49 acres.

Only the Commission objected to the trial court’s ruling that the taking was for .49 acres. The hearing on damages, based on the ruling favorable to appellant property owners, was in regard to the entire .49 acres. The evidence of damage ranged from $9,000 to $104,000. The jury awarded $22,000. Only the property owners have appealed the verdict and judgment.

On appeal the property owners contend, for the first time, that the defective legal description in the unamended petition is a jurisdictional defect, that the defect is fatal and that the judgment is a nullity.

This proceeding was instituted in October, 1969. No request was ever made of the court to amend the legal description. This condemnation proceeding was controlled by Chapter 523 of the Revised Statutes of Missouri 1969. The petition must contain a description of the real estate to be acquired. § 523.010. Presuming regularity of the proceedings, three commissioners were appointed to assess damages on the described real estate. A copy of the Commission’s report was made, filed and recorded. § 523.040. Exceptions were filed by both parties, § 523.050.1, and both referenced the petition paragraphs describing the .14 acres. Before the trial none of the proceedings on the measure of damages involved the .35 acres south of the described .14 acres. The taking and therefore the damages were sustained prior to trial when the $50,000 the commissioners awarded was paid into court for the owner. J.B. Millhouse v. Drainage District No. 48 of Dunklin County, 304 S.W.2d 54, 60 (Mo.App.1957). On that date the pleadings indicated the land to be taken was .14 acres.

Appellant’s attack on the trial court’s subject matter jurisdiction is twofold. The first is that the condemnation proceeding must be strictly construed and every statutory requirement (description of the land taken being one such requirement) must be complied with, and if this has not been done, the proceedings are void, Sassman v. State Highway Commission, 45 S.W.2d 1093, 1095 (Mo.App.1932). Appellant maintains that “after the report of the commissioners has been filed, amendments to include different or additional lands, substantially changing the issues or prejudicing rights of opposing parties, will usually be denied.” State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 592 (Mo.1968). Second, and more generally, since subject matter jurisdiction goes to the very heart of the court’s power to act” ... [w]hen the court lacks subject matter jurisdiction, any action it takes is null and void.” Parmer v. Bean, 636 S.W.2d 691, 694-695 (Mo.App.1982) (Workmens’ Compensation); State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 72 (Mo. banc 1982) (Declaratory Judgment).

Subject matter jurisdiction may be raised at any time, Rule 55.27(g)(3), may not be waived, and may not be conferred by consent of the parties or by estoppel. State Tax Commission, 641 S.W.2d at 72.

The Commission maintains that the circuit court of Franklin County had general subject matter jurisdiction of the cause of action, the condemnation of land in Franklin County. We agree and distinguish cases holding that the court does not and could not have subject matter jurisdiction. Such cases include: actions to quiet title where the proceeding must be brought in the county in which the land is situated, Crawford v. Amusement Syndicate Co., 37 S.W.2d 581 (Mo.1931); a suit to cancel a deed of trust affecting real estate located in another county, Howell v. Reynolds, 249 S.W.2d 381, 383 (Mo.1952); and, attempted common law personal injury claims brought on facts cognizable under the Workmen’s Compensation Law, § 287.120 RSMo 1978, Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App.1982). In these eases, the court is without subject matter jurisdiction because there is no provision in law for it to entertain the proceeding brought. In such cases all the legal principles above stated as to subject matter jurisdiction apply. They may be summarized to hold that the parties cannot create subject matter jurisdiction that does not exist. However, in the present case, the condemnation proceeding was cognizable before the trial court. The circuit court of Franklin County was the proper court to entertain condemnation of Franklin County land. Hence these legal principles do not control.

We also find that by consent a legal description in a condemnation case can be considered amended so as to confer subject matter jurisdiction over the property to be taken, providing that different or additional land is included in the actual adjudication at the second stage of the proceeding where only the extent of damages is at issue and where the property owner makes no objection. Such amendment to conform with proof will apply, however, only where there is no resulting prejudice and where the resulting amendment is strictly in accord with the proofs offered by both parties. Rule 55.54; see State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 592 (Mo.1968). Stallings reversed an order permitting a correction of an erroneous legal description after judgment. The court held that there was no authority permitting such amendment on request of one party after the proceeding had been concluded. No exceptions were filed by either party and there was no stage two damages trial. The court specifically noted that, “[t]his is not a case of amending to conform to the proof because there is no proof. S.Ct. Rule 55.54.” Id. at 592. We find in the present case that the parties both tried the same damages issue, the taking of .49 acres, and that appellant property owner has had a full and fair trial on the issues. No objection was raised until after the jury verdict. As there was no showing of prejudice the points on appeal relating to appellant property owners’ contention of void judgment for lack of subject matter jurisdiction are denied.

We also consider appellants’ preserved contention that the verdict must be set aside as a quotient verdict. A sheet of paper was found in the jury room containing twelve numbers, ranging from thirteen to fifty-one. When added together the numbers total two hundred and sixty-four. If two hundred and sixty-four be divided by twelve the total is precisely the amount of the jury verdict, $22,000. The verdict was the verdict of all twelve jurors. The numbers are said to be in the handwriting of the foreman who signed the verdict and the figures of $22,000 on the sheet of paper and the verdict form are similar.

“The law in Missouri respecting quotient verdicts is well settled. It has been held that a verdict arrived at by a prearranged agreement among the jurors to be bound by the result of the average of the individual estimates of the jurors, amounts to misconduct on the part of the jury.” Jones v. Midwest Pre Cote Co., 412 S.W.2d 468, 471 (Mo.1967) (emphasis added).

However, it is the well-established and settled rule in this state that to establish a verdict as a quotient verdict it must be shown that there was a pre-arranged agreement among the jurors to accept the unknown and unascertained quotient as their verdict, and the presumption is that there was no such prearrangement among the jurors, (citations omitted). It is also well settled that if the jurors have not found themselves beforehand to accept the unascertained quotient as their verdict, but after the quotient is ascertained it is then adopted as their verdict, the fact that they used that method of reaching an agreement will not invalidate their verdict, (citations omitted), (emphasis added).

Jones at 471.

The note standing alone is not sufficient to overcome the presumption as it is equally possible that the calculations were made before any agreement on the verdict as it is that an agreement was made before the calculations. The former is not prohibited by the rule. The sheet of paper in itself does not prove jury misconduct.

We affirm.

STEPHAN, P.J., and SATZ, J., concur.

APPENDIX

      . A temporary construction easement and a drainage ditch easement are incidental to this appeal.

      . For some unexplained reason the appendix diagram taken from a trial exhibit shows the .14 to be .15 acres.

      . The extensive evidence would make it possible to argue and locate at least four different locations for the center line. This would allow four different locations for the northern right-of-way line before the taking.


author: BERREY, Judge.

text:
    P.L.K., Respondent, v. R.J.K., Appellant.
    No. WD 35743.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.

      John H. Lake, Jefferson City, for appellant.
    William ■ L. Orr, Columbia, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   BERREY, Judge.

R.J.K. appeals from the decree dissolving his marriage with P.L.K. assigning as error the award of maintenance for an indefinite period, the amount of the maintenance award, and the distribution of the marital property. Judgment affirmed.

After twenty years of marriage, P.L.K. filed a petition for dissolution in August, 1983, apparently because R.J.K. admitted that he was having a relationship with another woman. The parties have two children, a son J.K. age twenty at the time of the dissolution, and a son D.K. age eleven at the time of the dissolution. J.K. is a student at the University of Missouri.

R.J.K. is employed as editor-in-chief of a sports publication. His annual salary for 1984 is $68,000.00. The policy of the publication is to award annual bonuses to its employees on the basis of merit and the success of the publication. RJ.K.’s bonus for 1983 was $16,000.00. He estimated that his bonus for 1984 would be at least $15,000.00. His monthly income after taxes is approximately $3,500.00. R.J.K. has had a career spanning more than twenty years as a sports writer for several publications. He was employed for eleven years with a St. Louis publication. When he left that publication in 1979 to assume his present employment his annual salary was $30,000.00.

P.L.K. is a licensed real estate agent. In 1983, her first year of practice as a part-time agent, she earned approximately $6,000.00. Now P.L.K. no longer wants to work as a real estate agent. During her marriage, she was employed in a variety of jobs. She was briefly employed with a radio station, a television station, as a county supervisor, and raising livestock on the family farm.

P.L.K. now wants to finish her undergraduate degree and to attend law school. She testified at the dissolution hearing that she is very intelligent, with an IQ of 147, and is highly motivated to prepare herself for a career that will be “meaningful” to her. She has made no attempt since her separation from R.J.K. to pursue her career as a real estate agent or to seek any other employment. She was thirty-nine years of age at the time of the dissolution and she testified at the hearing that she is healthy and has no disabilities.

At the dissolution hearing the appellant testified that he had a $100,000 life insurance policy on his life with L.M., his girlfriend, as beneficiary. He also testified that L.M. was living with him in the Pacific, Missouri, house, apparently before the house was set off to P.L.K., and that he took her to lunch at least weekly and to hotels and motels where they engaged in extramarital sex.

Appellant admitted to frequent drinking but denied a problem. He acknowledged he passed out occasionally. During their twenty-year marriage he stated he passed out about twenty times. Respondent testified that R.J.K. drank every night the past few years and passed out almost every night. Appellant admitted hitting respondent on two occasions. He accused her of having a “violent temper, especially when she drinks.”

Following the revelation about his girlfriend, respondent testified she was “totally broken hearted” and a bitter fight ensued. Appellant abused the respondent and gave her two black eyes. He took her to her parents in Columbia, Missouri. Twice he administered beatings, the evening of the 19th of August and the next morning. She was examined at a local hospital where a counselor advised her she was a “battered woman.” She was also advised by members of the staff and a doctor not to return to St. Louis, “that once a husband started beating a woman, that there was nothing that would stop him from doing it again and in all likelihood it would reoccur.” She had “bruises all over” and lots of marks around her neck. The latter was inflicted the next morning. Respondent awoke in bed with appellant and was thoroughly repulsed. She got up and then he came and stood nude in front of her. She reached out toward his testicles and said, “How could you have touched her with those? That’s where my children came from.” Appellant then grabbed her around the neck and started beating her head against the floor. “He just banged my head and banged it against the floor and I said something about wanting to die. I felt like I was going to right then.”

Respondent testified R.J.K. had blackened her eye during a previous altercation, and on one or two occasions when he had been drinking at home that “My nineteen year old son had to pull him off me because he was hitting at me because he wanted to go get in the truck and he was in no condition to drive.”

Appellant complained respondent disparaged his job and was a constant complainer. Whereas respondent complained that in addition to the foregoing appellant would pick fights and would not eat what was prepared for him. That despite respondent’s thyroid surgery and a hiatal hernia, “he was not very concerned .... ” It was during this time that “he was involved with this girl.”

He acknowledged that she had never been unfaithful to him, that she took good care of and raised their children, that she kept records for his softball team and went to corporate functions. She stated that she was a homemaker, cooked, cleaned, cared for the children, had a big garden and raised beef on occasion.

The circuit court entered a decree dissolving the marriage and awarding custody of the children and child support to P.L.K. It also awarded P.L.K. maintenance in the amount of $2,000.00 per month until the house in Pacific, Missouri, was sold, and $1,700.00 per month afterward. P.L.K. was awarded the Pacific real estate, an automobile, and various personal items. R.J.K. was awarded the farm in Alhambra, Illinois, a pickup truck, and some personal items.

On appeal, R.J.K. argues that the trial court erred by awarding maintenance for an indefinite period and by awarding an excessive amount of maintenance and marital property to P.L.K. This court must affirm the decree of the circuit court unless the decree has no substantial evidence to support it, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Miller v. Miller, 635 S.W.2d 350, 352 (Mo.App.1982). The lower court is vested with considerable discretion in awarding maintenance and dividing marital property. Miller v. Miller, supra, at 352. This court may set aside its decree only if we firmly believe that it is wrong. Murphy v. Carrón, supra, at 32; Miller v. Miller, supra, at 352.

Although P.L.K. says she is motivated to complete law school and begin a career as an attorney, any attempt by the lower court to set a time limit within which she must achieve these goals would have been merely speculative. Maintenance awards of limited duration should not be based on speculation about the future circumstances of the parties. Turner v. Turner, 650 S.W.2d 662, 664 (Mo.App.1983). The circuit courts should make awards of limited duration only if they have evidence before them of an impending change in the financial condition of either of the parties. Id. See also In re Marriage of Powers, 527 S.W.2d 949, 955 (Mo.App.1975). The amount of time P.L.K. will need to complete her education is sufficiently uncertain that the trial court did not abuse its discretion by refusing to limit the duration of the maintenance award. In re Marriage of Powers, at 955. R.J.K.’s recourse is to institute a proceeding to modify the award when P.L.K.’s circumstances change. Id., at 956.

RJ.K.’s second argument is that the amount of the maintenance award was excessive. The factors the circuit court must consider in determining whether to award maintenance are enumerated in § 452.335, RSMo 1978. The circuit court made no explicit findings with respect to these factors. In the absence of a specific request by counsel, the factors need not be the subject of findings of fact or conclusions of law. Broyles v. Broyles, 555 S.W.2d 696, 698 (Mo.App.1977). When no such request is made, all fact issues must be considered found in accord with the result reached by the circuit court. Rule 73.01(a)(2). Analysis of the circumstances of the parties in light of the factors listed in § 452.335 supports the amount of the award.

With respect to P.L.K.’s financial circumstances and her ability to meet her needs independently, the evidence demonstrates that while she is attending school she has only a limited ability to support herself. P.L.K. sold the Pacific, Missouri, property. The proceeds from the property should help defray her housing expenses, but she will also have to pay tuition and other expenses. The court could have found from the evidence that while she is a full-time student she is unable to contribute to her own support.

The second factor to be considered is how long P.L.K. needs to acquire sufficient education to enable her to find appropriate employment. This period should not be extended. P.L.K. testified that she plans to attend law school because she wants to establish a career for herself. The evidence supports the conclusion that she will be able to complete her education in a reasonable amount of time, such as four years, and that she will need a substantial amount of maintenance to meet her needs during this period. Third, the statute requires the circuit courts to consider the standard of living enjoyed by the parties during the marriage. The parties had a modest income until about 1979. After that year, R.J.K.’s success in his profession afforded them a better standard of living. They moved to a larger house in an affluent neighborhood. Fourth, the parties were married for twenty years, and P.L.K. only worked outside the home for a few of those years. The evidence regarding these factors supports the maintenance award, which is necessary while P.L.K. is continuing her education to provide the standard of living to which she had become accustomed in the last few years of her marriage.

The fifth factor the court was required to consider is P.L.K.’s age and physical and emotional health. She testified that she is healthy and highly motivated to provide for herself. This factor weighs heavily against ordering substantial maintenance for an indefinite period. But it is not unreasonable for R.J.K. to contribute to her support for the period while she continues her education. The sixth factor the court was obliged to consider is the ability of the party who has been ordered to pay maintenance to meet the needs of both parties. R.J.K. is presently able to contribute to P.L.K.’s support. The evidence shows that his income for 1984 is expected to be more than $83,000.00. The maintenance award of $1,700.00 per month provides P.L.K. with an annual income of $20,400.00. There was evidence to indicate that R.J.K. will have sufficient funds to meet his own needs.

The final factor that the court must consider is the conduct of the parties during the marriage. P.L.K.’s conduct, according to the testimony at the dissolution hearing, was exemplary. The trial court could have found that R.J.K.’s misconduct supported a substantial award. This court finds that the circuit court did not abuse its discretion by awarding P.L.K. maintenance of $1,700.00 per month.

For his third point on appeal, R.J.K. disputes the award of the Pacific, Missouri, property to P.L.K. P.L.K. sold the Pacific property while this appeal was pending. R.J.K. claims he should receive some of the proceeds from the sale because the Pacific house was the couple’s principal asset.

The trial court is vested with considerable discretion under § 452.330, RSMo Supp.1984 to divide the marital property as it deems just. Our review is governed by the framework set forth above, from Murphy v. Carron, supra. This court is limited on appeal to the determination whether the trial court abused its discretion by ordering the marital property to be divided as it did. In re Marriage of Powers, supra, at 951.

R.J.K. argues that the property award to P.L.K. was excessive. The net proceeds from the Pacific house, $24,-239.46, when added to the other items, makes the total value of the property awarded to P.L.K. $35,339.46. The value of the property awarded to R.J.K., estimating that his equity in the Alhambra property is $6,000.00, was $17,026.00. The court was permitted to consider the amount of the maintenance award and the income-producing ability of the parties together with the property division. Section 452.330, RSMo 1978. In light of the evidence regarding the disparity in their present income potential and P.L.K.’s need to provide a home for their children, the award of the Pacific property to her was not an abuse of discretion by the trial court.

The final issue in this case is P.L.K.’s request that her attorney’s fees be assessed against R.J.K. for pursuing a frivolous appeal. Rule 84.19 permits the appellate court to award damages against the appellant if it determines that the appeal is frivolous. A frivolous appeal is one which presents no justicable question and is so devoid of merit that there is little prospect that it can succeed. Andrews v. Andrews, 673 S.W.2d 495, 500 (Mo.App.1984). R.J. K.’s contentions on appeal are that the maintenance award should be limited in duration and that the amount of maintenance and marital property awarded to P.L.K. was excessive. The trial court is given considerable discretion to divide the property and award maintenance as it deems just. But the propriety of the award in this case was fairly debatable. In Andrews, the husband appealed requesting that this court set aside the auction sale of the marital assets. This court noted in that case that the appeal patently presented no cause upon which the husband could conceivably obtain relief. Id., at 500. The husband, by appealing, had abused the judicial process to express his antagonism toward his wife. By contrast, R.J.K.’s appeal presents two issues that arguably merit discussion. The court declines to award damages against him for P.L.K.’s attorney’s fees.

The dissolution decree is affirmed.

All concur.

      . Curiously, the impact of federal income taxes has not been raised or briefed by either party. A review of the applicable sections of the 1984 Internal Revenue Code reveals the significant impact that taxes have in effectively reducing the amounts paid by the husband under this particular maintenance award. Interested attorneys should not overlook this important issue.


author: PER CURIAM.

text:
    CARONDELET SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellant, Cross-Respondent, v. Roy T. BOYER and Boyer Building Company, Inc., Defendants-Respondents, Cross-Appellants.
    Nos. 45991, 45994.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Robert C. Jones, Andrew R. Kasnetz, Clayton, for plaintiff-appellant.
    David M. Duree, St Louis, for defendants-respondents.
   ORDER

PER CURIAM.

Plaintiff, Carondelet Savings & Loan Association, filed a five count lawsuit arising out of a defaulted loan against defendants, Roy Boyer, Tom and Sandra Venezia, and George and Josephine Caputa. Caronde-let’s case was submitted against defendant Boyer only and resulted in a judgment for Boyer as defendant from which plaintiff has appealed. Defendant Boyer filed a cross-claim against Tom Venezia for forging Boyer’s signature on a partial deed of release. Judgment was in Boyer’s favor against Venezia and he received a total of $45,000 in actual and punitive damages. Venezia did not appeal. Defendants, Boyer and Boyer Building Company also filed counterclaims against plaintiff Carondelet Savings & Loan, alleging plaintiff knew of Venezia’s forgery and thereby wrongfully disbursed funds. A verdict and judgment on the counterclaims was entered in favor of Boyer and Boyer Building Company but no damages were awarded from which Boyer and Boyer Building Company could have appealed. The issues involve the admission of evidence and conduct of counsel in oral argument. A written opinion in this case would have no precedential value. The judgment is affirmed by order pursuant to Rule 84.16(b).


author: PUDLOWSKI, Presiding Judge.

text:
    Willie MORRIS, Plaintiff-Appellant, v. CHRISTIAN HOSPITAL, Defendant-Respondent.
    No. 47273.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Willie Morris, pro se.
    Kemper R. Coffelt, Clayton, for defendant-respondent.
   PUDLOWSKI, Presiding Judge.

Plaintiff appeals from the court’s order denying his motion to vacate a judgment entered in favor of defendant.

Plaintiff, proceeding pro se, filed his initial petition against defendant on March 29, 1981 for personal injuries alleged to have occurred May 12,1978. Thereafter on May 15, 1981, the petition was dismissed without prejudice. On May 28, 1982, plaintiff filed his second petition. On June 23,1982, defendant filed its motion to dismiss alleging inter alia that plaintiff’s second petition was filed beyond the one year statutory period allowed in Section 516.230 RSMo 1978. On July 16, 1982, the court entered the following order:

Defendant’s Motion to Dismiss called. Plaintiff fails to appear, the Court being advised of defendant’s attempt to serve Plaintiff, at his address, with Notice of Hearing by way of certified mail, which according to the return submitted by the postal authorities, Plaintiff refused to accept after receiving the Notice from the postal authorities on 6/24/82 & 6/29/82_ Defendant’s motion to dismiss is hereby sustained, Plaintiff’s petition is dismissed with prejudice at plaintiff’s cost.

Over nine months later, on April 26, 1983, plaintiff, still proceeding pro se, filed a motion to vacate the order of dismissal for want of service and filed a motion for default judgment. Plaintiff set the motions for hearing on April 29, 1983. On April 29, 1983, plaintiff failed to appear in support of his own motions. Defendant appeared and both motions were denied. Plaintiff subsequently filed a notice of appeal.

Defendant has filed a motion to dismiss the appeal. It contends judgment in this case was entered on July 16, 1982 when plaintiff’s second petition was dismissed. Inasmuch as the motions filed in April 1983 were untimely to be considered as motions for a new trial, pursuant to Rule 78, the judgment became final on August 15,1982. Because a notice of appeal was not filed within ten days thereof, it asserts we must dismiss the appeal.

However, we believe that plaintiff’s motion, filed in April, 1983 which in part asserts that the order of July 16, 1982 should be set aside because plaintiff was not properly served with notice of the hearing on defendant’s motion to dismiss can be considered as a motion under Rule 74.32 to set aside the judgment for an irregularity patent on the face of the record. Walsh v. Walsh, 652 S.W.2d 274, 275 (Mo.App.1983). Plaintiff has the right to have the denial of that motion reviewed on appeal. Walsh, Id.

Having resolved that we have jurisdiction, we turn to the merits of plaintiff’s appeal. Only point two relates to the ruling of the trial court of April 1983 and that is the only one we shall address. He contends that service of defendant’s motion to dismiss was improper and untimely and therefore the court erred in denying his motion to vacate. We find no merit to this contention for two reasons. First, from the record before us it appears that plaintiff had proper and timely notice of defendant’s motion to dismiss and the hearing thereon. The record establishes that plaintiff refused service by certified mail on at least two occasions on June 24 and June 29, 1982. Mailing is a proper method to notify a pro se litigant of notice of a hearing. Rule 43.01(c)(2). See Zurheide-Hermann, Inc. v. London Square Development Corp., 504 S.W.2d 161, 165 (Mo.1973). It is complete upon mailing and is not dependent upon the party receiving it. It was mailed more than eight days in advance of the hearing date as required by Rule 44.01(d) and (e) and was therefore timely.

Second, a period of nearly ten months elapsed from the time of the court’s dismissal of plaintiff’s petition in July 1982 until April 1983 during which there appears nothing of record establishing any inquiry into the status of the case by plaintiff. Recently this court in Walsh v. Walsh, 652 S.W.2d 274 (Mo.App.1983) reaffirmed that a pro se litigant has a duty to look after the course of the proceedings in which he is involved. The court held that the lapse of ten months between the court action and any inquiry by the pro se litigant constituted sufficient grounds to affirm the trial court’s denial of a Rule 74.32 motion.

Affirmed.

GAERTNER and KAROHL, JJ., concur.


text:
    Verna J. HUBER, Plaintiff-Respondent, v. Howard J. HUBER, Defendant-Appellant.
    No. 47996.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.

      Kennard B. Woods, Chesterfield, for defendant-appellant.
    Love, Lacks, McMahon & Paule, St. Louis, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a Dissolution of Marriage proceeding. Howard J. Huber appeals the distribution of marital property, the awarding of insurance policies to his wife Verna, the denial of maintenance and the award of attorney fees. We affirm.

The parties were married on August 18, 1945. Five children, all emancipated, were born of the marriage. At the time of the dissolution hearing, appellant was not employed. He had last been employed as a machinist in 1981. Appellant suffers from diabetes, a heart problem, a bad back and leg problems. He is receiving social security disability benefits of five hundred fifty-one dollars per month and VA disability benefits of sixty-two dollars per month. He sought maintenance.

Respondent, as of the hearing, was suffering from degenerative arthritis in the left knee, high blood pressure and was receiving medical advice for nerves. She was employed by Southern Comfort earning a net income of approximately one thousand sixteen dollars a month. She did not seek maintenance.

Additional evidence adduced that appellant had been friends with another woman since 1940. In 1951 or 1952, appellant fathered a child by her. On the date of the child’s birth, he informed his wife about the relationship. When the parties separated, appellant moved to Illinois and stayed at a boarding house operated by the woman’s aunt. He was served with summons and the petition for dissolution at the residence of the woman, although he denied ever having lived with her. .

Appellant’s first point alleges abuse of trial court discretion in dividing the marital property so that respondent received approximately sixty three percent of the property and he received only thirty seven percent.

Section 452.330 only requires a just and equitable division of marital property. Moreover, the circuit court is vested with broad discretion in determining how and in what manner the property and debts should be divided. Metts v. Metts, 625 S.W.2d 896 (Mo.App.1981). We will not reverse absent a clear showing of abuse of discretion.

Marital misconduct is one of the express statutory factors to be considered by the trial court in its division of marital property. Section 452.330.4. Reviewing the evidence in accord with the trial court’s ruling, the evidence showed that appellant fathered a child out of wedlock while respondent was six month’s pregnant. Even though appellant denied having had sexual relations with the woman subsequent to 1952, the circuit court was not required to believe or accept his testimony. This is particularly true in light of appellant’s response to respondent’s interrogatories. Appellant admitted giving incorrect answers concerning his previous affair. Further, this was not appellant’s only change of testimony before the court. On December 9, 1982, the date of separation, appellant moved into a boarding house owned by the woman’s aunt. He testified that he paid forty dollars a week for this room. However, appellant’s income and expense statement, previously filed under oath, only showed a cost of eighty dollars per month. Lastly, appellant was served by the sheriff at the other woman’s residence.

In any case, the circuit court reasonably could have found and concluded that wife was entitled to a disproportionate share of the marital property. Respondent had substantially contributed to its acquisition through employment in addition to her services as a mother and homemaker. Under the totality of the circumstances, the court’s division of marital property and allocation of the debts does not constitute an abuse of discretion. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Appellant’s second point contends the trial court erred in awarding respondent the life insurance policies on his life because respondent no longer has an insurable interest. Appellant argues this award violates public policy and constitutes a wagering contract in violation of § 377.080 RSMo 1978.

It has long been held that it does not violate the law or public policy for one to procure an insurance policy on his own life and assign it to another who has no insurable interest so long as the transaction is not a cover for a wagering policy. Lakin v. Postal Life and Casualty Insurance Co., 316 S.W.2d 542 (Mo.1958). Butterworth v. Mississippi Valley Trust Co., 240 S.W.2d 676 (Mo.1951). In the case at bar, all of the policies awarded to respondent were acquired during the marriage. The policy premiums were paid as a result of the joint efforts of the parties, including respondent’s employment. None of the policies were obtained as a cover to hide a wagering contract. The trial court did not err in awarding respondent the life insurance policies on appellant’s life.

Appellant next appeals the denial of maintenance. The trial court has broad discretion in the award of maintenance. In Re Marriage of White, 601 S.W.2d 644 (Mo.App.1980). The evidence presented at the hearing showed respondent earned approximately one thousand dollars per month. Appellant earned six hundred dollars per month. Additionally, his disability had been reduced from one hundred percent disabled to ten percent disabled. We find no abuse in the court’s denial of maintenance.

Lastly, appellant complains of error in the award of attorney’s fees to respondent. Appellant’s sole source of income was his social security and veteran’s benefits. These benefits enable appellant to meet his usual monthly obligations. Respondent, on the other hand, remains employed. Upon complete analysis of the parties’ relative means, we find the trial court’s award of attorney’s fees was erroneous. The award of attorney’s fees is reversed and vacated.

Judgment affirmed in part and reversed in part.

GAERTNER and KAROHL, JJ., concur.


text:
    Stanley GARDOCKI, Eugene Gardocki, and Dorothy Marie Begaman, Appellants, v. Walter S. GARDOCKI, Jr., Respondent.
    No. 48074.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 4, 1984.
    Gail N. Gaus, Clayton, for appellants.
    Walter L. Brady, St. Louis, for respondent.
   ORDER

PER CURIAM.

The trial court entered judgment for respondent on appellants’ petition for cancellation of a deed conveying real estate from their mother to respondent because of his undue influence and for an accounting, partition and imposition of a constructive trust on the real estate. The judgment is supported by substantial evidence and is not against the weight of the evidence and no error of law appears. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). An extended opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Calvin ARCHIBALD, Appellant.
    No. 48103.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.

      William J. Shaw, Thomas Carter, II, Clayton, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Calvin Archibald guilty of an armed grocery store robbery. The trial court fixed his punishment as a prior felon at 15 years in prison.

Here defendant claims the trial court erroneously denied his motion to suppress the identification testimony of three eye witnesses; this on the ground their trial court identifications had been tainted by suggestive police procedures.

The state’s evidence: Defendant lingered in the store for several minutes and then with a partially concealed weapon threatened the cashier; he demanded and got money from her two cash registers. A store clerk saw defendant within three feet. As defendant left the store a third witness saw him and remembered he was a high school classmate. A policeman took her home and got a high school yearbook. On two pages were photographs of defendant and five other male students. From this the three witnesses separately identified defendant’s photo as that of the robber.

Defendant now challenges the eye witnesses’ testimony concerning identifications, first by the yearbook photos, second by seeing defendant in both a police line-up photo and later in a live line-up, and third by the in-court identification. Defendant here argues these identifications were unduly suggestive. The record refutes these contentions. It shows each of the three witnesses independently and separate from each other made the now challenged identifications.

In State v. Littleton, 649 S.W.2d 225[1, 2] (Mo. banc 1983) the victim could not identify defendant at the time of the offense but did so at the preliminary hearing and at trial. In denying defendant’s challenge the court ruled:

“Even if an out-of-court identification procedure is deemed suggestive, it does not invalidate a reliable in-court identification based on a recollection independent of the pretrial identification.”

In State v. Montgomery, 588 S.W.2d 80[3] (Mo.App.1979) we held:

“The keystone to admissibility is that the victim and the witnesses were able to identify defendant in and out of court under manifestly reliable circumstances.”

To the same effect see State v. Patterson, 598 S.W.2d 483[6] (Mo.App.1980).

We deny defendant’s challenge to his identification.

Affirmed.

DOWD, P.J., and CRIST and CRAN-DALL, JJ., concur.