author: WILHOIT, Judge.

text:
    BOARD OF EDUCATION OF CALLOWAY COUNTY, Kentucky, Appellant, v. INDEPENDENT BOARD OF EDUCATION OF MURRAY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 4, 1984.
    Rehearing Denied June 29, 1984.
    Discretionary Review Denied by Supreme Court Jan. 9, 1985.

      Ben B. Fowler, Stites & Harbison, Frankfort, Donald A. Jones, Murray, for appellant.
    William Donald Overbey, Overbey & Ov-erbey, Murray, for appellee.
    Before REYNOLDS and WILHOIT, JJ., and B.R. PAXTON, Special Judge .

       Special Judge Paxton, a former Judge of this Court, sits by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Constitution of the Commonwealth.

   WILHOIT, Judge.

This appeal arises from a judgment of the Calloway Circuit Court declaring that the appellee, the Independent Board of Education of Murray, has the statutory right to levy and receive all utility gross receipts taxes generated within its own district without any claim by the appellant, the Board of Education of Calloway County. The issue is whether KRS 160.593 and 160.-644 allow the appellee to act as a separate taxing district if it had previously joined with another school district in levying the taxes on a county-wide basis. We affirm.

In 1969, the appellant and the appellee agreed to jointly request the Calloway County Fiscal Court to levy a utility tax pursuant to KRS 160.613 and 160.593. Beginning on August 15, 1969, the tax was collected from each affected utility and distributed to each school district on the basis of average daily attendance pursuant to KRS 160.644. The parties continued to tax jointly and to have the tax distributed on the basis of average daily attendance until May 1982, when the appellee wrote a letter to all interested utilities demanding each to pay the tax directly to it.

The appellee apparently took this action in response to the appellant’s attempt, in August 1981, to modify the parties’ exchange of average daily attendance credit for the nonresident students attending the other’s school district. Instead of allowing the appellee all the Public School Foundation Program monies available for the students in the appellant’s district who attended the appellee’s schools, the appellant wanted the appellee to return one-half of the funds to it.

In response to the appellee’s letter, the appellant petitioned the Calloway Circuit Court for a declaration of rights. Several utility companies intervened for the purpose of paying the proceeds into court. The court held that by virtue of a 1976 amendment to KRS 160.593 the appellee has the right to declare itself to be a separate taxing district for the levying of the utility tax and to collect the proceeds for use in that district.

The appellant contends the appellee cannot become a separate taxing district because it had joined with the appellant prior to 1974 to levy taxes on a county-wide basis. The appellant maintains that the 1974 amendments to KRS 160.593 and 160.-644 made it mandatory that those districts that had previously combined to collect taxes on a county-wide basis continue to do so jointly. The appellant argues further that the 1976 amendment to KRS 160.593 deleting the mandatory language had no effect on this requirement because no change was made in KRS 160.644. We disagree.

The issue before us arises out of a set of often-amended statutes. To ascertain the rights of the parties, it is helpful to trace at least a part of the statutory history regarding the utility gross receipts tax for school districts. In 1966, the General Assembly enacted into law provisions codified as KRS 160.593, 160.613, and 160.644. See 1966 Ky.Acts ch. 24, pt. Ill, §§ 1, 9, & 21. KRS 160.593, which is of primary importance in resolving the issue before us, as enacted in 1966, read as follows:

One or more boards of education of school districts which contain at least ninety per cent (90%) of the county’s inhabitants may, after compliance with the public hearing requirement contained in KRS 160.603, request the fiscal court to levy one of the school taxes authorized by KRS 160.593 to 160.597, 160.601 to 160.627, 160.633 to 160.648. The fiscal court shall levy, within fifteen (15) days of such request, the school tax at the rate requested.

KRS 160.644, as enacted in 1966, read:

The school taxes and penalties collected under KRS 160.593 to 160.597,160.601 to 160.627, 160.633 to 160.648 shall be distributed to the treasurer of the board of education of each school district in the county in proportion to the number of pupils in average daily attendance in each district as shown by the final certification by the superintendent of public instruction for the previous school year pursuant to provisions of KRS 157.310 to 157.440.

Together these statutes allowed only the county-wide collection of taxes with the monies distributed among the county’s schools on the basis of average daily attendance. The school district, then, with the most students received the largest share of the tax money regardless of whether that district had the largest population of taxpayers. In 1974, however, these statutes were amended. See 1974 Ky.Acts ch. 125, §§ 1 & 4; ch. 308, § 35.

KRS 160.593 (emphasis added), as amended in 1974, read:

(1) Any board of education of a school district may, after compliance with the public hearing requirement contained in KRS 160.603, request the fiscal court to levy one (1) of the school taxes authorized by KRS 160.593 to 160.597, 160.601 to 160.633, 160.635 to 160.648. The fiscal court shall levy, within fifteen (15) days of such request, the school tax at the rate requested and the levy shall take effect not less than thirty (30) days nor more than ninety (90) days after the passage of the order or resolution. The imposition of any tax levied under the provisions of KRS 160.593 to 160.597, 160.601 to 160.633, and 160.635 to 160.-648 shall be limited to the territory of the school district or districts requesting the levy. In those counties where one (1) of the taxes referred to by this section is in effect county-wide on June 21, 1974, the taxes shall continue to be levied on a county-wide basis. Revenue produced by such taxes shall be distributed on the basis of average daily attendance, as set forth in KRS 160.644, to those districts levying such taxes.
(2) Two or more boards of education within a county may make a joint request for the tax to be levied in their respective districts.

KRS 160.644 (emphasis added) was amended to read:

The school taxes and penalties collected under KRS 160.593 to 160.597,160.601 to 160.633, 160.635 to 160.648 shall be distributed to the treasurer of the board of education of the school district. In the event that more than one board of education within the county is participating in one of these tax levies, the funds collected shall be distributed in proportion to the tax rate levied and the number of pupils in average daily attend- anee in the participating districts as shown by the final certification by the Superintendent of Public Instruction for the previous school year pursuant to the provisions of KRS 157.310 to 157.-m

These amendments allowed the levying of utility taxes on a district-by-district basis rather than the county-wide levy required previously. Those counties, however, which had previously levied the taxes on a county-wide basis were required to continue their combined activities. Moreover, individual districts were also permitted to join together to levy the taxes. The amendment to KRS 160.644 provided that in this latter instance and when the districts had previously joined together, the tax monies were to be distributed in proportion to the district’s average daily attendance.

In 1976, KRS 160.598 was further amended. See 1976 Ky.Acts ch. 127, § 8. Taken out of subsection (1) was any reference to the situation where taxes had been levied county-wide and the requirement that such taxes continue to be levied on a county-wide basis. Subsection (1) (emphasis added) now reads:

Any board of education of a school district may, after compliance with the public hearing requirement contained in KRS 160.603, levy one (1) of the school taxes authorized by KRS 160.593 to 160.597, 160.601 to 160.633, 160.635 to 160.648. The imposition of any tax levied under the provisions of KRS 160.593 to 160.-597, 160.601 to 160.633 and 160.635 to 160.648 shall be limited to the territory of the school district except as provided in subsection (2) of this section.

KRS 160.644 has not been further amended.

As presently worded, KRS 160.593 and 160.644 clearly do not prohibit an individual school district from unilaterally levying a utility tax on the territory within its school district. Moreover, the Legislature obviously intended this practice to be the rule rather than the exception. A school district may, however, join with other districts to levy the tax and share the monies in direct proportion to their average daily attendance. Likewise, nothing in these statutes literally precludes a school district that had agreed with another district or districts to levy taxes from rescinding that agreement and levying the taxes unilaterally. The only basis for the appellant’s argument that the appellee cannot cease its combined levy of the tax and the tax individually is the legislative history discussed above.

The appellant argues that the history is important because the 1974 amendments of KRS 160.644 and 160.593 mandate in identical terms that districts participating in the tax prior to 1974 continue their combined participation. It maintains that the deletion of this language, then, in the 1976 amendment of KRS 160.593 would not affect the Legislature’s intention to have those school districts which had previously collected taxes on a county-wide basis to continue to do so. The problem, of course, is that the words “[i]n the event that more than one board of education within the county is participating in one of these tax levies, the funds collected shall be distributed in proportion to the rate levied and the number of pupils in average daily attendance” cannot be fairly read to say “[i]n those counties where one (1) of the taxes referred to by this section is in effect county-wide on June 21, 1974, the taxes shall continue to be levied on a county-wide basis.” Moreover, reading KRS 160.644 in the context of the other statutes governing the collection and distribution of the utility tax, the 1974 amendment simply provided, and continues to provide, the methodology for the distribution of the monies collected. If, as obviously preferred by the 1976 Legislature, the tax is levied by an individual school district, all the money goes to that school board. If the tax is levied by multiple districts in combination, the money is distributed proportionately. This alternative methodology was necessitated by the 1974 amendment of KRS 160.593 regardless of that statute’s language requiring school districts acting in concert prior to 1974 to maintain the status quo.

In summary, we find nothing in the present statutes which specifically prohibits the appellee from severing its utility tax relationship with the appellant. On the contrary, the clearly-expressed public policy now is that each school district may levy its own utility tax without regard to any other district within the county. Likewise, we find nothing in the statutes when viewed from an historical perspective which indicates a present legislative intent that a joint taxing relationship once begun must continue in perpetuity against the will of one of the taxing entities.

The judgment of the Calloway Circuit Court is affirmed.

All concur.


source: Caselaw Access Project

author: HAYES, Chief Judge:

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellant, v. Yvonne C. EVANS, Mary E. Mayes, Joann Martin and Kentucky Unemployment Insurance Commission, Appellees.
    Court of Appeals of Kentucky.
    July 13, 1984.
    Discretionary Review Denied by Supreme Court Jan. 9, 1985.

      Robert G. Breetz, Stites & Harbison, Louisville, Glenn W. Denham, Denham & Nagle, Middlesboro, for appellant.
    R. Jackson Rose, Tazewell, Paul F. Fau-ri, General Counsel, Lucy B. Richardson, Cabinet for Human Resources, Frankfort, for appellees.
    James L. Bowling, Jr., Middlesboro, for amicus curiae.
    Before HAYES, C.J., and GUDGEL and HOWERTON, JJ.
   HAYES, Chief Judge:

South Central Bell appeals a judgment of the Bell Circuit Court which upheld a decision of the Unemployment Insurance Commission permitting three former Bell employees to draw unemployment benefits for the same weeks for which they were receiving separation and vacation pay.

We believe that the question of the appropriateness of the Commission’s decision must be resolved by determining whether the weeks may be characterized as “weeks of unemployment” within the meaning of KRS 341.080(3). The statute provides:

The term “week of unemployment” means any period of seven (7) consecutive days, as prescribed by cabinet for human resources regulations during which a worker performed less than full-time work and earned less than an amount equal to one and one-fourth (IV4) times the benefit rate determined for him in accordance with the provisions of subsection (2) of KRS 341.380.

Two of the employees at issue here were hourly-rated workers covered under the terms of a collective bargaining agreement between South Central Bell and the Communications Workers of America. The provisions of that agreement required Bell to pay termination allowances at the basic pay rate of the employee for a period determined by the employee’s years of service with the company. The agreement also provided for payment for unused vacation days to which the employee would otherwise be entitled.

The third employee involved in this appeal is a management employee not covered by the collective bargaining agreement. She was, however, covered under the terms of a Management Income Protection Plan under which she received separation pay equal to 60% of her annual salary paid to her in semi-monthly installments. She did not receive any vacation pay.

Each of these employees were awarded unemployment benefits for each of the weeks for which they received their termination pay. South Central Bell appealed that ruling to the circuit court, and being unsuccessful there, now appeals to this court. Most simply put, it is our task to determine whether the weeks for which these employees received termination pay are “weeks of unemployment” for which they are eligible for unemployment benefits. Our interpretation of KRS 341.080(3) leads us to conclude that the weeks in which these employees received termination pay were weeks of unemployment within the meaning of the statute. The legislature defines “weeks of unemployment” as any period of seven consecutive days during which a worker performed less than full-time work AND earned less than one and one-fourth times his benefit rate. The employees at issue here performed no work after their dismissal to entitle them to their severance pay nor did they “earn” the severance pay by being fired. The severance pay received by the discharged workers was a bargained-for agreement directly relating to their employment. The right to these payments was earned by virtue of the employee’s work despite the fact that the triggering event was discharge from employment. It is clear to us that these employees did not “earn” anything from appellant after their discharge but simply reaped the benefit of previously vested collective bargaining rights.

We view the Commission’s policy with respect to severance pay as comporting with the statutory restrictions. Appellant argues that under the reasoning of Kentucky Unemployment Ins. Com’n v. General Electric Company, Ky., 473 S.W.2d 808 (1971), any week for which a employee receives pay cannot be considered a week of unemployment. We believe appellant oversimplifies the holding in that case which we view as distinguishable from the case at bar. In General Electric, the union contract provided that in the event of a shutdown, all vacations for that calendar year up to two weeks should be considered to run concurrently with the shutdown. This provision applied to vacation eligibility which accrued subsequent to the shutdown by reason of additional continuity of service. Thus in some cases it would not be apparent until the occurrence of a future event (continued service) whether there had in fact been weeks of unemployment.

In the instant case there is no question that the employees had been terminated from their employment. Vacation pay received after separation is in reality another form of severance pay which is distinguishable from the vacation pay at issue in the General Electric case. In that situation there was no termination because in some cases eligibility for the vacation pay accrued after the shutdown.

We find no conflict between the Commission’s policy regarding severance pay and the statutory provisions. Appellant’s assertion that the Commission may not change its position on the issue of severance pay is without merit. We are convinced that an administrative agency may re-examine its policies in the light of recent caselaw and other considerations in order to more accurately reflect statutory directives. Barnes v. Department of Revenue, Ky.App., 575 S.W.2d 169 (1978), does not, as appellant suggests, stand for the proposition that an administrative agency may never change its practice with regard to a particular statute. On this point, the court in Barnes cites Grantz v. Grauman, Ky., 302 S.W.2d 364 (1957), which holds that “[practical construction of an ambiguous law by administrative officers continued without interruption for a very long period is entitled to controlling weight.” (Emphasis ours). We find no ambiguity in the statutory definition of “weeks of unemployment” or in the statutes outlining disqualifying factors and deductibles. In our opinion, changing policy to better conform to the intent of statutory enactment is within the authority of an administrative body.

Finally, we agree with the Commission’s determination that the acceptance of benefits under the termination plans did not constitute a “voluntary quit” as it is clear that the plans could be imposed regardless of acceptance by the employee. These employees were displaced because of “technological advancements” and were slated for termination in any case.

The judgment of the Bell Circuit Court is affirmed.

All concur.


author: COMBS, Judge.

text:
    CIMMARON COAL CORPORATION, Appellant, v. DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 13, 1984.
    Rehearing Denied Aug. 31, 1984.
    Discretionary Review Denied by Supreme Court Jan. 9, 1985.

      Richard L. Frymire, Moore, Morrow & Frymire, Madisonville, for appellant.
    David L. Armstrong, Atty. Gen., Susan G. Leavenworth, Asst. Atty. Gen., Frankfort, Robert G. Bardin, Nathan Goldman, Staff Attorneys, Dept, of Revenue, Frankfort, for appellee.
    Before HAYES, C.J., and COMBS and GUDGEL, JJ.
   COMBS, Judge.

Taxpayer appeals a Hopkins Circuit Court judgment affirming a Kentucky Board of Tax Appeals order that required the taxpayer to pay additional coal severance tax.

The facts are undisputed. The taxpayer raises three issues requiring interpretation of KRS Chapter 143 as it was enacted in 1972.

I. Whether the money taxpayer received from a purchaser complying with a contractual obligation to pay severance tax is included in “gross value”.

In 1972, the General Assembly enacted the coal severance tax which required one severing coal to pay a tax equal to 4% of the “gross value” of the coal severed or a minimum of thirty cents for each ton of coal severed. 1972 Ky.Acts, Chap. 62, Part II, § 2.

During the period in question, taxpayer had one primary purchaser of its coal. The contract between the taxpayer and the purchaser provided that the cost of the coal would be adjusted to reflect any changes in the coal severance tax laws. After enactment of the coal severance tax in 1972, purchaser paid taxpayer an additional 4% per ton.

The question is whether taxpayer is entitled to deduct this additional 4% from the amounts he received for his coal to determine “gross value.” Taxpayer argues that to include the additional sum in “gross value” would permit double taxation and that the taxpayer was acting as a conduit in collecting the severance tax. We disagree.

The taxpayer recognizes that such sums collected since the law’s amendment in 1978 would be included in gross value. See KRS 143.010(6)(g).

Whether the additional compensation is included in gross value depends upon the intent of the Legislature in enacting 1972 Ky.Acts, Chap. 62, Part II, § l(6)(a), which defines “gross value” as applicable to the facts in this case as follows:

For coal severed and sold during a reporting period, gross value is the amount received or receivable by the taxpayer.

The plain meaning of the statute is that amounts received or receivable by the taxpayer are gross value. This taxpayer received or was contractually entitled to receive the contract price. The contract price was a base price plus 4% after enactment of the severance tax.

The General Assembly’s use of the word “gross” would imply the selling price of the coal. If the General Assembly did not mean to include taxes and other cost they would have used a word such as “net.”

The taxpayer also argues that he was acting as a conduit or agent for collection of these taxes. The one liable for the severance tax is the one who severs the coal, not the one who purchases it. 1972 Ky.Acts, Chap. 62, Part II, §§ 1(5), 2. Severance tax is not like Kentucky’s sales tax, where a retailer has a duty to collect the tax imposed upon purchasers. KRS 139.-330; KRS 139.340.

The trial court did not err in affirming the board’s order that included the entire contract price in “gross value.” This result is consistent with Luckett v. Electric Water Plant Board of the City of Frankfort, Ky., 558 S.W.2d 611 (1977).

II. Whether royalty payments should be deducted from “gross value”.

Taxpayer argues that the amount he paid in royalty should be deducted from gross value. The argument is premised on his interpretation of the regulations of the Department of Revenue that the lessor of the coal he severed is responsible for a proportionate share of the severance tax. We disagree.

We do not interpret the regulations the same way that the taxpayer does, but if we did, the regulations would be an ultra vires act of the Department. The statute defines “taxpayer” for purposes of severance tax as follows:

“Taxpayer” shall mean and include any individual, partnership, joint venture, association, or corporation engaged in severing coal in this state. 1972 Ky Acts Chap. 62, Part II § 1(5). (Emphasis added.)

A mineral owner who leases his coal to a severer of coal is not “engaged in severing” that coal.

The taxpayer’s reliance on Commonwealth v. Majestic Collieries Company, Ky., 594 S.W.2d 877 (1980) is misplaced. That case is not authority for a rule that anyone with an economic interest in coal which is severed owes severance tax. Majestic Collieries determined that a lessee of coal that uses contract miners to extract and transport coal was the taxpayer under KRS 148.010(5). The contract miners were held to be “tools” of the one “engaged in severing coal.” Unlike the lessee, the lessor asserts no control over the sequence, the time or the particular coal to be severed.

The trial court did not err in affirming the board’s order that the taxpayer’s royalty payments should not be deducted from gross value.

III. Whether gross value includes transportation costs from taxpayer’s mine to taxpayer’s processing plant.

Prior to the 1978 amendment, entities that processed coal were not subject to severance tax. In cases such as the present one in which the taxpayer both severed and processed coal, the Department provided taxpayers with a formula that would generally allow the taxpayer to deduct the cost of processing from gross value. The formula attributed the cost of transportation from mine to plant as mining expense. Taxpayer argues that the cost of transporting coal from the mine to the processing plant is attributable to processing, not mining. Although taxpayer did not present this issue in the same form, he has argued that this cost was not to be included in gross value at all times.

Prior to 1978, cost of transportation to purchasers was not included in gross value by regulation. After 1978, “transportation expense” was excluded from gross value by statute, and the cost a miner/processer incurs in transporting coal from mine to plant is included in “transportation expense.” KRS 143.010(6), (ll)(b).

We are unable to distinguish the difference between transporting coal to one’s own processing plant and transporting coal to a processing plant that has purchased the coal from the miner. If the General Assembly intended to exclude processing and transportation cost from gross value as the Department has interpreted this act by regulation, then it would have intended to exclude the cost of transporting the coal from the mine to the plant even if owned by the same entity. We hold such was their intent.

We affirm in part and reverse and remand in part with directions that the Hopkins Circuit Court remand this case to the Kentucky Board of Tax Appeals for decision consistent with this opinion.

All concur.


author: WHITE, Judge.

text:
    Thelma L. STOVALL, Commissioner of Labor (Special Fund), Appellant, v. Bobbie A. SWANSON, Central States Veneers, Inc., and Workers’ Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Aug. 31, 1984.
    Case Ordered Published by Court of Appeals Oct. 19, 1984.
    Discretionary Review Denied by Supreme Court Jan. 9, 1985.

      Douglas A. U’Sellis, Dept, of Labor, Louisville, for appellant.
    William E. Taylor, Paducah, for appellee, Bobbie Swanson.
    George R. Effinger, Paducah, for appel-lee, Central States Veneers, Inc.
    Before COMBS, DUNN and WHITE, JJ.
   WHITE, Judge.

The Special Fund appeals an Order of the McCracken Circuit Court which affirmed the Workers’ Compensation Board’s finding that appellee Bobbie Swanson was 100% occupationally disabled and which proportioned liability for that disability 100% on the Special Fund and 0% on the employer, appellee Central States Veneers. Only the apportionment of the award is at issue.

Appellee Bobbie Swanson sustained a fall at work on December 7, 1981. The back injury itself caused her only temporary damage; however, it served to trigger a major depressive episode which now leaves appellee totally occupationally disabled, prognosis of recovery uncertain. Prior to the injury, appellee had no occupational disability and had continuously supported her family. The Workers’ Compensation Board awarded total temporary disability from December 7, 1981, until April 23, 1982, plus past and future medical expenses against the appellee Central States Veneers but found all the permanent disability to have resulted from the arousal of an underlying, dormant, ‘mental condition and assessed liability for the total permanent award against the Special Fund.

The appellee Bobbie Swanson has participated in the appeal to the Circuit Court and now to this Court in a protective posture only, pointing out in each case that no challenge to the finding of total disability has been raised by either the employer or the Special Fund. The appellant Special Fund argues that there is no evidence in the record that supports the Board’s finding that appellee had a preexisting, dormant condition at all. Alternatively, it argues that some of the liability should be apportioned to the employer. The second argument has no merit, for if any evidence supports the Board’s decision that a preexisting disability exists, then we cannot disturb their findings on apportionment.

The Board discusses in its findings the testimony of three doctors, Dr. Joseph Bas-sie, who first recognized the psychiatric implications of the appellee’s injury and referred her to other doctors, and psychiatrists Dr. Kelley and Dr. Smith (appointed pursuant to KRS 342.121). The Board obviously bases all of its findings concerning appellee’s mental condition on the testimony of the psychiatrists. However, both Dr. Kelley and Dr. Smith specifically deny that appellee had a dormant nondisabling psychiatric condition prior to the injury she sustained on December 7,1981. In particular, Dr. Kelley states that if appellee had not sustained the trauma of the fall, she would not have been disabled at all from a psychiatric standpoint.

The appellant relies on the ease of Yocom v. Jackson, Ky.App., 554 S.W.2d 891 (1977), for the position that absent a preexisting nondisabling neurosis which becomes disabling following a subsequent injury, liability as a matter of law cannot be imposed on the Special Fund for mental disability resulting from a work-related physical accident. The court states on page 896: “... this court concludes that it must be reasonably foreseeable that the abnormality may become disabling to some degree as a result of the ordinary stresses of everyday life over the employee’s expected work life before it can be considered a dormant condition within the meaning of KRS 342.120.”

The stress factors cited by the psychiatrists that existed in appellee’s life to explain the appellee’s inability to function after her injury are not disabling in and of themselves; in fact, many functioning human beings presently have or have overcome similar hardships. To attempt to label these stresses of living as preexisting conditions that would trigger liability of the Special Fund is to stretch the meaning of the statute far beyond what was contemplated by the Legislature.

We therefore reverse the decision of the McCracken Circuit Court and remand for entry of an order assessing 100% of the liability for appellee’s permanent disability to the appellee Central States Veneers, Inc., and dismissing the Special Fund.

All concur.


author: GUNN, Judge.

text:
    Pierre L. LaBARGE, Jr., Respondent, v. Mary Ann BERNDSEN, etc., Appellant. Pierre L. LaBARGE, Jr., Respondent, v. Mary Ann BERNDSEN, Appellant, v. BOATMEN’S NATIONAL BANK, Garnishee.
    Nos. 65969, 66153.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.

      Richard H. Edwards, Lynn E. Morgen-stern, Clayton, for appellant.
    Timothy R. Anderson, Donald H. Cloo-ney, St. Louis, for respondent.
   GUNN, Judge.

This appeal involves the consolidation of two cases including a garnishment proceeding brought by a former spouse to collect unpaid maintenance. The trial court quashed the garnishment and the garnisher (the former wife) appealed. The trial court did, however, award attorney’s fees to the former wife, and from this order the former husband cross-appealed. The trial court also awarded the former wife attorney’s fees incurred in prosecuting her appeal, and from this order the former husband also appeals. The original appeal and cross-appeal were ordered transferred by this Court. The subsequent appeal was certified to this Court by the court of appeals. Both cases are considered as on original appeal. Rule 83.09.

We affirm the fee awards and reverse the trial court’s order quashing the garnishment.

The fundamental issue is whether under the circumstances of this case and in light of § 452.370.2, RSMo 1978, the former husband remains obligated for maintenance payments beyond the remarriage of the former wife.

The former wife, Mary Ann Berndsen and the former husband, Pierre L. La-Barge, Jr., had their marriage dissolved on July 21, 1978, following an uncontested hearing. The dissolution decree incorporated a separation agreement which they had previously executed. This agreement provided for maintenance in a certain amount to be paid to the former wife “for as long as she shall live.” The agreement also stated that maintenance was to continue after the death of the former husband. The former husband also agreed to maintain health and hospitalization insurance for the former wife “until such time as she may remarry.” The agreement declared that it represented a complete settlement of their respective property rights and any claims they might have arising out of the marital relationship.

During the dissolution hearing, the former husband gave the following enlightening testimony in answer to his counsel’s questions:

Q. In addition to the said maintenance award, you have pledged the stock as security, and you understand that she will receive this particular maintenance, even though she remarries?
A. That is correct.
Q. And furthermore, she would continue to receive it in the event of your death?
A. Yes, sir.
Q. And the only matter which ceases in the event of her death [sic]. Is that correct?
A. Yes.

(Emphasis added.)

The parties also entered into a trust agreement with Boatmen’s National Bank, garnishee, as trustee. Under the terms of that agreement, the husband pledged 1,100,000 shares of common stock in LaBarge, Inc. as security for the maintenance obligation. The trust agreement also provided that he would pay the attorney’s fees and other expenses incurred by the former wife in resolving certain disputes among the parties.

On July 11, 1982, the former wife remarried Herbert Berndsen. The former husband thereafter ceased paying maintenance, and the former wife brought the garnishment action, which is the subject of this appeal, against Boatmen’s Bank. The former husband intervened and moved to quash the garnishment. In the hearing on the motion to quash, the former husband’s earlier testimony regarding his understanding of the effect of the agreement was offered and received into evidence.

The issue presented by the motion to quash was whether, by operation of § 452.-370.2, RSMo 1978, the former husband’s obligation to pay maintenance to the former wife terminated upon her remarriage. That subsection states that “[ujnless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.” Id,.

The trial court found that it was the intent of both parties to the separation agreement that the former wife’s right to receive maintenance should not terminate in the event of her remarriage. Nevertheless, the trial court ordered the garnishment quashed, concluding that the statute [§ 452.370.2] required an “express provision” in order to create a maintenance obligation which would continue beyond the remarriage of the recipient spouse, and that the court was powerless to look beyond the separation document itself in order to determine the intent of the parties.

However, the peculiar circumstances of this case do allow a glimpse at the evidence beyond the separation document to determine the legal effect the parties intended for that agreement. Thus, reversal of the judgment is compelled. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) (erroneous declaration of law requires reversal).

Under § 452.370.2, the question of whether the former husband’s obligation to pay maintenance terminated upon his former wife’s remarriage depends upon whether the parties “otherwise agreed” in their separation agreement. The separation agreement does not explicitly state that maintenance is not to terminate upon her remarriage; however, it does state that maintenance is to continue “for as long as she shall live.” The question then becomes whether this language provides “otherwise” than that maintenance is to terminate upon remarriage. The answer is that it is ambiguous in this respect, in that “its terms convey more than one meaning so that reasonable persons may fairly differ in interpreting those terms.” Landreth v. Gan, 647 S.W.2d 932, 936 (Mo.App.1983).

To demonstrate this ambiguity, it is sufficient for present purposes to show that the terms may reasonably be interpreted as providing that maintenance is not to terminate upon the former wife’s remarriage. This conclusion results from the relationship between the stated term of continuation (the life of the former wife) and the condition whose effect is sought to be determined (her remarriage). The relationship between these is that the condition (remarriage) will necessarily occur, if it is to occur at all, prior to the expiration of the term of continuation — her life. A reasonable inference, then, is that maintenance is to continue beyond any eventual remarriage and conversely that maintenance is not to terminate upon the happening of that event. This is not to say that this is the only reasonable inference, nor that it is the most reasonable inference. However, since there is a reasonable inference available that the agreement provides “otherwise” than that maintenance is to terminate upon remarriage, the agreement is at least ambiguous on this point.

The inference that the parties intended for maintenance to continue beyond the wife’s remarriage is also bolstered by the •provision that health insurance was to remain the husband’s obligation only “until such time as [the wife] may remarry.” This overt reference to the termination of benefits upon remarriage indicates that the parties were aware of and rejected that condition as a possible limitation upon maintenance.

Since the agreement is ambiguous regarding its effect in the event of remarriage, resort may be had to extrinsic evidence, including parol evidence, to determine the true intent of the parties to the contract and resolve the ambiguities. Modine Manufacturing Co. v. Carlock, 510 S.W.2d 462, 467 (Mo.1974); J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973); Robson v. United Pacific Insurance Co., 391 S.W.2d 855, 861 (Mo.1965); Fisher v. Miceli, 291 S.W.2d 845, 848 (Mo.1956); Wilson v. Bob Wood & Associates, Inc., 633 S.W.2d 738, 747 (Mo.App.1981). The intent of the husband to obligate himself to the payment of maintenance notwithstanding the former wife’s potential remarriage is manifest in his testimony during the dissolution proceeding. The trial court in the present proceeding determined this to be the intent of both parties to the agreement, as a matter of fact. It could scarcely have determined otherwise.

The circumstances in this case differ significantly from those in Desloge v. Desloge, 617 S.W.2d 486 (Mo.App.1981), a case apparently relied on by the trial court, and which at first blush seems apt. In Desloge, the separation agreement in question provided that maintenance was to terminate upon the earliest to occur of the wife’s death or the expiration of 121 months. The former wife remarried within the 121 month period and the former husband moved to modify the decree which incorporated the agreement, contending that § 452.370.2 operated to terminate the maintenance obligation upon her remarriage. The trial court denied the motion after a non-evidentiary hearing. The trial court’s judgment therefore amounted to a determination, as a matter of law, that the agreement unambiguously provided for maintenance to continue beyond remarriage. This is because, if an ambiguity on that point existed, the question of the legal effect of the agreement became one of fact calling for resort to evidence of other explanatory provisions or extrinsic circumstances. Commerce Trust Co. v. Howard, 429 S.W.2d 702, 705 (Mo.1968); Massachusetts Bonding & Insurance Co. v. Ray Dilschneider, Inc., 203 F.2d 556, 559 (8th Cir. 1953). The Eastern District of the Court of Appeals reversed.

Viewed in this context, it is clear that the Desloge court properly rejected the trial court’s construction of the agreement as a matter of law in favor of the recipient spouse. The agreement at best ambiguously provided for non-termination of maintenance upon the wife’s remarriage. The only inference in favor of non-termination was one of doubtful reasonableness, the inference being that, by stating two specific termination conditions — the expiration of the period and the wife’s death — the parties intended that maintenance was not to terminate on the happening of any other condition. Also, in Desloge, unlike the present case, the stated term bore no special relationship to remarriage as compared to all other conceivable termination conditions, since remarriage could have occurred either before or after the expiration of the term. Certainly it was a reasonable inference that the parties intended for maintenance to be subject to the statutory termination conditions.

It should be understood, however, that the following generalization by the Desloge court should be considered as limited by the holding in the present case: that “[t]he language of § 452.370.2, RSMo 1978 makes it abundantly clear that neither an implied agreement nor an exclusionary influence can satisfy the dictate of § 452.-370.2, RSMo 1978, and prevent termination of the maintenance obligation after remarriage.” Desloge, 617 S.W.2d at 488. Where the implication or inference creates a reasonable ambiguity with respect to non-termination on the order of that present here, the completeness and integration of the agreement will not prevent resort to extrinsic evidence in order to determine the parties’ true intent.

There was a reasonable ambiguity created in the present case. Thus, extrinsic evidence was available to aid in determining the parties’ intent. The parties were given full opportunity to present such evidence to the trial court. The factual issue of the intent of the parties is therefore concluded and is in accordance with the trial court’s finding of fact. No remand is necessary.

The final matter for consideration pertains to the award of attorney’s fees and costs incurred in the garnishment action and subsequent appeals. The trial court had authority to award such fees and costs, in its discretion, in an action brought to enforce a maintenance obligation. Moser v. Moser, 642 S.W.2d 688, 689 (Mo.App.1982); § 452.335, RSMo 1978. Furthermore, the fees and costs allowable extend to those incurred “after entry of judgment.” § 452.355. It is not necessary that the party awarded fees have prevailed either at trial or on appeal. Nelson v. Nelson, 516 S.W.2d 574, 581 (Mo.App.1974). The trial court properly considered the relevant factors when making the award. That fact is not challenged. It is therefore unnecessary to consider whether the attorney’s fees and costs were authorized by the trust agreement. The trial court’s judgment in this respect is therefore affirmed.

The trial court’s judgment quashing the garnishment is hereby reversed.

All concur.

      . The amount of the maintenance payments was equivalent to the dividend paid on this stock, with $66,000 per year stated as the minimum obligation.

      . The statute has since been amended to refer to "future [statutory] maintenance." § 452.370.2, RSMo Cum.Supp.1984.

      . See Krick v. Krick, 76 Nev. 52, 348 P.2d 752 (1960) (decree providing maintenance for life held to be an order “otherwise” sufficient to prevent termination upon remarriage).

      . The further condition that maintenance is not to terminate upon the former husband’s death is essentially neutral with respect to the inference that maintenance was intended to continue beyond remarriage. It is possible to construe this condition as indicating that maintenance is to terminate solely upon the former wife’s death. However, it is an equally available inference that, by specifying non-termination upon one of the statutory conditions, the parties intended to preclude non-termination upon the unmentioned statutory condition (remarriage).

      . But see Watters v. Foreman, 204 Neb. 670, 284 N.W.2d 850 (1979). Under facts substantially identical to those in Desloge, the court construed the agreement as "otherwise" within the meaning of the statute, reasoning that the inclusion of one of the statutory conditions (the death of the recipient spouse) as a termination condition under the agreement expressed an intention that the other statutory conditions (e.g., that spouse’s remarriage) were not to effect a termination.


author: HIGGINS, Judge.

text:
    STATE ex rel. COCA COLA BOTTLING COMPANY OF MID-AMERICA, Relator, v. Hon. Gary GAERTNER, Judge of the Circuit Court, 22nd Judicial Circuit, and Hon. Freeman Bosley, Clerk of the Circuit Court, 22nd Judicial Circuit, and Glen Graham, Respondents.
    No. 65873.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.

      Thomas J. Plunkert, St. Louis, for relator.
    Vernon Dawdy, Fenton, for respondents.
   HIGGINS, Judge.

Coca Cola Bottling Company of Mid-America seeks prohibition or mandamus to prevent Judge Gary Gaertner from transferring the underlying damage suit from the Circuit Court of the City of St. Louis to the Circuit Court of Pettis County and from taking any further action in the case other than to dismiss it for lack of proper venue. A provisional rule in prohibition and an alternative writ of mandamus issued April 16, 1984. The question is whether joinder of a party whose presence in the suit supports venue but against whom the statute of limitations has run establishes proper venue for a suit against a co-defendant not otherwise subject to the jurisdiction of the court. If not, the related question is whether a court that lacks jurisdiction because venue is improper can transfer the case to a court of proper venue. The preliminary writ of prohibition is made absolute.

On July 25, 1978, Glen Graham was injured on Coca Cola’s premises when struck by a fork lift operated by Jesse McFail, an employee of Coca Cola. On February 22, 1983, plaintiff Graham filed a personal injury action against defendant Coca Cola in the City of St. Louis. The only connection defendant has with St. Louis City is the presence there of its registered agent for service of process. Defendant entered a special appearance March 25, 1983, to challenge venue. On August 1, 1983, plaintiff filed an amended petition in St. Louis City to join McFail as a defendant. Defendant Coca Cola again entered a special appearance to challenge venue, and defendant McFail filed a motion to dismiss. Judge Gaertner dismissed the amended petition against McFail under the bar of the statute of limitations; and over the objection of Coca Cola, the court transferred the case to Pettis County.

Relator contends that the Circuit Court of the City of St. Louis lacks venue over the suit under section 508.040, RSMo 1978, and so has no jurisdiction to proceed, including no jurisdiction to transfer to a court of proper venue. Relator says that joinder of McFail was improper because the statute of limitations had run as to McFail, and was attempted to circumvent the venue provisions of section 508.040. Respondent Graham defends his joinder of McFail; he asserts that venue was proper in St. Louis City under section 508.010, RSMo 1978, with the filing of the amended petition, and that the circuit court thus acquired jurisdiction.

Section 508.040 applies when a corporation is the sole defendant and places venue “either in the county where the cause of action accrued ... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” St. Louis City was neither “the county where the cause of action accrued” nor the county where relator has or usually keeps “an office or agent for the transaction of [its] usual and customary business.” A registered agent is not an agent within the meaning of the statute. Sperry Corporation v. Corcoran, 657 S.W.2d 619 (Mo. banc 1983); Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d 644 (Mo.App.1983); State ex rel. Whaley v. Gaertner, 605 S.W.2d 506 (Mo.App.1980).

Under section 508.040, RSMo 1978, then, venue is not in St. Louis City. Respondent argues, however, for application of section 508.010, RSMo 1978, the general venue statute. Although section 508.010 supports venue in St. Louis City, the statute applies only where there are individual as well as corporate defendants, State ex rel. Hails v. Lasky, 546 S.W.2d 512 (Mo.App.1977). Thus its application here depends on proper joinder of McFail.

If a plaintiff improperly joins the defendant through whom venue is acquired, then venue is not proper. Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d at 646-647. See Kloos v. Corcoran, 643 S.W.2d 94 (Mo.App.1982). Courts recognize pretensive joinder “(1) where the pretensive nature of the joinder appears on the face of the pleadings and (2) where there is in fact no cause of action against the resident defendant.” Sledge v. Town & Country Tire Centers, Inc., 654 S.W.2d 176, 181 (Mo.App.1983). In the latter instance, joinder is pretensive if accomplished without an honest belief, based on the law and the evidence, that a justiciable claim exists against the party joined. Rakestraw v. Norris, 478 S.W.2d 409, 414 (Mo.App.1972).

The amended petition on its face shows that the suit against McFail was barred by the statute of limitations. Counsel for plaintiff conceded before the circuit court that the statute of limitations had run on the cause of action against McFail, and the court sustained McFail’s motion to dismiss for this reason. Respondent Graham’s citation of authority for the proposition that the statute of limitations is an affirmative defense that is waived unless pleaded does not aid his argument because there is no dispute in this case that McFail properly asserted the defense. Respondent admits McFail pleaded the statute in his additional argument that McFail, by filing an answer and motions for judgment on the pleadings and to dismiss based on the statute of limitations, submitted to the jurisdiction of the court, bringing the case within section 508.010.

This second argument fails because once the circuit court properly dismissed the amended petition, it had jurisdiction to proceed against relator only if suit against relator alone could have been brought in St. Louis City or if McFail was a proper co-defendant when joined. Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d at 646. As noted, venue in St. Louis City was improper against relator alone. Apparently to justify joinder of McFail, respondent argues that McFail is the primary tortfeasor whose identity was unknown prior to filing the amended petition. Respondent does not explain why he was unable to identify the fork lift operator in the five years that elapsed before the statute of limitations ran. The timing of joinder, the dates on the face of the pleadings showing the expiration of the limitations period, and plaintiffs concession show that he knew McFail could not be held liable under the law. Diehr v. Carey, 288 Mo.App. 889, 191 S.W.2d 296 (1945). If respondent stated a “paper case” against McFail, Rakestraw v. Norris, 478 S.W.2d at 414, he fails to establish that he had an honest belief in a justiciable claim against McFail. Joinder of McFail was thus insufficient to establish venue in the City of St. Louis as to relator. Because venue was improper, the court acquired no jurisdiction over relator and was powerless to proceed. State ex rel. Wasson v. Schroeder, 646 S.W.2d 105, 106 (Mo. banc 1983); Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d at 646-647.

Nor could the court transfer the case to a court of proper venue. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (1956). See also State ex rel. Ballew v. Hawkins, 361 S.W.2d 852 (Mo.App.1962). The court in Weinstein rejected an argument that a court that lacks jurisdiction has “inherent power” to transfer a case, noting the absence of statutory or case law authority for a transfer. 295 S.W.2d at 66-67. This Court concludes that the Circuit Court of St. Louis City exceeded its authority and jurisdiction in ordering the proposed transfer; prohibition lies to prevent such an attempted transfer. Weinstein, 295 S.W.2d at 68. See also Sperry Corporation v. Corcoran, 657 S.W.2d 619, 620 (Mo. banc 1983); State ex rel. Wasson v. Schroeder, 646 S.W.2d at 106; State ex rel. Allen v. Barker, 581 S.W.2d 818, 824 (Mo. banc 1979).

Accordingly, the preliminary writ of prohibition is made absolute.

All concur.


author: RENDLEN, Chief Justice.

text:
    STATE ex rel. D.M., Relator, v. The Honorable Robert G.J. HOESTER, Judge of the Circuit Court of St. Louis County, Division No. 8, Respondent.
    No. 65746.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Robert B. Hoemeke, John M. Hessel, Joseph J. Trad, St. Louis, for relator.
    Francis L. Kenney III, Clayton, for respondent.
   RENDLEN, Chief Justice.

This proceeding in prohibition arises from a damage action for intentional tort. Relator D.M., defendant in the trial below, asserted the physician-patient privilege and sought to preclude Respondent Judge Robert Hoester from ordering disclosure of the testimony and medical records of D.M.’s psychiatrist. Respondent argued that § 210.140, RSMo Cum.Supp.1983, rendered inapplicable or suspended the privilege in such case.

In her petition for damages plaintiff K.M. alleges that she was repeatedly assaulted and sexually molested by her adoptive father D.M. over a number of years and that her mother C.M. knowingly allowed the abuse to occur. During this period D.M. allegedly sought psychiatric treatment for his abusive behavior. In preparation for trial plaintiff sought to depose Dr. Anton Heusler, D.M.’s psychiatrist, and requested him to produce medical records pertaining to the patient’s treatment. D.M. asserted the physician-patient privilege and moved to quash the notice of deposition.

Dr. Heusler, deposed before the hearing on the motion to quash, relied on the physician-patient privilege and refused to answer questions relating to D.M.’s treatment or to produce the requested records. Thereupon plaintiff moved to compel testimony and to produce documents, asserting inapplicability of the privilege' because of § 210.140.

Respondent denied D.M.’s motion to quash, sustained plaintiff’s motion to compel testimony and for production of documents and ordered the retaking of Dr. Heusler’s deposition. D.M. petitioned for a stay of the circuit court order, and the Missouri Court of Appeals Eastern District issued its Preliminary Writ of Prohibition. The court found that § 210.140 had no effect on the asserted privilege in a civil action for damages and ordered its Preliminary Writ made absolute. We granted transfer.

It is axiomatic that the physician-patient privilege has no constitutional underpinning and is statutory in origin. State v. Carter, 641 S.W.2d 54 (Mo. banc 1982). What the legislature grants it can also modify or abolish. Randolph v. Supreme Liberty Life Insurance Co., 359 Mo. 251, 221 S.W.2d 155 (banc 1949). The issue in the case at bar is whether the legislature intended § 210.140 to vitiate the physician-patient privilege in damage actions for child abuse.

In determining the legislative intent we must first consider the language of the statute and the words employed in their plain and ordinary meaning. L & R Distributing Co., Inc., v. Missouri Department of Revenue, 648 S.W.2d 91 (Mo.1983). Section 210.140 provides:

Any legally recognized privileged communication, except that between attorney and client, shall not apply to situations involving known or suspected child abuse or neglect and shall not consti tute grounds for failure to report as required or permitted by sections 210.110 to 210.165, to cooperate with the division in any of its activities pursuant to sections 210.110 to 210.165, or to give or accept evidence in any judicial proceeding relating to child abuse or neglect. (Emphasis added.)

Respondent contends the emphasized language of the statute removes the physician-patient privilege from any judicial proceeding pertaining to child abuse or neglect and concludes that where, as here, the language used is plain and admits of only one meaning, there is no room for further construction. L & R Distributing, 648 S.W.2d at 95.

On the other hand, relator argues the abatement applies only to judicial proceedings contemplated by the Child Protection and Reformation Act, §§ 210.110-210.165, and that the act is fundamentally designed to encourage the reporting of suspected instances of child abuse to the Division of Family Services and to ensure that appropriate steps are taken to protect the victimized child. Nelson v. Freeman, 587 F.Supp. 602 (W.D.Mo.1982), aff’d sub nom., Nelson v. Missouri Division of Family Services, 706 F.2d 276 (8th Cir.1983). Relator further contends the purpose of the act implicitly limits the application of the privilege abrogation to those judicial proceedings arising within the statutory scheme.

The difficulty with relator’s argument is the language of the statute itself. We find no indication the legislature intended to limit the broad language of § 210.140 and to exclude from its purview a civil action for damages. A detailed examination of pertinent portions of § 210.-140 reinforces our view of the legislative intent. The first section of the statute which provides,

Any legally recognized privileged communication, except that between attorney and client ... (emphasis added),

without question refers to, among others, the doctor-patient privilege. This section also describes the instances in which the privilege shall not pertain. It states the privilege

shall not apply to situations involving ... child abuse or neglect_ (Emphasis added.)

The very broad term “situations” most certainly includes those instances bearing either civil or criminal implications and is not limited to one or the other.

The second section of the statute consists of three subparts, which with specificity spell out those “situations” to which the privilege will not apply or protect those involved in child abuse or neglect. The first two subparts state:

[The Doctor-Patient privilege] shall not constitute grounds for failure to report as required or permitted by sections 210.-110 to 210.165, [or for failure] to cooperate with the division in any of its activities pursuant to sections 210.110 to 210.-165_ (Emphasis added.)

In these subparts the legislature makes manifest its intent that those who must “report” and “cooperate” under the terms of the child “protection” and “abuse” statutes will not be heard to raise the privilege in those cases where appropriate action might be taken to invoke sanctions or require such reporting or cooperation with “the division.”

The third subpart relates to judicial proceedings in which the privilege shall not be invoked to prevent the giving or acceptance of evidence. This subpart is not limited to those instances in which failure to “report” or “cooperate” with the “division” has occurred nor is it tied to only those cases in which actions are brought under Sections 210.110 to 210.165. Neither, as previously noted, is it limited to either criminal or civil proceedings, instead the broad language explains the privilege shall not be applicable or constitute grounds to bar the giving or accepting of

evidence in any judicial proceeding relating to child abuse or neglect_ (Emphasis added.)

Had the legislature intended a narrower range of the nullifying section it could have readily limited its scope. For example, the legislatures of several states have restricted the application of the privilege abrogation to judicial proceedings explicitly arising from the operation of their respective child abuse acts.

Our Legislature imposed no such limitation on § 210.140, and we are not at liberty to add by interpolation or otherwise limiting provisions not plainly written or necessarily implied from the language used. Missouri Public Service Co. v. Platte-Clay Electric Co-op., 407 S.W.2d 883 (Mo.1966). Nor from the text of this statute can we say the legislature inadvertently neglected to limit the language of the privilege-nullifying statute. Indeed, the number of reports of child abuse cases appearing in a multitude of publications indicate the problem has reached epidemic proportions and apparently the legislature has determined the deterrent value of tort judgments as well as other available sanctions are necessary to stem the rising tide.

We quash the preliminary order in prohibition.

All concur.

      . Section 491.060(5), RSMo Cum.Supp.1983, provides that a physician shall be incompetent to testify "concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon."

      . The statute provides in part that "[a]ny legally recognized privileged communication, except that between attorney and client, shall not apply to situations involving known or suspected child abuse or neglect and shall not constitute grounds for failure ... to give or accept evidence in any judicial proceeding relating to child abuse or neglect."
      All references are to RSMo Cum.Supp.1983 unless otherwise noted.

      .It should be noted at the outset that prohibition lies in some instances to prevent judicial violation of statutory inhibitions, though in State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), we held that violation of a statutory provision by a trial court does not always constitute an act in excess of its jurisdiction. The court’s order in the instant case would allow discovery of materials privileged under § 491.060(5) RSMo Cum.Supp.1983. Since § 491.060(5) standing alone operates in part to restrict the power of a trial court in the discovery process, see State ex rel. Mehle v. Harper, 643 S.W.2d 643 (Mo.App.1982), it can be said that violation of the statute constitutes an act in excess of jurisdiction. State ex rel. Collins v. Donelson, 557 S.W.2d 707 (Mo.App.1977). See State ex rel. Uregas Service Co., Inc., v. Adams, 262 S.W.2d 9 (Mo. banc 1953).

      . In State v. Brydon, 626 S.W.2d 443 (Mo.App.1981), it was held that criminal cases are within the statute’s scope.

      . See, e.g., Alaska, AS 47.17.060 (1984 Cum. Supp.): "Neither the physician-patient privilege nor the husband-wife privilege is a ground for excluding evidence regarding a child’s harm, or its cause, in a judicial proceeding related to a report made under this chapter." (Emphasis added.) See also California, Cal.Pen.Code § 11171(b) (1982); Colorado, C.R.S. § 19-10-112 (1973 and Cum.Supp.1983); Kentucky, KRS § 199.335(7) (1982 and 1984 Cum.Supp.); New Hampshire, RSA § 169-C:32 (Cum.Supp. 1983); North Dakota, NDCC § 50-25.1-10 (1981); and Oregon, ORS § 418.775 (1983).

      . Relator urges that we deny application of the statute to civil cases because abrogation of the privilege will deter child abusers from seeking psychiatric treatment. The argument is not persuasive as the alleged "disincentive” or “chilling effect” is absorbed in light of the criminal implications. Criminal prosecutions can be brought against a child abuser who is reported to the Division of Family Services under the statute, § 210.145.7, RSMo Cum.Supp.1983, and the privilege is clearly not available in such a proceeding. See State v. Brydon, 626 S.W.2d 443 (Mo.App.1981). The possible disincentive the threat of civil action poses becomes of little moment for the child molester knows he faces possible criminal prosecution and the privilege is not available to prevent disclosures in such proceedings. Accordingly the additional possibility of abrogation of the privilege in civil proceedings would add little to the effect resulting from the threat of the criminal prosecution and the knowledge that the physician-patient privilege is unavailable there.


author: DONNELLY, Judge. BLACKMAR, Judge,

text:
    In re ADOPTION OF W.B.L.
    No. 65912.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.

      David G. Neal, Eminence, for petitioners-respondents.
    Randy P. Schuller, Piedmont, for respondent-appellee.
   DONNELLY, Judge.

This appeal is from the trial court’s granting, upon remand by this Court in In re Adoption of W.B.L., 647 S.W.2d 531 (Mo. banc 1983), the adoption of a child on the grounds of abandonment and neglect by .the natural mother under § 453.040(4), RSMo 1978. The court of appeals reversed for lack of sufficient evidence to support the judgment. Upon application, this Court granted transfer. We affirm the trial court’s judgment.

On October 19, 1979, respondents, the father and stepmother of the child, filed their petition for adoption. Section 453.-040(4), RSMo 1978, provides for adoption without the consent of a natural parent when the parent “has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.” In its initial determination, the trial court found the natural mother had willfully abandoned and neglected the child from “August of 1978 until September of 1979,” a period of greater than one year, and granted the adoption. Because the trial court’s findings contained a gap “in the requisite statutory period between October 19,1979, the date of filing the petition, and the end of September 1979,” we remanded for the trial court to consider whether abandonment continued until October 19, 1979, as required by § 453.040(4). Without taking additional evidence, the trial court then filed an amended decree, finding that the abandonment and neglect had continued from August of 1978 until October 19, 1979, and again granted the adoption. The natural mother contests the sufficiency of the evidence supporting the determination of abandonment and neglect, and asserts that in late September or early October 1979, she attempted to exercise her visitation rights and that she repented any earlier abandonment. Accordingly, she seeks reversal of the adoption decree.

This Court must sustain the decision of the trial court unless there is no substantial evidence to support its judgment, the judgment is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This standard of review on appeal is not inconsistent with the high “clear, cogent and convincing” standard of proof which Missouri law requires to be satisfied by the trial court as fact finder in termination cases. That same standard of proof applies both to termination cases initiated by the state, § 211.447.2(2), RSMo Cum.Supp.1984; see Santosky v. Kramer, 455 U.S. 745, 749, n. 3, 102 S.Ct. 1388, 1392 n. 3, 71 L.Ed.2d 599 (1982), and in conjunction with adoption under Chapter 453. In re T.C.M., 651 S.W.2d 525 (Mo.App.1983); In re Adoption of Richards, 624 S.W.2d 483 (Mo.App.1981); In re Adoption of Baby Boy Doe, 600 S.W.2d 658 (Mo.App.1980). The clear, cogent and convincing standard of proof is met when the evidence “instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re O’Brien, 600 S.W.2d 695, 697 (Mo.App.1980). Accordingly, this standard of proof may be met although the court has contrary evidence before it. Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974). Likewise, evidence in the record which might have supported a different conclusion does not necessarily demonstrate that the trial court’s determination is against the weight of the evidence. Stegemann v. Fauk, 571 S.W.2d 697, 700 (Mo.App.1978).

Prior to remand, we concluded that the “record amply supports the trial court’s conclusion that there was a willful abandonment by the natural mother of the child for the one-year period between August, 1978, and September, 1979.” The question remaining is the effect of the mother’s actions after that time until the petition was filed on October 19, 1979.

A parent may repent of an abandonment. In re K.M.B. 544 S.W.2d 590 (Mo.App.1976). However, not every gesture by a natural parent will terminate such abandonment. D.A.Z. v. M.E.T., 575 S.W.2d 243 (Mo.App.1978); see generally Annot., 35 A.L.R.2d 662, § 6 (1954). Whether or not there has been an abandonment — or repentence of abandonment — requires an examination of the parent’s intent, an inferred fact, determined by considering all the evidence of the parent’s conduct, In re T.C.M., 651 S.W.2d 525 (Mo.App.1983), including that before and after the statutory period. In re Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo. banc 1978).

We maintain that adoption statutes are to be strictly construed in favor of the natural parents. In re Adoption of R.A.B., 562 S.W.2d at 360. However, in this case the factual issue of the natural mother’s intent is determinative. On appeal of a court-tried case, the appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record. Mazurek v. Mazurek, 575 S.W.2d 227, 229 (Mo.App.1978); L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976). As the trier of fact, the trial court has leave to believe or disbelieve all, part or none of the testimony of any witness. In re Adoption of Shelly, 625 S.W.2d 183, 184 (Mo.App.1981); Willard v. Doyle, 612 S.W.2d 884, 888 (Mo.App.1981); Rule 73.01(c)(2). The trial court is in an especially advantageous position to determine the intent of a parent-witness in an adoption case.

In this case, the trial court found or reasonably could have found the following facts as a basis for its decision. Upon the dissolution of the marriage on June 22, 1977, primary custody of the child, then less than three years of age, was awarded to the father. The natural mother was granted reasonable visitation and custody during each month of July, the first and third weekends of other months and for one week at Christmas. She kept the child not more than 15 days in July 1977. From that time until July 1978, she assumed custody for the full period of Christmas 1977, but otherwise only sporadically exercised her privilege of weekend custody or visitation. She had custody of the child for only five days in July 1978. Thereafter she had custody of the child the last weekend in August 1978. She has not had custody of the child since that time. Although she asserted that she was unable to visit the child because of problems with transportation and finances, her own testimony showed that she owned an automobile, travelled frequently and extensively, and was frequently employed and making sufficient income to finance visitation. In addition to her failure to visit the child, the natural mother has not communicated with him by telephone or mail since August 1978.

During the statutory period, the natural mother made one attempt to contact the child for the purpose of exercising Christmas visitation in December of 1978. She called the father’s mother and was told the child was not at his grandmother’s and to contact the father. She did not do so. In the latter part of September or first part of October 1979, she next contacted the father concerning visitation with the child. At that time the father and stepmother had employed an attorney to file this case. Upon the lawyer’s advice, the father refused to extend visitation to the appellant. He had done nothing to impede or refuse visitation until this time. After learning that this proceeding was to be commenced, the natural mother filed a motion for contempt for denial of visitation, but so far as demonstrated by the record did not pursue that motion. Even though this case was not decided until May 1981, the record does not show that she made any other effort to see or communicate with the child.

The natural mother offered various excuses for not seeing or communicating with the child after August 1978. These excuses included the absence of transportation, inclement weather, shortages of funds, lack of knowledge of the father’s phone numbers, denial of visitation and the professed absence of knowledge that she was to have custody during the entire month of July. It is of critical significance that in virtually every instance these excuses were directly contradicted and impeached. The trial court expressly found them “not credible,” and “unconvincing and transparent.”

The trial court also found the natural mother’s attempts to contact the child to be “half-hearted and token,” noting that “she failed to follow-up on her efforts” when they did not yield an immediate result, and “did not persist” in her cause to visit with the child. In so doing, the trial court followed the admonition contained in In re Adoption of Richards, 624 S.W.2d 483 (Mo.App.1981), by setting forth with particularity its reasons for disregarding the belated activity of the natural mother.

The trial court expressly determined the natural mother willfully abandoned and neglected the child within the meaning of § 453.040. It was in a far better position than this Court to evaluate the sincerity of the appellant and her excuses. Because there is substantial evidence to support the trial court’s determination and this Court does not have a firm belief that it is against the weight of the evidence, the determination must be sustained.

The judgment is affirmed.

WELLIVER, HIGGINS, GUNN and BILLINGS, JJ., concur.

BLACKMAR, J., dissents in separate opinion filed.

RENDLEN, C.J., dissents and concurs in separate opinion of BLACKMAR, J.

BLACKMAR, Judge,

dissenting.

I believe that the Court of Appeals’ majority reached the right solution to the problem before us and would reverse the judgment terminating the mother’s rights as a parent and allowing the adoption of the child by a stepmother.

The removal of parental rights without consent is a drastic thing, carefully limited by the statutes. We made it clear, in our earlier opinion in this case, In re Adoption of W.B.L., 647 S.W.2d 531 (Mo. banc 1983), that abandonment for the one-year period immediately preceding the filing of the petition must be shown. The evidence before us shows conclusively that, before the petition for adoption was filed, the natural mother took the only steps available to her to repent of any abandonment. She sought to visit the child and was met by an abject, wrongful refusal. Had the visit been allowed, the one-year period of abandonment would have been interrupted. The principal opinion allows the father to profit by his own wrong. Nor can he justify his conduct by saying that he simply followed his attorney’s advice.

The result makes a mockery of the proposition, to which the principal opinion does lip service, that “a parent may repent of abandonment,” and apparently precludes repentance if the other parent has consulted counsel about terminating the repenting parent’s rights. The reiteration of the principle that “adoption statutes are to be construed strictly in favor of the natural parents” likewise has a hollow sound, in view of the result reached. The statute governing this case required a showing that the challenged parent “willfully abandoned” the child. These are strong words. The record does not support the required finding. The principal opinion ignores our unanimous opinion in Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo. banc 1978).

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) does not stand as a bar to reversal. There simply is no evidence to support the finding of willful abandonment during the critical period. The attempted contact, which was frustrated by the father’s refusal, and the subsequent filing of a contempt action, were unequivocal and admitted steps refuting the claim of abandonment. There is no basis for the trial judge’s branding them “half-hearted and token.” Nor can I fault the mother for not persisting in the contempt proceeding when it could be assumed that the present action would lead to a determination of the whole matter in accordance with the law, or for failure to attempt visits while the litigation was pending.

It is idle, furthermore, to pretend that memory of his true mother can be erased from the memory of this 10 year old child. The legislature was wise in enunciating strict standards for abandonment. I doubt that the Court will help matters by relaxing these standards.

The trial judge well might believe that it would be better for the child if the natural mother were completely eliminated from his life and thought. But this is not enough. This is not a custody case. The mother who bore the child has rights, carefully delineated by law. The principal opinion ignores these rights and gives trial judges powers not intended.

      . The 1982 Amendment to this section changed the statutory period of abandonment or neglect obviating consent as follows:
      The consent of the adoption of a child is not required of

      (4) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection;
      ******


author: PER CURIAM.

text:
    In the Interest of M.N.M., a minor, and J.A.M., a minor. Mary A. ELMORE, Juvenile Officer, Respondent, v. S.A.M., Natural Mother, and her duly appointed Guardian, Beverly Sue Ryan, Appellant.
    No. WD 35328.
    Missouri Court of Appeals, Western District.
    Aug. 28, 1984.
    As Modified Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.

      Hollis H. Hanover, Popham, Conway, Sweeny, Fremont & Bundschu, P.C., Kansas City, for appellant.
    Max Von Erdmannsdorff, Von Erd-mannsdorff & Zimmerman, Kansas City, for respondent.
    Before PRITCHARD, P.J., and SOMER-VILLE and KENNEDY, JJ.
   PER CURIAM.

The Juvenile Officer of Clay County initiated proceedings under §§ 211.447.-2(2)(a)b. [“abandonment”], 211.447.2(2)(b) [“neglect”] and 211.447.2(2)(g)a., b. [“mental condition”], RSMo Supp.1983, to terminate appellant’s (hereinafter mother) parental rights in her natural daughter, eleven years old, and her natural son, ten years of age. The natural father consented in writing that his parental rights in both children be terminated. The mother had previously been adjudicated incompetent and was represented by her duly appointed guardian throughout the proceedings.

Separate petitions, differing only in the name of the respective child involved, were filed in the Juvenile Division of the Circuit Court of Clay County on March 29, 1983, alleging in part, with accompanying facts, that the mother had “abandoned” and “neglected” the children “for a period of six months prior to the filing of the Petition[s].” The petition further alleged, in part, that the mother “is so mentally deficient she is unable to form an intent or act knowingly.” Following an evidentiary hearing, the trial court terminated the mother’s parental rights in both children on the basis of all three statutory grounds relied on by the Juvenile Officer. The mother, acting by and through her guardian, has appealed. Doing so, among other things, serves to emphasize the insuperable nature of the maternal instinct and the pathos permeating this particular case.

Three points relied on by the mother on appeal can be aggregately stated — none of the terminal grounds relied on by the trial court were supported by “clear, cogent and convincing evidence.”

Review of judgments terminating parental rights invoke a panoply of stringent rules and principles statutorily and judicially oriented. Collectively, they epitomize a dedicated effort to prevent an arrogation of natural parental rights and the awesome consequences attendant unwarranted termination.

The authority seeking termination of parental rights must prove its case by “clear, cogent and convincing evidence”. Section 211.447.2(2), RSMo Supp.1983. Termination must be in the “best interest” of the child. Section 211.447.2, RSMo Supp.1983. Substantial evidence, that is, evidence which, if true, has probative force, is required to meet the burden of proof resting upon the authority seeking termination of parental rights. In Interest of J.A.J., 652 S.W.2d 745, 748 (Mo.App.1983). Concomitantly, clear, cogent and convincing evidence has been variously described as “that which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition’; evidence which clearly convinces the fact finder of the truth of the proposition to be proved.” Id. 748. Deference is given to the trial court’s assessment of the credibility of witnesses and its judgment will be affirmed unless it lacks substantial evidence for its support, unless it is against the weight of the evidence, or it erroneously declares or applies the law. Juvenile Office of Cape Girardeau County v. M.E.J., 666 S.W.2d 957, 960 (Mo.App.1984); and In Interest of M_ K_ P_, 616 S.W.2d 72, 80 (Mo.App.1981).

A protracted history of the mother’s mental condition plays a dispositive role in this case. The mother had suicidal tendencies as evidenced by the fact she attempted to take her own life on at least two, and possibly three, occasions since early August, 1979. Additionally, she stated on at least one other occasion that she felt “suicidal”. The record is also replete with evidence that the mother had a history of drug and alcohol abuse. Moreover, she was “angry”, “manipulative” and, in response to a need for professional help, had stated she needed “to be relieved of depression and pill popping.”

On December 13, 1982, the mother was “adjudged to be incompetent as defined by the laws of Missouri” by the Probate Division of the Circuit Court of Clay County, Missouri, and the Public Administrator of Clay County, was appointed her guardian. The mother entered the Western Missouri Mental Health Center on the same date and subsequently entered the St. Joseph State Hospital. She was undergoing treatment at the St. Joseph State Hospital when the judgments terminating her parental rights in both children were entered.

Two medical experts testified at the evi-dentiary hearing regarding the mother’s mental condition, and their respective testimony may be fairly summarized as follows. One medical expert testified that the mother’s prognosis was “guarded”, she needed “long-term care”, due to her “past history” she presented a possible “danger” to her children, and if and when she might “come back out into society” was speculative at best. The other medical expert testified that he could not say whether her prognosis would be “consistent”, i.e. that she wouldn’t use “drugs” or “alcohol”, or how she would react to stress, he wouldn’t recommend that she have the two children because it would present too much stress for her, and if she stopped taking “antidepressant medication[s]” there was an “eighty percent probability” her “violent tendencies” and “suicidal thoughts” were “likely to reoccur.” A unanimity of opinion existed between the medical experts as to their ultimate diagnosis of the mother’s mental condition — “atypical psychosis” and “borderline personality disorder.”

Except for brief, sporadic occasions, the two children have been under the custody and control of others (per court order) since the mother’s first suicide attempt in August of 1979.

When the apposite rules, principles and facts heretofore iterated are juxtaposed with points one and two, the conclusion is inevitable that “clear, cogent and convincing evidence” was nonexistent to support termination of the mother’s parental rights under § 211.447.2(2)(a)b. [“abandonment”], supra, and § 211.447.2(2)(b) [“neglect”], supra. The mother’s alleged aberrant conduct must have occurred for a period of “six months or longer ... at the time of the filing of the petition” as to “abandonment”, § 211.447.2(2)(a)b., supra, and for a period of “six months prior to the filing of the petition” as to “neglect”, § 211.447.2(2)(b).

For approximately half of the six-month period prior to the filing of the termination petition in question, the mother was legally adjudicated incompetent, under guardianship, and receiving care and treatment in state mental institutions. For a long period of time prior thereto she was symptomatic, to say the least, of some type of adverse mental condition. Knowledge and intent are prerequisites of “abandonment” and “neglect” and “presuppose a mental capacity sufficient to form such an intent and to knowingly transgress that which is prohibited.” In Re Baby Girl A_, 481 S.W.2d 602, 604 (Mo.App.1972). It defies credulity to say that “clear, cogent and convincing evidence” exists to support termination of the mother’s parental rights in her two children under §§ 211.447.2(2)(a)b. [“abandonment”] and 211.447.2(2)(b) [“neglect”], supra. The extent of the mother’s mental problems for approximately half of the six-month period prior to the filing of the termination petition in question, and for a long standing period prior thereto, decries any semblance of “clear, cogent and convincing evidence” that she possessed adequate mental capacity to form the requisite intent to “abandon” or “neglect” her children in the context of §§ 211.447.2(2)(a)b. and 211.447.-2(2)(b), supra. Per force, termination of the mother’s parental rights in her two children cannot stand on the basis of “abandonment” and “neglect”.

If the juvenile court’s termination of the mother’s parental rights under § 211.-447.2(2)(g)a., b. [“mental condition”] is impregnable, legally and factually, then the judgment of the juvenile court must be sustained even though unsustainable on grounds of “abandonment” and “neglect”. In Interest of Gowen, 610 S.W.2d 319, 320 (Mo.App.1980).

Section 211.447.2(2)(g)a., b. reads as follows: “(g) The parent has a mental condition which: a. Renders him unable to form an intent to act knowingly; and b. Is shown by competent evidence to be permanent or that there is no reasonable likelihood that the condition is reversible, and such parent has substantially and repeatedly neglected the child or failed to give the child necessary care and protection.” (emphasis added) The statute provides alternate avenues to prove the continuing nature of the requisite mental condition.

Beyond peradventure, “clear, cogent and convincing evidence” was adduced to support the finding by the Juvenile Court that the mother suffered from a mental condition which rendered her unable to “form an intent to act knowingly” and that she had “substantially and repeatedly neglected” the children and “failed to give” them “necessary care and protection.”

Whether “clear, cogent and convincing evidence” was adduced to justify the juvenile court’s finding that there was “no reasonable likelihood” that the mother’s extant mental condition was “reversible” poses a more crucial question. Her longstanding conduct symptomatic of a mental condition, her recent adjudication of incompetency and confinement in state mental institutions for care and treatment, and the prognosis of the medical experts, compel this court to conclude that “clear, cogent and convincing evidence” existed to support the finding of the juvenile court that there was “no reasonable likelihood” that the mother’s “mental condition” was “reversible”. The record is permeated with substantial evidence that the mother, unfortunately, was unable to function normally outside a stress free, structured environment. The vicissitudes of every day life presented too much stress for her to cope with or handle. There can be no real or serious doubt that the interests of the two children will best be served by placing them in a normal, consistent environment. Needless to say, every effort should be bent in that direction.

Counsel for the mother, by way of a post appeal motion, implores this court to remand the case to the trial court to hear further evidence regarding prognosis of the mother’s mental condition. The motion was ordered taken with the case. After careful perusal and analysis, this court reluctantly concludes that to grant the motion would only serve to prolong the inevitable to the detriment of both the mother and the children. The contents of the motion are speculative and, at best, fail to dispel the mother’s inability to cope with the inexorable stress associated with parental responsibility. Unfortunately, varying degrees of social stress seem to be the rule rather than the exception in today’s society and halcyon days are largely visions of the past.

Regardless of how much this court may empathize with the mother, it must steel itself and, in accordance with the dictate of the statute, do that which best serves the interests of the children. Accordingly, the respective judgments terminating the mother’s parental rights in the two children are affirmed.

Judgments affirmed.

      . Although separate judgments were rendered by the trial court, the matters were consolidated for trial and for purposes of appeal.


author: PER CURIAM:

text:
    Donald HELMS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35613.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Joseph H. Locascio, Sp. Public Defender, John M. Torrence, Asst. Sp. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
   ORDER

PER CURIAM:

Appeal from denial without an evidentia-ry hearing of Rule 27.26 motion to vacate a jury trial conviction for murder in the second degree and sentence of forty years, entered by the court upon recommendation of the jury.

Affirmed. Rule 84.16(b).