author: LOWENSTEIN, Presiding Judge.

text:
    In re the Interest of A.H., M.H. and A.H., Minors.
    No. WD 35857.
    Missouri Court of Appeals, Western District.
    March 12, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 30, 1985.
    Application to Transfer Denied May 29, 1985.

      Karl H. Timmerman, Kansas City, for appellant.
    Robert B. Paden, Maysville, for respondent.
    Daniel L. Chadwick, Hamilton, Guardian ad Litem.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   LOWENSTEIN, Presiding Judge.

The mother of the three minor children (A.H. a female was born May 14, 1974, M.H. a female was born June 16, 1975, and A.H. a male was born October 19, 1979) is appealing the trial court’s decision to retain actual custody with the aunt (the mother’s sister) and legal custody with the Juvenile Officer. Some preliminary facts are set out below, with the remainder discussed under the other point taken up in this appeal.

May 11, 1980: A fire completely destroys mother’s residence in Jackson County killing her husband and two of her five children. The mother and three children escaped the fire.

June 2, 1980: Mother places surviving children with aunt in DeKalb County. June 12, 1980: Anonymous call to “Child Abuse Hot Line” alleging children had been neglected and abandoned, instigates action by Division of Family Services (DFS) in Jackson County then in DeKalb County.

June 19, 1980: Juvenile Officer of DeKalb County files petition for corrective treatment alleging children had been neglected by being left by legal custodian without care custody or support. The petition stated the children had been in the home of the “sister” since as early as June 2.

July 21, 1980: Hearing before Juvenile judge in DeKalb county; mother waiving right to counsel, admits to having left the children at aunt’s house, and court finds that gives it jurisdiction to transfer legal custody to DFS.

JURISDICTIONAL QUESTION

The first point on appeal is whether the trial court had jurisdiction on July 21, 1980 to transfer custody. A question of jurisdiction may be raised at any time, and a judgment entered without jurisdiction may be collaterally attacked. In Interest of K.K.M., 647 S.W.2d 886, 888 (Mo.App.1983). Furthermore, a juvenile court is a tribunal of limited jurisdiction, whose powers are strictly confined to its statutory authority. While the juvenile court was created to help children, it is equally charged to protect the legal and constitutional rights of the child and its parents. In re K.W.H., 477 S.W.2d 433, 438 (Mo.App.1972). Although in its order the court did not state the statute on which its jurisdiction was based, the language of the pre-printed petition used by the juvenile officer was copied from § 211.031 RSMo 1978, which reads in pertinent part:

1. Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings:
(1) Involving any child who may be a resident of or found within the county and who is alleged to be in need of care and treatment because:
(a) the parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary to his well-being; ...
(b) the child is otherwise without proper care, custody or support;

Since whether the court had jurisdiction in July, 1980 turns on the information the court had before it at the time, this court will not presently consider the complicated series of events which have taken place in the four and one half years which followed. Those facts will be summarized in the other point of this opinion. As mentioned before, the juvenile officer’s petition was by and large a pre-printed form. The only facts typed in consisted of the children’s names and ages, the mother’s name and address, the aunt’s name and address, and the following paragraph:

It is alleged that the natural mother placed [A.H.] and [A.H.] in the home of _, sister, Clarksdale, Missouri, on June 2, 1980 and has since placed [M.H.] in the same home leaving said juvenile’s without legal care, custody and control and the whereabouts of the natural mother being unknown.

The transcript of the July 21 hearing is only seven pages long and the only people who spoke on the record were the mother and the juvenile officer. The mother agreed to proceed without an attorney, and no guardian ad litem had been appointed for the children, the court having noted the children also waived the right to counsel. The. following excerpts show the paucity of evidence before the court:

COURT: ... I do not know the facts and circumstances in this case. The facts as alleged by the Juvenile Officer in his petition stand only as statements and they are not proven. You are not compelled to admit the truth of any allegation. If you do admit the truth of the allegations then I will find that the court should take jurisdiction, and I will determine what is in the best interests of the children, what should be done ... Do you understand what the hearing is all about.
MOTHER: Well, I think so.
* * Jfc * sfs *
COURT: ... I would like to ask you at this time whether or not you wish to admit or deny the truth of the statements in the petition?
MOTHER: Well, I did leave them with my sister.
COURT: As stated then, it’s true?
MOTHER: Yes.
COURT: That you left them with your sister?
MOTHER: She could have found my whereabouts.
⅜ sf: ⅝ $ ⅜
JUVENILE OFFICER: ... It is our understanding that you do have a home in Kansas City, however, haven’t got any appliances there at the present time; is this correct? The natural father is deceased.
MOTHER: May 11th.

At no point in the hearing did the court or juvenile officer ask the mother why she left the children with her sister. While the recent death of her husband was barely touched upon, there was no inquiry into how he died, or any questions about the May 11th fire that also killed two of the mother’s children and totally destroyed the residence and all their personal belongings. The juvenile officer and guardian ad litem here rely on In the Matter of Trapp, 593 S.W.2d 193 (Mo. banc 1980), to invest the juvenile court of DeKalb County with jurisdiction. Trapp stands for the proposition of a neglect petition “couched in the language of the statute” defining jurisdiction is adequate to vest jurisdiction to enter custody orders. Id. at 199-200. Were it not for the petition showing that the children had been left by the mother with her sister, along with the mother’s address, Trapp would control the day on the point of conclusory language in the petition, i.e., the children are neglected within the meaning of the law, provides notice sufficient to invest jurisdiction. The mother contends that the cases of In re Ayres, 513 S.W.2d 731 (Mo.App.1974), and In Interest of Dimmitt, 560 S.W.2d 368 (Mo.App.1977), are dispositive of this point on appeal. These cases stand for the proposition that temporarily placing a child with an extended family member during a period of strife does not amount to neglect or abandonment by the natural mother.

In Ayres, the mother fled the family home because her husband had savagely beat her. A nine month old daughter was placed with friends of the family where she stayed for about eight years. There was no controversy that during this entire period the mother visited her daughter as often as she could. When the mother finally tried to get her daughter back, the friend prevailed upon a juvenile officer to file a neglect petition and the trial court placed the child under control of the Division of Welfare.

The Eastern District of the Court of Appeals reversed saying it would be setting “a dangerous precedent of charging the parents with neglect and depriving them of the natural custody of their children if every time parents placed the physical custody of their children with a surrogate or a member of their extended family because of a temporary inability ... to provide for their children.” 513 S.W.2d 735. The court went on to say “when tragedy strikes and the parents are beleaguered by problems beyond their control, in our opinion, a placement with a more fortunate relative or concerned friend would appear to be the best thing reasonable, concerned, caring parents could do for their children.” Id. The eastern district has also held where there is good cause because of a temporary situation, a parent may leave a child in the custody of a third party without abandoning the child. H.D. v. E.D., 629 S.W.2d 655, 658 (Mo.App.1982).

This court followed Ayres in Dimmitt where a father was trying to regain children placed with the maternal grandparents when the now deceased mother had suffered mental health problems. There, as in the present case, the children’s needs and wants were being supplied prior to and at the time the neglect petition was filed. The minor children were not “in need of care and treatment.” 560 S.W.2d at 372. This court also pointed out that “the right of natural parents to have custody of their minor children, unless their welfare is manifestly jeopardized by reason of parental unfitness, is considered inviolate and vigilantly guarded.” Id. at 371. This court concluded in Dimmitt that the evidence totally failed to support the exercise of jurisdiction by the juvenile court under § 211.031(l)(a) and ordered the custody be returned to the natural father.

The facts in the present case fall under the holding of Ayres and Dimmitt. When tragedy struck, the mother sought help from family members. The aunt voluntarily consented to take in the three children, then ages 6, 4 and 6 months. In a later hearing, the aunt complained that the children were left without food, clothing or money. But a fire had only two weeks before destroyed all the family’s possessions. They had nothing to bring with them. The mother had no job, no car, no money, and was under the emotional stress from the loss of her two children and husband.

To assert jurisdiction, the juvenile court must find clear and convincing evidence the child is in need of care and this need is because of the parent’s neglect. In Interest of K.H., 652 S.W.2d 166, 167 (Mo.App.1983). Even giving due deference to the trial court and even with the mother admitting the allegations of the petition, there was no clear and convincing evidence that the children were in need of care and that this need had arisen because the mother neglected to provide the care necessary for the children’s well-being. When the only allegation on the face of the petition is that a parent has left children with an extended family member or concerned friend, the trial court should be on notice to inquire into the reasons, and if there are extenuating circumstances, as there clearly were here, the trial court has no basis on which to exercise jurisdiction to remove custody from the mother. The petition and evidence did not show the mother had dropped off the children and left for parts unknown. An address for her was on the petition and service was immediately had on her. She showed up in court and testified her sister knew where she was. See In Interest of R.S.P., H.D.P. and C.M.P., 619 S.W.2d 863 (Mo.App.1981). This is not to say that a petition filed later, showing that the children were living with the sister without contact or help by the mother and with no excuse or reason for an extended and indefinite stay, backed up by supporting evidence would not invoke court jurisdiction. The infirmity here is the evidence, or lack thereof, did not support a case of neglect sufficient to entry of an order changing custody on July 21, 1980.

REVIEW OF SUBSEQUENT ORDERS

Had not the jurisdictional infirmity been present, and based on the standard of review in In the Interest of M.N.M., 681 S.W.2d 457, 459 (Mo.App.1984),

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,

and based on the overriding concern stated in In re B.G.S., 636 S.W.2d 146, 148 (Mo.App.1982),

The general rule that natural parents have a primary right to the custody of their children is controlling when it is consistent with the welfare of those children. This is so because the rule favoring natural parents stems from the presumption that maintaining the natural parent/child relationship is best for the child. When in conflict, however, the rule favoring parental custody is superseded by the concerns of the state for the child’s welfare,

this court would have still reversed.

The following series of events happened after the July 21, 1980 order.

September 10, 1980: Mother signs 6 month service agreement with Jackson County DFS which spelled out four points with which mother should comply to regain custody of children.

October 3, 1980: DeKalb DFS informed Jackson DFS that aunt wished to adopt children and hoped mother would voluntarily terminate parental rights.

June 17, 1981: Mother signs second service agreement.

April 12, 1982: Mother signs third service agreement.

January 3, 1983: Mother signs fourth service agreement.

February 4, 1983: Mother obtains legal counsel.

April 21, 1983: Mother files motion to transfer.

April 28, 1983: Supervision of children to Jackson County.

May 12, 1983: Mother remarries. Mother asks for accounting of children’s social security money which was being diverted to DFS.

May 18,1983: Guardian ad litem appointed.

June 6, 1983: Hearing held — transfer refused; court requested psychological evaluation of mother and independent third party study of mother’s home.

August 3, 1983: Home study recommending return of children filed with court.

August 12, 1983: Favorable psychological evaluation on mother filed with court. The children are now 9, 8, and 3.

August 30, 1983: Mother files Motion for Modification.

October 13, 1983: Hearing held; return of children denied.

November 29, 1983: Mother files Motion to Dismiss.

December 8, 1983: Mother files Motion for Finding of Fact & Conclusions of Law; hearing held; motions denied; court on own motion transferred custody from DeKalb DFS to juvenile officer.

This appeal is from the December 8 order and, by special order also from the October 13 order. The evidence favorable to the court keeping the children with their aunt discloses the 26 year old mother to have been emotionally distressed after the fire. Her activities were less than favorable. She did not visit or call the children and did not carry her end of the bargain and many of the service agreement requirements. Although without job, money or a car, her inability to make the approximately one hour and thirty minute trip to. DeKalb County from Kansas City may be partially explained. In April, 1983 the mother married a man who has six children and is now working on his fourth marriage. Since early in the matter the numerous workers from the Jackson County DFS have worked for and testified for the return of the children to the mother. The DFS worker in DeKalb has opposed such action. DFS in DeKalb County never made a home study on the mother. Exchange of reports and interchange of information between the two offices was nil.

At the October 13 hearing the guardian ad litem said the children should be returned to the mother but with supervision from DFS. The juvenile officer of DeKalb County made the same recommendation.

At no time was the sister’s home ever disparaged as to treatment of the children. The two oldest children made repeated requests to return to their mother.

At the time of the October 13 hearing the studies on the mother were favorable. She had been regularly visiting the children. She lived in a large house in Independence, Jackson County, with her husband. The fear of DeKalb DFS about “instability” of her marriage had not materialized, and the lifestyle of the mother and her husband, although causing concern, did not rise to the level to keep custody from the mother. She had by that time the ability to care for the children. The fact of a good home at the aunt’s is not dispositive. In re I.M.J., 428 S.W.2d 18, 28 (Mo.App.1968). To that extent the orders of October and December 1983 were subject to reversal.

Unfortunate to the disposition of this matter are the following facts. The mother, married at age 16 had 5 children and a husband who did not treat her well. The mother’s limited education and emotional maturity have hurt. So has the fact that a guardian ad litem was not appointed until May of 1983. The mother never had counsel until April of 1983. The mother’s new husband (April 1983) has 6 children of his own living with them (2 out of wedlock born within 2 weeks of each other), and is less than an ideal husband. The mother’s earlier lack of funds, a car, and emotional distress have made her to appear somewhat unconcerned about her children. Most troubling has been the conduct of DFS. The DeKalb office has throughout this long period steadfastly ruled against the mother while never visiting her home or even accepting Jackson County’s reports. The Jackson County DFS has been plagued by a constant turnover of caseworkers handling the file. That office has, since the early days of the situation recommended the children’s return to the mother. The lack of cooperation between the two offices of the same department and the resulting competition between the two sent mixed signals to all who had to make a decision as to what to do with the children. The guardian ad litem correctly requested the court to have someone other than these offices handle further studies and evaluations. The confusion and delay caused by the DFS rivalry put an extra burden on the guardian ad litem. The guardian ad litem made a recommendation for return to the mother after participating in the hearings but did not appeal the adverse final ruling nor initially file a brief. As confusing and unique as the facts are in this case, his advocacy on behalf of the children should extend to brief and argument on appeal. Otherwise, his duties were performed under the standards listed in In Interest of J.L.H., 647 S.W.2d 852, 860-61 (Mo.App.1983).

To further confuse matters, the juvenile officer and the guardian ad litem who at trial both ultimately recommended return, with conditions, to the mother, have filed briefs which advocate affirming the trial court orders or granting an additional hearing. These contentions are denied. The mother’s point concerning error in allowing the sister and her husband, as foster parents, to present evidence does not require a decision in view of the disposition.

The long and short of this situation is the mother has received a more than complimentary home study by an independent person. She has received a clean bill of health on her mental condition. She has a home, a car, and a longstanding intent to reunite her family. She has everything but her children. It is time to end the intramural fight between the mother and her sister. It is also hoped the county offices of DFS can approach the important matters of recommendation and investigation of child custody with more eollegiality. •

The judgment of the trial court is reversed and remanded with instructions to set aside and hold for naught the order of neglect resulting in wardship and control over A.H., M.H. and A.H., of July 21, 1980, and all custody orders entered pursuant thereto, and to dismiss the petition calling for same. The Juvenile Officer of DeKalb County is to take the three minors, within three days from and after receipt of this opinion, from the home of the aunt, the foster home, and deliver them to the home of the mother. No costs.

All concur.

      . The judge who heard this portion of the case was not involved in the hearings later mentioned.

      . Section 210.110, et seq. concerns child abuse and neglect and its reporting to the authorities by a “hotline”. The definition of neglect is similar to the portion of § 211.031 applicable here for a determination of change of custody. Section 210.160 1.(1) mandates in “every" case involving a judicial proceeding involving a neglected child under § 210.110, "the judge shall appoint a guardian ad litem to appear for and represent” the child.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Milton Russell SCHEPP, Appellant.
    No. WD 35882.
    Missouri Court of Appeals, Western District.
    March 12, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 30, 1985.
    Application to Transfer Denied May 29, 1985.

      J. Martin Hadican, Clayton, for appellant.
    John Ashcroft, Atty. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER, and MANFORD, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a jury conviction for conspiring to commit capital murder, in violation of § 564.016, RSMo 1978.

Judgment affirmed. Rule 30.25(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert NELSON, Appellant.
    No. WD 35932.
    Missouri Court of Appeals, Western District.
    March 12, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 30, 1985.
    Application to Transfer Denied May 29, 1985.
    James W. Fletcher, Public Defender, David S. Durbin, Asst. Public Defender, 10th Floor, 415 East 12th Street, Kansas City, for appellant.
    William L. Webster, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   PER CURIAM.

ORDER

Appeal from conviction for robbery, first degree, in violation of § 569.020, RSMo 1978.

Judgment affirmed. Rule 30.25(b).


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert BRANOM, Defendant-Appellant.
    No. 48865.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, Asst. Public Defender, St. Louis, for defendant-appellant.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KELLY, Judge.

Robert Branom, appellant, brings this appeal from a conviction of statutory rape, § 566.030.3 RSMo 1978, after a trial by jury and sentencing as a persistent offender, § 558.016, by the trial court, to twenty (20) years in the custody of the Missouri Department of Corrections. On appeal he raises one Point Relied On as grounds for reversal of his conviction; i.e. that the trial court abused its discretion in allowing the prosecutor to ask leading questions of the thirteen (13) year old prosecutrix because said questions were improper and prejudicial to the appellant in that said questions suggested the answers and concerned a crucial element of the rape charge, namely penetration. We affirm.

Appellant does not challenge the sufficiency of the evidence to support his conviction. Therefore it will suffice to state that the jury could, and obviously did, find from the evidence that on September 17, 1983, Robert Branom raped his niece, who was then thirteen years of age, in the City of St. Louis.

A person commits the crime of rape if he has sexual intercourse with another person to whom he is not married and who is less than fourteen years of age, § 566.030. Section 566.010 defines “sexual intercourse” as “... any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results.”

Appellant argues, and we agree, that penetration is a crucial element in a charge of rape. He also contends that leading questions propounded to the victim were improper and prejudicial to appellant because of their suggestiveness and because they concerned a crucial element of the crime of rape. The questions of which complaint is made are the following:

Q: Did your clothes get taken off?
A: Yes.
Q: Did you take them off?
A: No.
Q: Did [defendant] take them off?
A: Yeah.
Q: You said that he had his clothes on. Do you know where? Around his ankles or where?
A: To his knees.
Q: Did he get on top of you?
A: Yes
******
Q: Did your uncle do anything with his penis? Did he do anything with his penis?
A: Yes
Q: What did he do? Don’t be embarrassed, just kind of say it. Did he get on top of you?
A: Yes
Q: When he got on top of you, what did he do with his penis? Did he put it in you?
[Defense Counsel]: Your Honor, if we can approach the bench for just a minute.
THE COURT: Sure.
(The following proceedings took place at the bench, out of the hearing of the jury.)
[Defense Counsel]: I realize that it’s hard for her to testify about this, but I’m going to object particularly in this area of this line of questioning to any leading form because it goes to the direct heart of what happened here and I believe it may be difficult for her to get it out, but the prosecutor’s had an opportunity to speak with her and I don’t believe he should be allowed to do it. It’s too important of a part of the charge.
[Prosecutor]: Okay. I have gone over it with her. She’s been hesitant, as any young girl would be, to mention these terms, but she has done it of her own volition, done it in the past. I’m trying to establish that.
THE COURT: The objection is overruled. Let’s proceed.
(The proceedings returned to open court.)
Q: (Prosecutor)...., did he put his penis in your vagina?
A: (Witness nods.)
Q: Can you say that into the microphone?
A: Yes.

In general a trial court has wide discretion in permitting leading questions and much depends upon circumstances and the subject matter of the questions. Hesse v. Wagner, 475 S.W.2d 55, 62[8] (Mo.1971). In a jury trial in a statutory rape prosecution where the prosecutrix is reluctant to testify or appears to be timid or in fear, the trial judge is permitted to exercise discretion in allowing leading questions to be propounded to her. State v. Palmer, 306 S.W.2d 441, 443[3] (Mo.1957); State v. Leigh, 580 S.W.2d 536, 541[5] (Mo.App.1979).

Our review of the transcript convinces us that the trial court did not abuse its discretion in permitting the leading questions to the prosecutrix. Much of the prosecutor’s examination of the prosecutrix involved leading questions, to which she responded with a single-word answer or a nod of the head. It is clear from the transcript that she was distraught and hesitant about testifying against her uncle. Shortly after her testimony set out hereinabove the trial was recessed because she was crying on the witness stand.

Furthermore there was other evidence that she had been penetrated. A medical records technician from City Hospital testified that according to the report of the victim’s post-rape examination her hymen was not intact and was lacerated, and that she suffered muscular pains in the area of the vagina-vulva. A criminologist for the St. Louis Metropolitan Police Department, testified that the presence of human sperm was found in a vaginal smear taken from the prosecutrix at the City Hospital. He also testified that seminal fluid was found on the prosecutrix’s underpants. From a saliva sample taken from the appellant he determined that the appellant was a Type A secreter, the same type of secreter as the person who left the seminal fluid stain in the victim’s underpants.

Under the circumstances of this case we hold that the trial court did not abuse its discretion in allowing the prosecutor to ask the leading questions of which appellant complains and we affirm the judgment of the trial court.

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

      . All statutory citations are to RSMo 1978.


author: LOWENSTEIN, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricky CARTER, Defendant-Appellant.
    No. 48898.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
    Application to Transfer Denied May 29, 1985.

      Frank A. Rubin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Henry Robertson, St. Louis, for defendant-appellant.
   LOWENSTEIN, Special Judge.

Carter was charged with two counts of rape and two counts of sodomy, involving one victim, Anita Walker. He was found guilty on one count of forcible rape. Prior convictions of forcible rape led to his sentence as a persistent sexual offender, § 558.018 RSMo (Supp.1983) of thirty years. The incident occurred at the house of Larry Walker, a friend of Carter’s. The victim had accepted a dinner date from Carter whom she’d met a year before when he aided her after a car accident. The two smoked marijuana and danced until, without warning, Carter threw Anita to the floor and threatened her with a hammer which Anita said had a wooden handle and a metal head. The victim was compelled to engage in acts of intercourse and oral sex with Carter, as well as Larry Walker and three other men who appeared on the scene.

Carter’s first point on appeal concerns testimony of a police officer. Larry Walker was not a witness in this case, but had turned over to police a wooden hammer handle without a head. At trial the officer was asked why he did not enter Larry’s house. In response he said: “It was his residence and at the time we did not have a search warrant but he said he would obtain the weapon that was used during the incident and return it and bring it to us.” Carter immediately moved to strike that answer as inadmissible hearsay and to instruct the jury to disregard it. The court sustained the motion and so instructed the jury. Carter did not ask for a mistrial at the time but now contends the statement was so prejudicial as require a new trial.

At trial Carter got all the relief he requested. Had the court overruled his objection (as in State v. Blocton, 394 S.W.2d 323 (Mo.1965) or had Carter requested a mistrial (as in State v. Rayner, 549 S.W.2d 128 (Mo.App.1977)) the standard of review would be more exacting. But here the only review would be under plain error, Rule 29.12(b) where this court must find that manifest injustice or miscarriage of justice had resulted. The Missouri Supreme Court faced a similar situation in State v. McIlvoy, 629 S.W.2d 333, 340 (Mo. banc 1982). There a defendant objected to the state’s argument and asked that the jury be instructed to disregard it. However, he did not ask for a mistrial. The supreme court said that even though the objection was technically “not expressly ruled upon”, the appellant was nevertheless granted all of the relief which he requested. Furthermore, the trial court did not commit plain error by not declaring a mistrial sua sponte. The same is true in the present case, and so Carter’s point is denied.

Carter’s second contention is that it was reversible error to allow the state to argue a negative inference from his failure to subpoena medical experts to support his evidence and argument. At trial the only medical testimony came from two nurses. The state called the examining R.N. who took the requisite samples from the rape victim. Because the victim had been forced to douche, no semen was present in the sample. On cross-examination the R.N. admitted that a douche only rinses out the vagina and any fluid in the uterus would be free to flow back into the vagina. Carter called Larry Walker’s mother as a witness who also happened to be an L.P.N. She also testified that whatever can go up into the uterus can come down at any time.

From this testimony, Carter concluded in closing argument that there was no proof of rape beyond a reasonable doubt. Counsel told the jury since no semen was present, and no signs of trauma were showing there could be no corroboration of a rape. Counsel argued, “she couldn’t have douched away what she said happened to her, not at that point, never.” In rebuttal the state argued “we got doctors all over this town and did one of them come in here and tell you, yes, if you wait an hour these sperm will seep back and then you take another sample. Did you hear that? You didn’t hear that. She’s got subpoena power just like I do.” (Referring to Carter’s defense counsel.)

The court stated in State v. Stamps, 569 S.W.2d 762 (Mo.App.1978) that prosecutors are permitted wide latitude to reply to defense counsel’s argument which is directed to discredit the state’s case. In fact an otherwise improper comment by a prosecutor may be admitted if the retaliatory argument was invited by defense counsel’s assertions. State v. Simms, 639 S.W.2d 105, 110 (Mo.App.1982). Carter’s reliance on State v. Chunn, 657 S.W.2d 292 (Mo.App.1983) is misplaced, as the state’s closing argument included a direct reference to the accused’s failure to testify, and also to facts not in evidence. The trial court’s broad discretion in permitting the use of retaliatory remarks was not abused in this case. State v. Stamps, supra, at 769. This point is also denied.

The judgment is affirmed.

SIMON, P.J., and STEPHAN, J., concur.


author: SMITH, Presiding Judge.

text:
    STATE of Missouri Plaintiff-Respondent, v. Louis Anthony WORKES, Defendant-Appellant.
    No. 48546.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 26, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
    Application to Transfer Denied May 29, 1985.

      Henry B. Robertson, St. Louis, for defendant-appellant.
    John D. Ashcroft, Jefferson City, for plaintiff-respondent.
   SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury for forcible rape, forcible sodomy, kidnapping, and robbery in the second degree. He was sentenced to a total of 80 consecutive years by the trial court. We affirm.

On appeal defendant challenges his convictions of robbery and rape on the basis that no submissive case was made. He also postulates error in the admission of evidence concerning the victim’s physical response upon viewing lineups. Some statement of the facts is required.

The victim had gone to her place of employment at a Hardee’s Restaurant in Ma-plewood. She arrived there at 4:20 a.m. and was sitting on the curb waiting the arrival of the manager to open the building. Defendant and his co-defendant, Meyer, approached her in a truck. After some perfunctory conversation defendant got out of the truck and grabbed the victim around the neck. She was forced into the truck between the two men. Defendant drove the truck to a park in the City of St. Louis. While en route the victim was forced to perform fellatio on each man. Upon arrival in the park the victim was removed from the truck by Meyer and taken to a tree. There the victim was again forced to perform fellatio but after a short time Meyer abandoned that activity and had sexual intercourse with the victim. Upon completion of Meyer’s activities defendant arrived from the truck and forced the victim to complete his “blow job.” After this had been accomplished the victim and defendant returned to the truck. The victim was returned to her place of employment with a warning not to report the incident. She subsequently discovered that $10 had been removed from her purse. The purse had been constantly in her possession except for the time she was out of the truck. Meyer and defendant were not present together with the victim in the park while she was out of the truck.

Defendant admitted his presence at the scene but denied having any sexual relationship with the victim and testified she willingly entered the truck and went into the park with Meyer. The co-defendant, Meyer, testified that the victim, previously unknown to him, willingly entered the truck, willingly went with him into the park, initiated an act of fellatio and willingly had intercourse with him. Witnesses testified that the victim was agitated and crying at the restaurant, at the hospital and after release from the hospital.

Defendant first contends that the evidence failed to establish that the taking of money from victim’s purse was as a result of violence or threat of violence and that at most stealing was proven. It is a reasonable inference from the evidence that the money was taken while the victim was out of the truck with one of the co-defendants. Sec. 569.030 RSMo 1978, provides that a person commits robbery in the second degree when he “forcibly steals property.” “Forcibly steals” is defined in Sec. 569.010 RSMo 1978, as “when, in the course of stealing, ... he uses or threatens the immediate use of physical force upon another person for the purpose of: (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking;” (Emphasis supplied). It is not necessary that property be taken from the immediate physical presence of the victim in order to constitute robbery. State v. Atkins, 549 S.W.2d 927 (Mo.App.1977) [1-7]. Nor is it necessary that the force or threat of force immediately accompany the taking. State v. Harris, 622 S.W.2d 742 (Mo.App.1981) [3, 4]. It is not essential that the victim be aware of the robbery if force is utilized to render her unaware of the taking. State v. Williams, 548 S.W.2d 227 (Mo.App.1977) [1-3].

Here the victim was placed into the truck through force and threat of violence. She was removed from the truck and taken into the park in the same way. That force served to prevent her resistance to the taking of the money. That force or threat of force continued while she was in the park. Defendant was aware of this. Without the force neither co-defendant would have had the opportunity to steal the money. Under the circumstances here the stealing of the money constituted robbery as it occurred while the victim was under the threat of force, and that force made her unaware of the theft.

We similarly reject defendant’s contention that the evidence was insufficient because it did not establish an intention to rob at the time force was first exercised— when the victim was abducted. The force continued from the beginning to the end of the episode and the formation of the intent to steal occurred during the continuation of that force and in reliance on that force. The state made a submissible case of robbery in the second degree.

Defendant next contends that the rape charge was not established because the evidence indicated that when Meyer took the victim into the park he intended to commit sodomy not rape. Defendant therefore posits that his liability as an aider and abettor was not proven under Secs. 562.036 and 562.041 RSMo 1978, because he did not aid Meyer in committing the rape. It is true that a culpable mental state must be found for all offenses for which the defendant is to be held liable. State v. Logan, 645 S.W.2d 60 (Mo.App.1982) [2]. But we think it too broadly states the proposition to require the evidence to establish a defendant’s specific knowledge of which particular crime his co-participant will commit. The courts have held that culpable mental state may be inferred from the circumstances. State v. Turner, 623 S.W.2d 4 (Mo. banc 1981) [3, 4]; State v. Millican, 641 S.W.2d 144 (Mo.App.1982) [3]. That is simply a way of expressing the concept that if a defendant has embarked upon a course of criminal conduct with others, he is responsible for those crimes which he could reasonably anticipate would be a part of that conduct. State v. Logan, supra.

Sec. 562.041 defining responsibility for criminal conduct states a person bears criminal responsibility when

“(2) either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.” (Emphasis supplied).

The utilization of the indefinite article “an” to describe the offense when dealing with the required purpose, i.e. mental state, reflects the statutory intention to place accountability in a co-participant for the specific crime committed by another as part of the criminal activity. Here the victim was subjected to assaultive conduct — kidnapping and forcible sodomy — prior to arrival in the park. It is certainly inferable that her removal from the truck by Meyer was with the intent to commit further assaultive acts. Rape is such an act. It is frequently a companion act to forcible sodomy. Defendant assisted Meyer in bringing the victim to the park and in assaulting her on the way there. He was aware that she would be further assaulted by Meyer in the park. He had the culpable mental state to assist Meyer in assaulting the victim. That he may have believed that that assault would be directed to a different orifice than it was in no way relieves him of responsibility for the assault which actually occurred. The evidence was sufficient to support the conviction of rape.

Defendant’s final point challenges the admissibility of testimony of a police officer that at lineups on the same day as the assaults the victim backed away as she pointed out the defendant and Meyer. It is contended that this constituted hearsay. Identification was not an issue in the case; defendant admitted his presence. The testimony that the victim pointed out defendant and Meyer in the lineups, if hearsay, could not have been prejudicial. Because the litigated issue was consent, the victim’s recoil at seeing defendant and Meyer could be perceived as indicating fear or revulsion and therefore was probative on the consent issue. But the act of the victim in backing away was not intended as an assertion of fact. It was rather a spontaneous reaction and its description by the police officer was not hearsay. State v. Abram, 632 S.W.2d 60 (Mo.App.1982) [7]. The evidence was properly admitted.

Judgment affirmed.

SNYDER and SATZ, JJ., concur.


author: KAROHL, Judge.

text:
    David R. WILES, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 48602.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
    Application to Transfer Denied May 29, 1985.
    William J. Shaw, Asst. Public Defender, Clayton, for movant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   KAROHL, Judge.

Defendant appeals trial court’s denial of 27.26 relief after evidentiary hearing. Two consecutive life terms were imposed according to a written plea agreement wherein capital murder charges were reduced to second degree murder. As a part of the plea agreement two consecutive fifteen year terms were imposed on previous and unrelated sodomy charges after defendant waived probation revocation hearings.

The 27.26 petition alleged that the pleas were not made knowingly, intelligently and voluntarily and with a full understanding of the consequences because of mental defect and the improper coercion of defendant by his trial attorney. The trial court found these grounds were not supported by the record. We affirm.

When the involuntariness of mov-ant’s plea is based on being misled by counsel, the test is whether movant’s belief by which he claims to have been misled, was reasonable. Bierey v. State, 586 S.W.2d 450, 452 (Mo.App.1979). The burden rests upon appellant to show by a preponderance of the evidence that his guilty plea was not knowingly and voluntarily given because of ineffective assistance of counsel. Van Moore v. State, 667 S.W.2d 470, 471 (Mo.App.1984). The judge is the trier of fact in a post-conviction motion for relief, and as such determines credibility of testimony. State v. Gamble, 649 S.W.2d 573, 577 (Mo.App.1983).

The defendant contends that his plea was not made knowingly, intelligently and voluntarily because of a mental defect and the improper coercion on the part of his counsel at trial when he made his plea. The trial court made findings of fact and conclusions of law which are as follows:

The court finds with respect to paragraphs 8 and 9 [defendant’s allegations of counsel’s ineffective assistance] that the allegations contained therein are refuted by the record ... This court further finds that the testimony of movant presented at the hearing was not believable and/or refuted by the record.
Petitioner stated under oath that he never believed himself to be mentally ill ... The court was in possession of the pre-trial psychiatric report on movant which found no mental disease or defect and found he was competent to understand and assist in his defense ... Mov-ant stated he was satisfied with his attorney’s services, had discussed the case fully with him, and believed his attorney had obtained a good deal for him ... Movant had also discussed this case with his father who was present during the plea and sentencing ... Upon further questioning movant responded that he had no defense to the charge and was in fact guilty ... As to Count II, movant agreed that the state had sufficient evidence to show that he had murdered his son ... Finally, movant stated that he wished to waive his right to a suppression hearing on his statements and admitted that they were freely and voluntarily given ...
The Court finds that movant’s plea was knowingly, intelligently and voluntarily made with full understanding of the consequences thereof. The record of the plea and sentencing show conclusively that petitioner is not entitled to any relief under the Constitution of the United States or of Missouri in that petitioner has not stated any grounds upon which relief can be granted.

We conclude that the trial court’s findings of fact and conclusions of law are supported by the record.

Judgment affirmed.

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


author: PER CURIAM

text:
    STATE of Missouri, Respondent, v. Clyde Willis HAZLEY, Jr., Appellant.
    No. 48837.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
    Application to Transfer Denied May 29, 1985.
    William J. Shaw, Clayton, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM

Defendant, Clyde Willis Hazley, Jr., appeals from his conviction, after a jury trial, of burglary in the first degree. He was sentenced as a persistent offender to a term of imprisonment of twenty-five years. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


author: KENNEDY, Presiding Judge.

text:
    Donna Marie WRIEDT, Appellant, v. Dennis L. CHARLTON, Respondent.
    No. WD 36035.
    Missouri Court of Appeals, Western District.
    March 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 30, 1985.
    Application to Transfer Denied May 29, 1985.
    Richard C. Thomas, Columbia, for appellant.
    Louis J. Leonatti, Mexico, for respondent.
    Before KENNEDY, P.J., and DIXON and LOWENSTEIN, JJ.
   KENNEDY, Presiding Judge.

This is an appeal from an order dismissing plaintiff’s wrongful death action as barred by the three-year statute of limitations, § 537.100, RSMo Supp.1979, after an evidentiary hearing on defendant’s motion to dismiss.

We affirm.

The wrongful death action accrued on October 14, 1979, when Robert E. Wriedt died from injuries sustained while he was a passenger in a car driven by defendant. Plaintiff was decedent’s wife. Her petition was filed in the Circuit Court of Macon County on September 3, 1982, within the three-year limitations period. The summons was sent to Platte County, to be served upon the defendant at the address furnished by plaintiffs attorney. Plaintiffs then attorney had gotten the address from the highway patrol report of the accident. The summons was returned non est. The return gratuitously noted: “By finding the defendant has not lived at given service address for at least two years as per present resident.”

Plaintiffs attorney, perhaps not having seen the gratuitous information contained in the first return, had the summons sent to Jackson County for service upon the defendant at the same address as the first. This was returned non est.

A third (pluralis) summons was sent to Clay County for service upon defendant at another address. This proved to be the address of one Dennis E. Charlton, but not defendant. So once again there was a non est return. This final non est return was made on February 24,1983, and apparently filed in the clerk’s office on March 7.

The testimony of plaintiffs then attorney varies somewhat from the foregoing in details, but not in any essential matter. The foregoing chronology is taken from the court file.

Plaintiffs attorney testified that he then wrote two or three letters to plaintiff, seeking authority to hire a private investigator to track down the defendant. These letters were returned undelivered. He also attempted on a couple of occasions to reach her by phone but was unsuccessful.

A new attorney for plaintiff had another summons issued on April 20,1984, and sent to Clay County for service upon the defendant at an Excelsior Springs address. Service was duly accomplished on April 24.

An affidavit filed by defendant states that at the time of the accident he lived at what we take to be the address contained in the accident report. He later moved to an address in Platte Woods, and after that he lived successively at three different Excelsior Springs addresses. He was served with process at the last of these addresses.

A petition is timely filed and is not subject to dismissal upon statute of limitations grounds if it is filed within the statutory limitations period, even though summons is not served upon the defendant until after the expiration of the limitations period. Emanuel v. Richards, 426 S.W.2d 716, 718 (Mo.App.1968). This rule is subject to this qualification, that the plaintiff must use due diligence in effecting service. If he does not use due diligence in effecting service, the statute continues to run and the cause of action will be barred. As the court said in Votaw v. Schmittgens, 538 S.W.2d 884 (Mo.App.1976):

Whether a plaintiff has exercised due diligence must be decided on a case by case basis_ It is not possible to satisfactorily state any general standards by which it may be determined when and under what circumstances one’s lack of due diligence to proceed in the issuance of process may amount to a discontinuance of the action or destroy the effectiveness of a pending proceeding. (Citations omitted.)

538 S.W.2d at 886.

The service of process apparently was neglected from March 7,1983, the date of the filing of the last (the third) non est return until April 18, 1984, when the summons was gotten out which was served upon the defendant — a space of more than 13 months. Whether this neglect was the fault of plaintiff’s attorney in not pursuing the matter more diligently, or the fault of plaintiff herself in not keeping her attorney advised of her whereabouts, or a combination of both, it is not necessary for us to decide. The record is insufficient for that, anyway. The attorney’s neglect, if any, was chargeable to the plaintiff. We would not overturn the trial court’s decision in this case; there is ample evidence to support the finding of lack of due diligence on plaintiff’s part in effecting service of process on defendant. We give deference to the trial court’s decision. See Continental Electric Co. v. Ebco, Inc., 375 S.W.2d 134 (Mo.1964); Driscoll v. Konze, 322 S.W.2d 824, 829 (Mo.1959); Daniels v. Schierding, 650 S.W.2d 337, 339 (Mo.App.1983); Atkinson v. Be-Mac Transport, Inc., 595 S.W.2d 26, 28-29 (Mo.App.1980); Hennis v. Tucker, 447 S.W.2d 580 (Mo.App.1969).

Judgment affirmed.

All concur.

      . Daniels v. Schierding, 650 S.W.2d 337, 339 (Mo.App.1983); Atkinson v. Be-Mac Transport,

        Inc., 595 S.W.2d 26, 28-29 (Mo.App.1980).

      . Detroit Tool & Engineering Co. v. Martin, 641 S.W.2d 177, 179 (Mo.App.1982); Meyer v. Vinson, 448 S.W.2d 316, 317-18 (Mo.App.1969).


author: PRITCHARD, Presiding Judge.

text:
    GELCO EXPRESS CORPORATION and Insurance Company of North America, Appellants, v. R. Richard ASHBY, Respondent.
    No. WD 35955.
    Missouri Court of Appeals, Western District.
    April 9, 1985.

      Paul Scott Kelly, Jr. and Linda V. Gill, Kansas City (Gage & Tucker, Kansas City, of counsel), for appellants.
    Paul E. Vardeman, Kansas City (Polsinel-li, White & Vardeman, Kansas City, of counsel), for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and DIXON, JJ.
   PRITCHARD, Presiding Judge.

This is a suit by Gelco Express Corporation to enjoin respondent Ashby from competing with Gelco in its business as an intrastate courier of time-sensitive documents and small packages which are required to be delivered by specific deadlines, usually less than 24 hours from the time of pickup.

The trial court, having issued ex parte a temporary restraining order, dissolved it; denied a preliminary injunction; and entered judgment against Gelco on its claim for permanent injunction; and for Ashby on his counterclaim for damages against Gelco and Insurance Company of North America on the temporary restraining order bond for $12,469.55, and $14,583.97 for Ashby against Gelco for severance pay and other post-termination benefits.

Ashby had been employed by Gelco, or its predecessor companies, including Bankers Dispatch, for 22 years. In the fall of 1982, Ashby became dissatisfied with the manner in which Gelco was being run by upper management, and an employment contract was negotiated, effective February 1, 1983, which provided for a “term” of employment for the entire period of Ash-by’s employment and 24 months thereafter; an initial period of one year from February 1, 1983 to January 31, 1984, was provided; and this clause (the applicability of which is in controversy) was included: “1. (d) This one year period of employment shall auto?; matically be renewed on its anniversary date for an additional one (1) year period on the same terms and conditions contained herein, unless notice in writing is given by either party of its intention to terminate or renegotiate the terms and conditions hereof, not less than thirty (30) days prior to said anniversary date.” Paragraph 3 provided for a covenant of Ashby not to compete during the term (24 months) with any of the types of businesses in which Gelco was engaged [transportation of time-sensitive and non-time sensitive commodities by motor carrier, aircraft and forwarding pursuant to operating authority granted by appropriate government regulatory agencies and/or in accordance with applicable law] within the territory, which was defined to be within the states of Kansas, Missouri and Nebraska. Ashby’s title was that of Senior Regional Manager for the territory, at an annual base salary of $50,-000, plus such increases and bonuses as may be granted by the company.

Ashby's territory was always profitable. In the 1983 fiscal year, Gelco had a net loss of over 7 million dollars on gross sales of about 70 million dollars, while Ashby’s territory produced 3 million dollars profit on 15 million dollars in sales. Ashby was “an excellent businessman” with his own aggressive management style.

Ashby thought that things had not improved with Gelco during 1983, and on October 12, 1983, he wrote a letter to Andrew Grossman, Gelco’s president, requesting renegotiation of his employment contract, saying: “The reason I am giving an early notification, as the agreement specifies not less than thirty days, is that I feel it will take more than just the thirty days for us to really discuss the terms and make a decision. In the event that we cannot reach an agreement, then you should have more than just the thirty days to determine my replacement.” On December 20, 1983, Ashby wrote a letter to Grossman stating that he did not wish to renew the contract on its expiration date, January 31, 1984. Pursuant to a telephone conversation with Grossman, that letter was withdrawn by Ashby by letter of January 3, 1984, in which he reiterated the necessity of negotiating the terms of the contract and referring to his October, 1983, correspondence.

On October 28, 1983, Gelco signed a contract with Baker Industries, Inc., by which Gelco agreed to sell all of its stock to Baker for 27.5 million. The contract was subject to the approval of the United States Department of Justice, and the Interstate Commerce Commission. An assignment of Ashby’s contract of employment was specifically included, as was a provision that Gelco had not and would not terminate any of its employees without the prior consent of Baker or its designee. At the time of the contract, Baker had a wholly owned subsidiary known as Pony Express Courier Corporation which was engaged in the same business as Gelco but in a different part of the United States. Baker then sent a management team, headed by Bob Moree, from Pony Express, to Gelco to become' acquainted with the latter’s operation. Moree was to become president of both Gelco and Pony Express, and he designated Drew Naber for vice president in charge of a twenty-state territory including Ashby’s region. Ashby learned of the Baker-Gelco contract through reading the Wall Street Journal, and he had no function in the mechanics of the take-over. The Baker-Gelco contract was closed February 1, 1984.

Grossman never did respond to Ashby’s October 12, 1983, letter requesting renegotiation, and Grossman entered into no meaningful negotiations with Ashby regarding his contract even though he advised Ashby that he was to deal with Gelco. Ashby tried to talk to his supervisor, Gallagher, but was told by him that Grossman and senior vice president, Milovic, would be the ones responsible for negotiating with Ashby. In apparent frustration, Ashby, on November 15,1983, sent Gallagher a list of demands for the renewal of his contract, to “get something going” and to protect himself from any adverse consequences of the Baker-Pony Express acquisition of Gelco. Gallagher never responded to the list of demands, but sent it on to Grossman and Milovic, neither of whom ever instructed him as to Ashby’s demands.

Ashby attended a meeting of key management field personnel in Minneapolis in early November, 1983, at which time he was told by Moree that nothing could be done about his employment contract because Pony Express did not own the company (Gelco). Shortly thereafter, Moree met with Ashby during a tour of 10 or 12 field offices. Ashby then raised the matter of his employment contract and Moree responded that Pony Express would be more definitive about contract discussions at an appropriate time. On November 18, 1983, Ashby wrote Moree again requesting renegotiation of his employment contract. Later in the month, Moree telephoned Ashby and told him that he ought to accept the contract as is and that perhaps the negotiation deadline could be extended past the contract’s January 31, 1984, expiration date. Moree told Ashby that he could not sit down and work anything out regarding the contract until the “appropriate time”, which in Moree’s mind was in late January after ICC’s approval of the sale of Gelco’s stock. According to Ashby, Moree told him that if he did not accept the contract as is, he was “liable to be whittling all day and scratching crap with the chickens all night.”

A few days after Ashby withdrew his resignation, at a breakfast meeting in Denver on January 6, 1984, Naber told Ashby that he was not well-versed with his employment contract situation and that he would talk to Moree about it. On the previous night, Moree told Ashby that he should talk to Naber about the employment contract. Eleven days later, in a car ride from Lincoln to Omaha, shared by Naber and Ashby, nothing developed with respect to contract discussions. Naber testified that Ashby refused to provide him with any demands, and Naber was unaware of the November 15, 1983, demand by letter to Pat Gallagher whom he did not know. Ashby did ask Naber what “you are going to offer, and we’ll get together much quicker.” Naber did tell him that he was almost sure that Ashby could be kept at the same salary, but he might have to take a little pay cut. Ashby told him, “Well, I am not taking a cut in pay, so there is not really anything we are going to talk about on that line.” Ashby expected a salary increase, ordinarily granted by Gelco, of 8 to 10 per cent on February 1, 1984.

On January 23,1984, Moree wrote Ashby rejecting his demands made in a phone call to Naber a few days before, but offering to consider extending the contract renegotiation deadline for three months. There was no counterproposal to Ashby’s salary and employment demands.

On January 26, 1984, Ashby sent a memorandum to all personnel of Gelco stating that January 31,1984 would be his last day with the company. On January 31, 1984, Ashby and Naber met to discuss the transition of the Kansas City office, at which there was no mention of renegotiation of the contract. At the conclusion of the meeting, Ashby gave Naber his office keys, company car, company credit cards and other company property, and left the office at 3:30 or 4:00 p.m., being driven home by another Gelco employee. A going-away party that evening was given Ashby by employees who had worked for him.

At about 11:00 a.m., on January 31, 1984, Moree gave Erickson, Gelco’s executive vice president, a list of about 80 persons who were to be taken off the payroll the next day (to make it clear the action was that of the new management). Ashby’s name was on the list, put there according to Moree because his contract was to expire at 12:00 p.m., on January 31, therefore he was to be taken off the payroll. Moree testified that Ashby was on the list because he had resigned. At about 5:00 p.m., on January 31, Gallagher called Ashby and told him he had bad news, that Ashby had just been fired, and told him he would receive severance pay over the next four months.

Ashby testified that he viewed Moree’s letter of January 23, 1984, as very confusing because Moree had told him that his contract could not be negotiated because Pony Express did not yet own the company (Gelco), but all of a sudden (on January 23), Moree was willing to do something even though (Pony Express) did not own the company. Ashby believed that the offer to extend negotiations for three months was a stopgap to keep him on the job while Pony Express found a replacement for him; his best “bargaining” interest was not to accept the extension in the hope that there would be immediate negotiations; and that even after leaving work on January 31, 1984, and turning over company property, Pony Express would still make an offer. Gallagher testified that Ashby believed that he would still be able to negotiate the contract right up to the last minute and several months beyond February 1, 1984. Gallagher termed Ashby’s actions in writing Gelco’s personnel announcing January 31, 1984 as his last day as “vintage Ashby-isms”. “When he did not get something that he felt was his due, he was very strong in the way that he — he vocalized that. * * * They were one of many dozens of letters and notes and cryptic comments I would get from Mr. Ashby over the course of business. That was just Mr. Ashby’s management style. We all just came to accept it and kind of overlook it.”

Moree admitted (and the trial court found) that he kept Ashby on the hook without serious negotiations saying, “[w]e’ll talk at some appropriate time” through November, December, and until January 27 (1984). Moree’s letter of January 23, 1984, rejecting Ashby’s proposed terms, offering no counterproposal and threatening to sue on the non-compete clause was the extent of the good faith negotiations with Ashby. There is no question but that Moree prepared the list of employees for Erickson to remove from the payroll as of February 1, 1984. Ashby’s name was on that list. “A. * * * but the intent of the request was that he take this list and insure that those people were not on the payroll as of January — excuse me— February 1, 1984. Q. In common language that means to fire them, doesn’t it? A. Termination, fire, can — you know, you name it. Q. Pink slip them? A. Sure, that’s exactly right.”

What is at issue is whether Gelco breached the contract, causing its termination, in such a manner as to relieve Ashby of performance of his covenant not to compete after termination. As noted, the parties agreed that the employment contract would automatically be renewed unless either party gave not less than 30 days notice in writing of intention to terminate or renegotiate the terms and conditions. The two alternatives are plain and unambiguous. Although Ashby asserts that the conditions of automatic renewal are ambiguous and should be construed against Gel-co, he points to no reason why or wherein it is ambiguous, i.e. susceptible to different meanings. This court may not create an ambiguity where none exists. John Deere Company v. Hensley, 527 S.W.2d 363, 365[2] (Mo. banc 1975).

Of course there was no notice specifically to terminate the contract given by either party prior to 30 days before the expiration of the term. But what Ashby did was unequivocally to give official notice that he wished to renegotiate the terms and conditions of the contract. The reason he gave for early negotiations was that he felt that it would take more than thirty days to discuss the terms and make a decision, and he wound up by stating, “In the event that we cannot reach an agreement, then you should have more than just the thirty days to determine my replacement.” Thus, Ash-by must be held to have known the possibility that the employment agreement would not be renegotiated into a new contract beginning February 1, 1984, and the former contract would then be at an end. His action in giving all personnel notice that January 31, 1984, would be his last day at Gelco, and his turning in of his keys and other company property to Naber, both done after Moree’s letter of January 23, 1984, rejecting his demands, is a recognition by Ashby that his contract of employment was at an end.

Although involving application of federal labor relations statutes in collective bargaining cases, wherein there is a statutory duty of good faith in renegotiation of labor contracts, 29 U.S.C. § 158(d); 48 Am. Jur.2d, Labor and Labor Relations, § 1027, p. 827, these cases hold that where a labor union gives notice of modification of an automatically renewable contract, the notice terminates the contract. East Bay U of Mach., Local 1304 v. Fibreboard Paper Prod. Corp., 285 F.Supp. 282, 289[10, 11] (U.S.D.C.N.D.Calif.1968); Dillingham Corp. v. United Broth. of Carpenters, 519 F.Supp. 734, 739[2] (U.S.D.C.Hawaii, 1981); Baker v. Fleet Maintenance, Incorporated, 409 F.2d 551, 554[3] (C.A.7th 1969); Kaufman, Etc. v. Intern. Broth. of Firemen, 607 F.2d 1104, 1109[5] (C.A.5th 1979); and see Anno. 57 A.L.R.Fed. 393. Compare also Chapter 295, RSMo 1978, relating to good faith collective bargaining in utility company labor disputes. There is no requirement of negotiation of a private employment contract such as the one here, nor is there one of “good faith” negotiation. Compare Mo. Public Service Co. v. Peabody Coal Co., 583 S.W.2d 721, 725[2] (Mo.App.1979), holding that Public Service’s refusal to accede to Peabody’s demand for coal price increase did not constitute bad faith, the contract having been settled as a result of arm’s length dealing with no cloud of dishonesty, lack of good faith or failure to adhere to standard business or commercial practice on the part of either party. See also La. Power & Light v. Allegheny Ludlum Industries, 517 F.Supp. 1319, 1329 (U.S.D.C.E.D.La.1981), holding that Allegheny’s allegation of LP & L’s bad faith in refusing to meet with it in a timely fashion to discuss renegotiation of the contract was without merit in that “There is no obligation imposed under law which would have required LP & L to engage in renegotiation or even discuss renegotiation of its contract with Allegheny.” The Uniform Commercial Code imposes only an obligation of good faith on the performance or enforcement of contracts thereunder. Section 400.1-203 RSMo 1978. That would refer only to the existent one year contract between Gelco and Ashby, not to any negotiation of a new contract.

It must be remembered that Gelco was under a contract to have its stock purchased by Baker Industries and its subsidiary, Pony Express, which was to be closed February 1, 1984. Ashby was aware of the contract from having read about it in the Wall Street Journal. Moree, who was engaged in the mechanics of the takeover, advised Ashby that his contract would be discussed at a more.appropriate later time, which was reasonable under the requirements of the takeover contract, so keeping Ashby “on the hook” under his existent contract, without renegotiating a new contract for the ensuing year, is without legal significance and it shows no bad faith. Finally, Moree’s letter of January 23, rejecting Ashby’s demands, stated as reasons that they “included not only a substantial increase in compensation, but a reduction in the scope of responsibilities from that which you have today, it is my feeling that we are too far apart for there to be any further meaningful conversations on this subject at this time.” The letter went on to state that based upon prior notices given by Ashby to Gelco, Moree understood that January 31,1984, would be his last day of employment. The letter went on with this offer: “In the event that you would wish to remain employed with Gelco Express, upon the same terms as are set forth in the Agreement, for an interim term of three months in order to allow us to pursue this further, I would consider it. However, your interest in doing so must be communicated to me in writing not later than January 27, 1984.” Ashby did not make that communication.

Ashby contends that Gelco terminated his contract on January 31, 1984, without 30 days notice which constituted its breach of the contract. However, if the direction by Moree to remove Ashby from the payroll effective February 1, 1984, was a termination, it could amount to no more than a recognition that Ashby had already signified the contract termination by his notice to renegotiate in accordance with its plain terms, as above set forth. Gelco could not terminate a relationship which had already been unequivocally terminated by Ashby. Baker v. Missouri National Life Insurance Company, 372 S.W.2d 147, 152[3, 4] (Mo.App.1963).

Ashby asserts that the covenant not to compete is an overbroad, unlawful restraint of trade and Gelco failed to establish a legitimate need for its enforcement as required by Missouri law. The territory defined by the contract includes the states of Kansas, Missouri and Nebraska, in which Ashby was employed as Senior Regional Manager, and in which the evidence shows that he was very successful in producing a substantial profit for Gelco. By rumors, Gelco became aware that Ashby had gone to work for a direct competitor, Central Air Charter, after he left Gelco’s employment. On February 10, 1984, Gelco obtained a temporary restraining order which restrained Ashby from violating the covenant not to compete. That restraining order was dissolved on March 5, 1984. Thereafter, Ashby acknowledged, through answers to interrogatories on April 9,1984, that he was employed by Central Air Charter as executive vice president, with the same job description which he had previously with Gelco, except for aircraft maintenance. He further answered that the services or duties he was performing under the arrangement involved contact with customers or potential customers in Kansas and Missouri, and that customers were those of Gelco; that he had, since March 5, 1984, personally, with one Jerry Lawson, contacted customers in Kansas whom he knew to be customers of Gelco for the purposes of soliciting their business for Central Air Charter or any related company, listing six banks in the Wiehita-Hutchi-son-Salina cities, and the Centerre Bank of St. Louis. He stated that Central Air Charter was handling a brand new air run for the Fourth National and National Banks of Salina, which was never Gelco’s business.

It is true, as Ashby argues, that Gelco did not establish that it had any real protec-tible secrets as to trade routes or rates. In fact, Ashby testified that trade route use is available to any competitor in the courier business, and rates are also highly competitive since the Kansas Corporation Commission deregulated the courier business in that state. There is, however, one element listed in Grebing v. First National Bank of Cape Girardeau, 613 S.W.2d 872, 874 (Mo.App.1981), as a proteetible business interest: customer lists, to which should be added customer contacts under Herrington v. Hall, 624 S.W.2d 148, 151[1, 2] (Mo.App.1981), and cases cited at page 152[4] of that opinion. See also Orchard Container Corp. v. Orchard, 601 S.W.2d 299 (Mo.App.1980), where a three-year limitation on competition, but with a reduced radius of 125 miles where the employer had solicited business was held to be reasonable; and Chemical Fireproofing Corp. v. Bronska, 542 S.W.2d 74 (Mo.App.1976), where the employee had built up goodwill for the employer in a two-state area, which was held to be a legitimate proteetible interest from the employee, Bronska. Note also the there cited cases, page 80, of Mills v. Murray, 472 S.W.2d 6 (Mo.App.1971); and House of Tools and Engineering, Inc. v. Price, 504 S.W.2d 157 (Mo.App.1973).

Naber testified for Gelco that Ashby, by reason of being in the business for twenty-some years, knew virtually all the customers of any size of Gelco, and which accounts are critical for it to maintain. He knew how much customers were paying Gelco and (in competition) he could go to them and say that he was going to save them money, and “with his reputation in the business, he’s going to have credibility that he can provide the service.” In addition to his admissions that he had solicited and obtained some customers of Gelco, he addressed a letter, “Dear Kansas Banker” on Central Air Charter’s letterhead, dated March 9, 1984, soliciting business for its air-ground route system, “just streamlined for your bank work.” Because the competition imposed by Ashby’s new employer, Central Air Charter, was within Gelco’s territory as restricted by the covenant not to compete, it certainly had a legitimate proteetible interest, and under the facts here, it must be held to be reasonable. There is no evidence that Gelco was guilty of any fraudulent or illegal acts so as to support the trial court’s finding that it had unclean hands. See Hyde Park Amusement Co. v. Mogler, 358 Mo. 336, 214 S.W.2d 541, 544[3] (1948).

Gelco posted a $7,000 bond at the time it received its temporary restraining order on February 10, 1984, that matter being ex parte. On a hearing as to whether Gelco should be granted a preliminary injunction on February 24 and 25, 1984, at which all parties were present and evidence received, the trial court took the matter under advisement, and subsequently denied the application for preliminary injunction and dissolved the temporary restraining order on March 5, 1984. Ashby filed a motion to increase the temporary restraining order bond which was served on Gelco’s counsel March 13, 1984, which motion recites that a motion to increase the bond was made at the close of the hearing on the preliminary injunction, and the record so shows together with the fact that the trial court took the motion to increase bond under advisement. .Near the close of the trial, the court heard evidence of damages by reason of the issuance of the temporary restraining order, consisting of Ashby’s lost wages of $2,516.60, and incurrence of attorney fees of $9,952.95, both items being limited in proof to claimed damages from February 10, 1984 to March 1, 1984. On May 18, 1984, the trial court entered judgment denying the petition for permanent injunction; for $14,583.97 on Ashby’s counterclaim; and assessed damages of $12,-469.55 on the temporary restraining order bond against Gelco and Insurance Company of North America. On that same date, the trial court increased the amount of the temporary restraining order bond to $13,-000, which Gelco says it was not empowered to do. The trial court, another judge sitting for Division 6, had approved the $7,000 bond, and the temporary restraining order was ordered effective until the application for preliminary injunction was heard.

Rule 92.02(c) provides that “No injunction or temporary restraining order, unless on final hearing or judgment, shall issue in any case, * * * until the plaintiff, or some responsible person for him, shall have executed a bond with sufficient surety or sureties to the other party, in such sum as the court shall deem sufficient to secure the amount or other matter to be enjoined, and all damages that may be occasioned by such injunction or temporary restraining order to the parties enjoined, * * * conditioned that the plaintiff will abide by the decision which shall be made thereon, and may all sums of money, damages and costs that shall be adjudged against him if the injunction or temporary restraining order shall be dissolved. * * * .” The $7,000 bond, which was approved, must have been then considered to have been sufficient by the trial court. There is nothing in the rule or in the cases cited which would prevent its being increased upon motion timely filed or made while the restraining order was in effect. Ashby made his oral motion to the court on February 25, 1984 (the first time he had opportunity to do so), while the restraining order was in effect at which time the trial court took the motion under advisement, which caused it still to pend. The formal written motion, referring to the oral motion, followed. In Hamilton v. Hecht, 299 S.W.2d 577, 580 (Mo.App.1957), the defendants moved for an order to increase the amount of the bond, which was denied. Defendants never thereafter pursued the trial court’s denial, and the appellate court held that the issue was abandoned, thus there was no issue presented on appeal as to the claimed error in not increasing the bond. In R.A. Vorhof Const. Co. v. Black Jack Fire Pro. Dist., 454 S.W.2d 588, 595-596 (Mo.App.1970), the initial bond was set at $500. Before final submission and judgment, the bond, as requested, was increased to $2,500. After final judgment granting a permanent injunction, defendants filed a motion for additional bond of $4,500 which was denied. The court held the defendants to further proof of damages and costs on the timely filed increase of bond of $2,500. Neither the Hamilton nor Vorhoff cases stand for the proposition that a restraining order bond, upon motion timely filed, may not be increased up to the time of final judgment. In this case, Ashby’s loss of wages is not contested. It was conceded that the amount of attorney fees in connection with proceedings to dissolve the temporary restraining order was reasonable. That attorney fees are awardable in proceedings to remove an unlawful restraining order is established. Terminal Railroad Ass’n. of St. Louis v. Schmidt, 353 Mo. 79, 182 S.W.2d 79, 84 (1944); State ex rel. County of Shannon v. Chilton, 626 S.W.2d 426, 430[10, 12] (Mo.App.1981), citing Kelder v. Dale, 313 S.W.2d 59, 61 (Mo.App.1958), but holding that since no bond was filed, there could be no recovery for attorney fees due to the restraining order. There is no evidence that Ashby violated his covenant not to compete prior to March 1, 1984, and the evidence did show he lost wages and incurred costs for attorney fees and expenses prior to that date totalling $12,469.55. The trial court did not err in increasing the restraining order bond and assessing damages for the total of $12,469.55, especially since Ashby showed, prior to final judgment, that his damages exceeded the original $7,000 bond.

The trial court awarded Ashby a net of $14,583.97 as severance pay, finding that he had been fired by Gelco, upon his counterclaim. As above noted, the trial court’s finding that Gelco discharged Ashby, especially in view of his October 12, 1983 letter requesting renegotiation which brought about the termination of the automatically renewable contract of employment, and Ashby’s further acts in regard to the cessation of the contract, is not supported by substantial evidence. The employment contract provides that in consideration of the covenant not to disclose information and not to compete, in the event Ashby’s employment was terminated, Gelco would pay him 50% of his base salary per year, to be paid over 24 months after termination, so long as the covenants were not breached by him. Obviously, the trial court did not apply this provision, and it would have been error to do so because the evidence shows that Ashby was in violation of the covenant not to compete after March 5, 1984. What the court did apply was Gelco’s Policy and Procedure Guide, the purpose of which is recited to be “To provide a benefit for certain involuntarily terminated employees.” (Emphasis added.) The policy provides further: “The payment of severance allowance as set forth in the following schedule may be made only when termination of employment is by company action. No severance allowance shall be paid or owing to any employee who: (1) terminated their employment voluntarily; * * Ashby’s length of service was over 10 years, so if he had been involuntarily terminated (by company action), he would have been entitled to four months base salary. But the trouble is, as discussed above, he was not involuntarily terminated, but by his own voluntary act in requesting renegotiation of the contract. Under the evidence, the trial court erred in awarding severance pay.

The evidence shows that Ashby could perform these duties for his new employer, Central Air Charter, without breaching his covenant not to compete with Gelco, according to his job description: Responsibility for sales and purchases of aircraft and aircraft parts (listing Central’s inventory of aircraft); maintenance of company owned and customer aircraft; responsibility for passenger charter flights; responsibility for shift supervisors, clerical and all other Central Airline administrative people; director of marketing and sales, in areas where Central Airlines operates, or might commence operations in states other than Kansas, Nebraska and Missouri; and “I will not engage in any operation or sales efforts that could be considered in any way as being in any way as being a part of courier business.” Ashby, at his age of 55 years, has an economic necessity of continued employment and income, and the aforesaid duties should not be prohibited inasmuch as they do not constitute competition in contacting Gelco’s customers, and the same should be excluded from the injunction decree as hereinafter directed.

That part of the judgment assessing damages in favor of Ashby and against Gelco on the temporary restraining order, $12,469.55, is affirmed. That part of the judgment awarding Ashby $14,583.91 as severance pay is reversed. The denial of Gelco’s prayer for permanent injunction is reversed, and the case is remanded for entry of an injunction decree prohibiting Ashby from (a) engaging in competition in the courier business with Gelco or any of its subsidiaries in Kansas, Nebraska and Missouri; (b) from hiring or taking away or causing to be hired or taken away, any of Gelco’s employees who were employed by it at any time during the six months preceding January 31, 1984; (c) from acting as a consultant, agent or advisor of any Gelco customer who was such on January 31, 1984, in matters relating to Gelco’s courier business; (d) from directly or indirectly soliciting, diverting or taking any of Gel-co’s customers with whom it did business on January 31, 1984, or which it solicited within six months prior to that date; (e) and from disclosing to any person, firm or corporation information relating to Gelco’s operation, including trade secrets, business methods, rates, customer lists and needs or any existing or prospective customers. The decree shall exclude the above referenced duties which Ashby may perform for Central Air Charter which are of a noncompetitive nature, and shall have an expiration date of January 31,1986, in accordance with the employment contract term. Costs of the appeal shall be divided equally between appellants and respondent.

All concur.


author: DIXON, Judge.

text:
    Alice Jane EAKRIGHT, Respondent, v. Reginald Stephen EAKRIGHT, Appellant.
    No. WD35988.
    Missouri Court of Appeals, Western District.
    April 9, 1985.
    Phillips & Ewan, John J. Phillips, Independence, for appellant.
    Joe Don Butcher, Independence, for respondent.
    Before PRITCHARD, J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

The husband appeals from the circuit court order modifying the dissolution decree by awarding him custody of the two minor children. Wife had initially been granted custody and child support, but then filed for modification, requesting more child support and permission to move the children to California. Husband later asked for a modification, requesting custody but not requesting child support. The court overruled wife’s motion and granted the husband’s, awarding him custody. Husband appeals, asserting the court erred in failing to award him child support.

The right of appeal is statutory. Section 512.020 RSMo 1979; Rule 81.01; Williams v. Williams, 480 S.W.2d 525 (Mo.App.1972). Fundamental to that right is that the party be aggrieved by the judgment from which he appeals. Armstrong v. Armstrong, 654 S.W.2d 802, 308 (Mo.App.1983). A party is not aggrieved when the court grants all of the relief sought. State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669 (banc 1946); Lowe v. Labor and Industrial Relations Comm’n, 594 S.W.2d 365 (Mo.App.1980); In re Marriage of Richardson, 540 S.W.2d 227 (Mo.App.1976); Lipsey v. Lipsey, 464 S.W.2d 529 (Mo.App.1971). See, Block v. Block, 593 S.W.2d 584 (Mo.App.1980). The appeal is dismissed.

All concur.