author: BILLINGS, Judge. DONNELLY, Judge, WELLIVER, Judge, DONNELLY, J., BLACKMAR, Judge,

text:
    Paula BARNEY, Respondent, v. Donald SUGGS, D.D.S., Appellant.
    No. 65980.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing and Reargument Denied April 30, 1985.

      Mark G. Arnold, Harry B. Wilson, St. Louis, for appellant.
    Godfrey P. Padberg, St. Louis, for respondent.
   BILLINGS, Judge.

Consolidated appeals by defendant-dentist seeking relief from a $300,000 default judgment in favor of plaintiff-patient. The court of appeals concluded under Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer, 666 S.W.2d 426 (Mo.App.1984), it had no jurisdiction over defendant’s direct appeal because of the absence of a timely motion to vacate the judgment. However, the court of appeals considered defendant’s multi-pronged motions, filed subsequent to his notice of appeal, as a motion to set aside for irregularity under Rule 74.32 and opined that the lack of substantial evidence to support the damage award was an irregularity entitling defendant to a new trial on the issue of damages. Because of the importance and general interest of the issues involved, the cause was transferred to this Court. We affirm.

The relevant dates and proceedings are as follows:

DATE EVENT

August 12, 1980 Defendant performed oral surgery on plaintiff.

August 10, 1982 Plaintiff’s petition filed.

August 27, 1982 Personal service on defendant.

November 17, 1982 Trial court granted plaintiff’s motion for interlocutory judgment of default.

February 23, 1983 Plaintiff presented evidence on damages.

March IS, 1983 Final judgment of default for $300,000.00 entered.

DATE EVENT

June 15, 1983 Eastern District granted defendant’s motion to file late notice of appeal.

June 23, 1983 Notice of appeal of the default judgment filed.

June 27, 1983 Defendant filed motions in the trial court for a writ of error eoram nobis to set aside the default judgment, alternatively, to vacate or equitably set the judgment aside.

November 4, 1983 Trial court heard and denied defendant’s motions.

November 9, 1983 Notice of appeal of November 4 ruling filed.

December 29, 1983 Eastern District granted a motion to consolidate appeals. The appeal of the default judgment was consolidated with the appeal of the November 4th denial of defendant’s motions.

May 1, 1983 Eastern District filed an opinion on the consolidated appeals.

As demonstrated, supra, the case under consideration involves two consolidated but distinct appeals. The first is a late but direct appeal of the default judgment. The second is an appeal of trial court’s denial of defendant’s motions to set aside the default judgment for alleged irregularities.

We initially note that in defendant’s reply brief in the court of appeals he took the position that the damage award was reviewable on direct appeal but was not reviewable under a writ of error coram nobis, a petition in equity, or motion to set aside for irregularities under Rule 74.32. Further, such motions did not afford him an opportunity to inquire into the substantiality of the evidence supporting the judgment. However, in supplemental briefs filed with this Court defendant has hitched his appellate wagon to both direct appeal and irregularities in seeking barnyard equity to extricate himself from the judgment.

The court of appeals correctly held that the direct appeal of the default judgment should be dismissed for failure to satisfy a mandatory prerequisite. A default judgment cannot be appealed unless the trial court has previously heard a motion to set aside or vacate the judgment. Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer, 666 S.W.2d 426 (Mo.App.1984); In re Marriage of Arnold, 684 S.W.2d 451 (Mo. App.1984); Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982). Motions filed after the notice of appeal do not satisfy the Vonsmith requirement. Defendant failed to file a timely motion to set aside or vacate the default judgment and direct appellate review is not available to him.

Defendant’s second appeal involves the trial court’s denial of his June 27, 1983, motions. The trial court had already lost jurisdiction because the default judgment had become final due to the passage of time. Further, defendant filed these motions after he had earlier filed a notice of appeal of the default judgment and paid the docket fee. Assuming viable jurisdiction, the trial court at that moment was divested of jurisdiction because it had lodged in the appellate court. Gieselmann v. Stegeman, 470 S.W.2d 522 (Mo.1971); State ex rel. Brooks Erection Co. v. Gaertner, 639 S.W.2d 848 (Mo.App.1982). Nevertheless, because Rule 74.32 authorizes and permits a motion to set aside a judgment for irregularities to be filed within a three-year period following the judgment, and because the issue of alleged irregularities has been squarely raised and presented in the briefs and arguments of the parties in this Court, we will consider and treat defendant’s motions as an independent motion for relief under rule 74.32.

Many opinions have discussed the irregularity requirement of a motion to set aside a judgment. The present Rule 74.32, and its statutory predecessors, recognizes a common law remedy and adds a new time limit of three years. Comment, Procedure-Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 286 (1963). The remedy is very narrow. State ex rel. Brooks Erection and Construction Co. v. Gaertner, 639 S.W.2d 848, 850 (Mo.App.1982). The irregularity must render the judgment contrary to a proper result. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672 (1908), overruled on other grounds, Simms v. Thompson, 291 Mo. 493, 236 S.W. 876 (banc 1921). It must be patent on the record and must not depend on proof beyond the record. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952); Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1 (1946). The irregularity must indicate that the judgment was materially contrary to an established form and mode of procedure for the orderly administration of justice. Cross, supra. Rule 74.-32 only reaches procedural errors that if known would have prevented the entry of the judgment; irregularities are not ordinary judicial errors in a judgment that are reached through proper procedures and the motion does not allow review of judicial errors committed in the rendering of a judgment. Casper, supra.

An irregularity may be defined to be the want of adherence to some procedural rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unseasonable time, or improper manner.

Id. 245 S.W.2d at 138. The motion is not a substitute for a direct appeal. Robinson v. Martin Wunderlich Construction. Co., 72 S.W.2d 127 (Mo.App.1934). It does not test the sufficiency of the evidence supporting the default judgment. Id. The sufficiency of evidence at the damage stage must be assumed during review for irregularities. Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596 (Mo.App.1970).

Defendant claims two irregularities. First, he alleges the evidence was insufficient to justify the damage award. See, e.g., Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982). Although this ground can be advanced in a proper direct appeal, the judgment cannot be set aside for such an alleged irregularity. The alleged error is judicial, not procedural, and it is not subject to review under Rule 74.32.

Second, he alleges the default judgment should be set aside for failure to give constitutionally required notice. The procedure plaintiff utilized followed our rules, the statutes, and decisional law, and does not constitute an irregularity under Rule 74.32. When damages are unliqui-dated, the default procedure has two stages. First, if defendant fails to file a timely pleading plaintiff may obtain an interlocutory judgment of default. Rule 74.-045. Second, damages are assessed and a final judgment is entered. Rule 74.09-.il. No time interval between the stages or additional notice is required.

Here, defendant was personally served with summons and petition and was put on notice of every stage of the proceeding. Rule 43.01(a). Courtin v. McGraw Construction Co., 639 S.W.2d 286 (Mo.App.1982); Korn v. Ray, 434 S.W.2d 798 (Mo.App.1968). Service of a valid summons gives a defendant reasonable notice of the suit and the damage assessment upon default. There is simply no constitutional, statutory, or procedural irregularity in the present case and Rule 74.32 is of no aid to defendant.

Defendant negligently disregarded legal process. Once he was validly served he was charged with notice and in court for all subsequent proceedings. Plaintiff proceeded properly under the rules. Defendant ignored them. If judgments are properly rendered they should not be disturbed by loose interpretations of cases and newly created and imposed rules. Dereliction by a defendant should not be so rewarded. No additional notice was required under the law. Defendant’s argument that the failure to give a defaulting defendant a second notice is an irregularity subject to a motion to vacate would open the door on default judgments and completely undermine our recent ruling in Vonsmith, supra.

The judgment is affirmed.

HIGGINS and GUNN, JJ., concur.

DONNELLY, J., concurs in separate opinion filed.

WELLIVER and BLACKMAR, JJ., dissent in separate opinions filed.

RENDLEN, C.J., dissents and concurs in separate dissenting opinion of BLACK-MAR, J.

DONNELLY, Judge,

concurring.

The continued viability of Vonsmith:

The present disposition of this case necessarily reaffirms the principle that “a default judgment is not appealable in the absence of a motion to set aside or vacate.” Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). See also Andrew County v. Owens, 46 Mo. 386, 388 (1870); Blackmore v. Blackmore, 639 S.W.2d 268, 269 (Mo.App.1982). While there is a lack of unanimity on the issue, this is the rule in numerous jurisdictions: “an appeal * * * will not lie in the first instance to reverse a judgment * * * entered against a party * * on his default, but the remedy, * * * is by application to the lower court for correction or setting aside of the entry.” 4 C.J.S. Appeal & Error, § 155 (1957). See, e.g., Montalvo v. Key Industries, 98 A.D.2d 767, 469 N.Y.S.2d 482 (1983); Collins v. Kerstiens, 30 Mich.App. 633, 186 N.W.2d 847 (1971); Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981).

The rationale for this rule is clear. In the absence of a motion to vacate or set aside filed in the trial court, there can be nothing before the appellate court which could suggest that the trial court erred in its application of the law to the facts. Adel v. Parkhurst, 681 P.2d 886, 889 (Wyo.1984). The trial court “cannot be said to have committed an error when * * * [its] judgment was never called into exercise, and the point of law was never taken into consideration * * *. To assume the discussion and consideration of a matter of law, which the party would not discuss in the [trial court], and which that court, therefore, did not consider, is to assume, in effect, original jurisdiction.” Vonsmith, 666 S.W.2d at 424, quoting Gelston v. Hoyt, 13 Johns. 561, 566-67 (N.Y.1816). See also, Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982); Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161, 168 (Mo. banc 1975); Stahlheber v. American Cyanamid Co., 451 S.W.2d 48, 61 (Mo.1970); Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo.1959).

The dissent emphasizes language in § 512.020 that appeal may be taken from “any final judgment in the case.” In doing so, it apparently overlooks the requirement contained therein that such appeal must be “to a court having appellate jurisdiction.” (Emphasis added.) In this State, it is an indispensable statutory prerequisite that all allegations of error be presented in the first instance to the lower court for consideration. § 512.160.1, RSMo 1978. There is no doctrine better settled than that the right of appeal is purely statutory and, therefore, when our statutes do not confer such a right, it does not exist. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); Walker v. Thompson, 338 S.W.2d 114, 115, 116 (Mo.1960), Snoddy v. County of Pettis, 45 Mo. 361, 362 (1870). Simply stated, if an appeal is not authorized by statute, an appellate court has no jurisdiction of the cause. Martin v. Martin, 534 S.W.2d 621, 625 (Mo.App.1976); Powell v. Watson, 516 S.W.2d 51, 52 (Mo.App.1974); Hays v. Dow, 237 Mo.App. 1, 7, 166 S.W.2d 309, 312 (1942). No statute provides an appellate court jurisdiction over a default judgment for which the trial court has not ruled on a motion to vacate or set aside the judgment. Accordingly, no appeal may lie from such a judgment, despite its finality.

As we noted in Vonsmith, the presentation of questions of law in the first instance to the trial court goes to “the very theory and constitution” of appellate jurisdiction and is an inherent ingredient in the right of appeal. 666 S.W.2d at 424. The rulemaking power of this Court does not extend to changing the law relating to the right of appeal. Mo. Const, art. Y, § 5. For this reason, contrary to the views expressed in the dissent, this Court cannot “modify” by rule the jurisdictional parameters set forth in § 512.160.1. See State ex rel. State Highway Commission v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973); Moreland v. State Farm Fire & Casualty Co., 620 S.W.2d 24 (Mo.App.1981). Nor was that the intent of the “plain error” rule. Rule 84.13(c). The “plain error” rule authorizes appellate courts to consider errors not raised or preserved in coses which otherwise fall within their appellate jurisdiction. See, e.g., Highfill v. Brown, 320 S.W.2d 493, 497-498 (Mo.1959); Rasco v. Rasco, 447 S.W.2d 10 (Mo.App.1969). Jurisdiction must be established by questions preserved for review and not merely by errors present in the record. Winslow v. Sauerwein, 365 Mo. 269, 271-272, 282 S.W.2d 14, 16 (1955); State v. Brown, 446 S.W.2d 498, 499 (Mo.App.1969). Plain error review of questions of law arising in a default judgment proceeding would accordingly require that a timely motion to vacate or set aside the judgment have been filed in the trial court to establish appellate jurisdiction. See Aetna Casualty & Surety Company v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984).

The assessment of damages without notice:

In Missouri, when a defendant is in default for failure to make an appearance, the truth of allegations of the petition constituting plaintiff’s cause of action is deemed to be admitted. Smiley v. Cardin, 655 S.W.2d 114, 117 (Mo.App.1983). Nevertheless, where, as here, damages are unliquidated, a default is not an admission of damages. Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7, 10 (1937); Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 1052 (1931). A defendant in such a situation has the right “to be heard and participate in the trial on the question of damages and * * * minimize the damages or defeat the action by showing that no damages were caused to plaintiff by the matters alleged.” Electrolytic Chlorine Co., 41 S.W.2d at 1052. In my view, since such a defendant is entitled to be heard on the issue of damages, notice of the plaintiff’s intent to have damages assessed should be required.

Authorities are not unanimous on the general question of whether a defendant is entitled to notice of a hearing to assess damages following his default. See generally, Annot., 15 A.L.R.3d 586 (1967); 25A C.J.S. Damages § 170 (1966). The rationale for not requiring notice is that a properly served defendant has been given adequate notice to allow an intelligent decision on whether to appear or default, knowing that the judgment cannot exceed the demand in the complaint. R.R. Gable, Inc. v. Burrows, 32 Wash.App. 749, 649 P.2d 177, 180 (1982). This fits with the general rule on admissions by default: the default admits the plaintiff’s entitlement to those damages that can be determined with exactness from the cause of action as pleaded. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla.App. 5 Dist.1983).

However, where, as here, the prayer has been for only such damages as are fair and reasonable, damages cannot be determined with exactness, and defendant has not been given adequate notice to allow an intelligent decision on the damage issue of his default. See Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348 (1963). In that circumstance, Rules 43.01(a) and 74.09 should be amended to require notice to the defaulting party prior to the determination of damages. Of course, because such amendments would not take effect until six months after their publication, Mo. Const, art. V, § 5, they would not apply in this case.

I concur.

WELLIVER, Judge,

dissenting.

I respectfully dissent.

This case brings clearly into focus the problems Missouri courts have been encountering in the handling of default judgments. Default judgments are the result of either the intent, omission or negligence of clients or the omission or negligence of attorneys, or both. No easy or magic answer emerges for dealing with defaults. If judges deal softly with defaulters, the defaults will probably increase and the courts become inundated with requests for review. If a rule with the harshness of Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), and the principal opinion prevails, we open the door to clients being hit with default judgments which may so far exceed their insurance, if any, as to wash out a lifetime of work and savings without benefit of judicial review. If the error or omission be that of the attorney trying to represent clients in this world of ever increasing paper shuffling, rules, regulations, and deadlines, application of the rule proposed in Vonsmith and the majority may serve only to hasten the escalation of legal malpractice premiums which will be passed on to clients. I cannot believe that these two alternatives are the only alternatives available for the courts’ fair and just treatment of this matter.

The problem is not new. Our former standing Rules Committee labored years before submitting to the Court in August 1979 a proposed revision of Rule 74 relating to defaults. The Court rejected that draft. A revised draft was submitted to the Court in January, 1983. That draft has been considered and recommended for adoption by the Missouri Bar Association. The suggested rule change now pends before us awaiting final decision.

In his dissenting opinion, Blackmar, J., makes a persuasive argument that the Vonsmith rule, so perfectly designed for our dealing with allegations of error on appeal, may have substantial shortcomings for dealing with defaults.

I confess my own second thoughts about my concurrence in Vonsmith.

Though Vonsmith may be read as suggesting that the filing of any post-judgment motion in the trial court will suffice as a prerequisite to appellate review, it has never been held that excessive damages as here alleged can be reviewed under Rule 74.32 in its present form. Application of the Vonsmith rule to these facts serves only to place appellant in the classic “catch 22” situation.

DONNELLY, J.,

in his concurring opinion, states well the case for some form of notice prior to the hearing assessing damages. While such notice may not be specifically required by our rules, I believe that it is generally followed as a matter of practice by the majority of the trial bar.

I, therefore, concur in the dissent of BLACKMAR, J., and in that part of the opinion of DONNELLY, J., that advocates a rule change requiring notice. I would agree with the recommendation of BLACK-MAR, J., concerning disposition of this case.

BLACKMAR, Judge,

dissenting.

I believe that this case should be retrans-ferred to the Court of Appeals with directions to consider the merits of the appeal from the initial judgment under the “plain error” standard of Mo.S.Ct. Rule 84.13(c). The Court of Appeals dismissed the direct appeal from the final judgment under the compulsion of Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer 666 S.W.2d 426 (Mo.App.1984). I believe that Vonsmith was improperly decided and should be overruled, for the reasons set out in Part I of this dissent. I rely on matters which were neither briefed nor thoroughly argued when Vonsmith was before us.

I.

As this Court pointed out in State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984) the right of appeal is purely statutory. There the Court held that no appellate review was possible even though a criminal conviction had indelible consequences, because the trial court had not exhausted its full power in the premises. In Vonsmith and in the principal opinion the Court desists in cases in which appellate jurisdiction is clearly present under the governing statutes. The duty to decide an appeal within our statutory jurisdiction is fully as important as the duty to desist from ruling a case which is not appealable.

Section 512.020, RSMo 1978 provides in pertinent part as follows:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from ... any final judgment in the case_ (Emphasis supplied)

Nothing in the statute indicates that it is not applicable to a judgment by default.

Section 512.050, RSMo 1978 provides in pertinent part as follows:

No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final....

Section 512.060, RSMo 1978, however, authorizes an untimely appeal by special leave of the appellate court within six months after the judgment becomes final.

Our Constitution, in granting authority to this Court to establish “rules of practice and procedure” which modify procedural statutes, (Art. V, Sec. 3), specifically exempted changes affecting the “right of appeal.” It follows that we may not achieve the same result by decision. Under the legislature’s firm direction, then, the appeal from the $300,000 judgment was before the Court of Appeals for decision. The dismissal of the appeal represents abdication of judicial power clearly conferred.

Courts and lawyers have been prone to say, somewhat carelessly, that an appellate court has “no jurisdiction” over issues sought to be raised on appeal if those matters have not been presented to the trial court for decision. Section 512.160.1, RSMo 1978, initially adopted as a part of the Civil Code of 1943, has sometimes been relied on in support of the “no jurisdiction” claim. That section reads as follows:

1. Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.

That section demonstrates that the “no jurisdiction” assertion is not accurate. The section contains exceptions to the requirement of presentation to the trial court. The Court of Appeals, in Vonsmith, applied one of three exceptions in reversing a part of the judgment because relief was afforded in excess of the demands of the petition. Section 512.160.1 does not divest the appellate court of its jurisdiction, but rather directs the manner in which jurisdiction should be exercised.

Soon after the adoption of the Civil Code of 1943 the Court, on November 10, 1944, adopted a “harmonizing rule”, then numbered 3.27, reading as follows:

Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifests injustice or miscarriage of justice has resulted therefrom.

This rule continues in force as the present Rule 84.13(c). There is nothing in the text of the rule which excludes default judgments from its compass. In fact, there are cases to the contrary in which plain error has been found in the award of damage to the plaintiff on a 74.10 hearing, following default. None of these cases was cited in Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982), heavily relied on in Vonsmith, or in the two Vonsmith opinions. In Riley v. White, 231 S.W.2d 291 (Mo.App.1950), the St. Louis Court of Appeals reversed the damage portion of a default judgment, in which there was no indication that a motion to set the judgment aside had been filed in the trial court, and in which the point was not even raised in the defendant’s brief on appeal. The opinion reads as follows:

As sometimes happens in trials by default, the evidence as to the second count appears to have been presented hurriedly and without proper regard for its probative value to prove the issues being tried. The practice should be exactly the opposite. Where a party seeks a judgment against another who is in default and not represented by counsel, he should proceed with even more care than usual to see that all requirements of the law are met. This for the very reason that the other side is not represented.
Moreover, we are of the opinion that Supreme Court Rule No. 3.27 was made to be utilized in just such a situation as we have before us. That rule provides that plain errors affecting substantial rights may be considered on appeal in the discretion of the court although not raised in the trial court nor preserved for review ‘when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.’ The principle underlying the above rule was applied by our Supreme Court prior to the adoption of said rule although it was accompanied by warnings of caution in its application. See State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233.

The damage portion of a default judgment was also reversed in Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150 (Mo.App.1973). The court held that the plaintiff in a default situation did not have to prove the factual allegations of his pleading, but drew a distinction as to the damages which were proved in the Rule 74.10 hearing. To the same effect is Decker v. J.E. Sieben Construction Co., 492 S.W.2d 155 (Mo.App.1973) decided the same day.

Finally, in Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982) the Court of Appeals, Western District, citing Riley v. White, supra, reversed the damage portion of a judgment entered by default and remanded the case for further hearing. The opinion states at p. 718:

It is error to return damages not supported by evidence.... To allow the $60,000 award for actual damages to stand on the sparse proof would be a manifest injustice_ That the judgment was by default does not excuse the legal requirement that probative evidence sustain the adjudication of the un-liquidated claim for damages. Riley v. White, 231 S.W.2d 291, 298[11-12] (Mo.App.1950).

The authority adduced in Vonsmith is scanty indeed, when posed opposite the cases just cited. Our opinion cites only the ancient case of Gelston v. Hoyt, 13 Johns. 561 (N.Y.1816), which was handed down under a practice far different from ours, and in which the appellate court affirmed the judgment of the trial court rather than dismissing the appeal. The Court of Appeals in Vonsmith relied primarily on its own sketchy opinion in Blackmore, which did not consider the analysis detailed above or any of the pertinent cases here cited. Because the Missouri statutes and rules are so clear, cases from other states have minimal value. Even so, authorities holding that an appellate court “lacks jurisdiction” over an appeal from a default judgment are extremely rare.

Section 512.160.1 has been literally copied into Rule 84.13(a) and former Rule 3.27 is now Rule 84.13(c). We of course may modify statutes pursuant to Art. V, Sec. 5, of the Missouri Constitution, and the rule will prevail over the existing statute. Here there is no conflict and it is patent that the Court of Appeals has jurisdiction to exercise the discretion conferred upon it by Rule 84.13(c).

The principal opinion makes much of the defendant’s failure to move to vacate the final default judgment. At the time the defendant was alerted to the judgment, the 15-day period for filing a motion to set the judgment aside had expired. Rules 73.-01(a)(3); 78.04. No motion to vacate could then be filed. An appellate court might impose sanctions on a party who appealed while there was time to file a motion in the trial court, but this defendant had no such opportunity. The “backdoor appeal” provisions of § 512.060, and the “plain error” rule recognize that there may be occasions for aiding a party who has been negligent. The matter is one of discretion.

It is the sense of Rule 74.10, that the trial judge act judicially in assessing damages at a unilateral hearing following default, rather than rubber stamping the plaintiff’s demands. There is no reason why this action should not be scrutinized under the plain error rule if a lawful appeal is filed.

The principal opinion simply accepts Vonsmith as law, uncritically. I have given careful attention to the attempt in the concurring opinion to bolster Vonsmith and find it a masterpiece of circularity. If § 512.160.1 is jurisdictional as to any point not presented to the trial court, it is jurisdictional as to all which, on the basis of authorities here cited, it clearly is not. The short answer to the citation of Art. V, Sec. 3 in support of the assertion that court rules may not enlarge the right of appeal is that the plain error rule (then 3.27, now 84.13(c)) was in place when the Constitution of 1945 was adopted. Cases directly in point are cited in this opinion; those cited in the concurrence are not applicable. To the cases in point may be added Green v. Green, 623 S.W.2d 265 (Mo.App.1981), in which the court refused to review the issue of liability in a default judgment, but did remand for further findings on the division of property. Had the Court of Appeals followed its own precedents, Vonsmith probably would have been decided differently and would never have reached this Court. It is unfortunate that, on the basis of inadequate presentation and inadequate research, we perpetuate a decision which deprives the appellate courts of effective discretion in doing justice.

II.

The Court of Appeals, bowing to Von-smith, held that it was without jurisdiction to entertain a direct appeal from the judgment but found that the judgment was so lacking in evidentiary support as to demonstrate “irregularities” correctable on motion under Rule 74.32. The principal opinion holds, in accordance with established doctrine, that the defendant’s motions, variously named, were not properly filed in the trial court because the case was on appeal at the time, and that the trial court was without jurisdiction to entertain any kind of motion in the case. Inasmuch as it then goes on to rule the issue, I express my views also.

I have already commented on the rigidity of the motion to set aside a default. The limitation of the irregularity remedy as set out in the principal opinion has substantial support in the case law, but the text of Rule 74.32 contains no such limiting language. If we are to adhere to Vonsmith I believe that the concept of irregularity should be enlarged so as to cover the serious disregard of Rule 74.10. I would allow the trial court to review the transcript of the hearing on default, to determine whether the default judgment is minimally supportable. The use of Rule 74.10 for this purpose would have the advantage of affording a hearing, which the plain error rule does not, and might be a more efficient judicial tool.

III.

It has been suggested that some form of notice of the hearing on damages following interlocutory judgment of default should be afforded, and that the failure to do so has constitutional dimensions. The principal opinion responds with the proposition that no notice to a party in default is required. See Rule 43.01(a). If Vonsmith is to stand the Court should give consideration to a rule requiring either notice of a hearing on a default judgment to assess damages, or notice of the entry of final judgment by default, so that a timely motion to set aside may be filed. Only a reasonable attempt at notice, as by mailing to the last known address, should be necessary. If this is undertaken, it should make no difference if the attempt at notice does not reach the defaulting party. A requirement of notice would provide some check on the arbitrary action of a trial judge.

Notice is perhaps more important in a case like this, in which there is no explicit prayer for damages because of Rule 55.05, adopted to comply with Laws of 1976, p. 837, H.C.S.H.B. 1307. It is hornbook law that relief on default may not exceed that prayed for in the petition. See Rule 43.-01(a). Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973). The lack of notice presents a problem of particular concern when the defendant does not really know what he is up against until he learns of the final judgment entered.

IV.

I believe that Judge Welliver has astutely perceived the practical problems attending the uncritical upholding of default judgments, and I join in his dissenting opinion.

The panel of the Court of Appeals which heard the case was of the opinion that the final judgment was seriously at fault. We have the authority to decide the entire case and to apply the plain error rule, 84.13(c), if persuaded that it should be applied. I believe, however, that it is preferable to re-transfer the case to that court, which, having been instructed as to the scope of its appellate jurisdiction, may scrutinize the record and apply the discretion embodied in the “plain error” rule, if it finds fault in the judgment sufficient to meet the very high standards of that rule. Whether the concept of “irregularities” applied by the Court of Appeals is more or less restrictive than the concept of “plain error” should likewise be for the Court of Appeals. But it is inappropriate for us either to dismiss the appeal or affirm the judgment, in view of the Court of Appeals’ reservations.

      . Examples of irregularities include: (1) failing to provide required notice, Murray v. United Zinc Smelting Corp., 263 S.W.2d 351 (Mo.1954); Pikey v. Pikey, 605 S.W.2d 215 (Mo.App.1980), (2) rendering a judgment for an amount greater than the petition prayed for, Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973); Boggess v. Jordan, 283 S.W. 57 (Mo.App.1926), (3) failing to appoint a guardian ad litem to protect the interests of a minor, McDaniel v. Lovelace, 439 S.W.2d 906 (Mo.1969), modified on other grounds by rule change, see Hawkins v. Hawkins, 533 S.W.2d 634 (Mo.App.1976), and (4) entering a judgment prematurely, ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28 (Mo. banc 1983).

      . Defendant cites Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (banc 1950), to support the requirement that a plaintiff notify a defendant in default when the hearing on damages will be conducted. In Hoppe the trial court, sua sponte, ordered a new trial without giving notice or a hearing to the parties. A statute gave the trial court the power to order a new trial within 30 days of a judgment, but the Court had to prescribe the manner in which the power could be exercised. The Court held reasonable notice was required because the rights of persons and property were at issue. The key factor was that the adversely affected party had no notice that his interests were being considered. Hoppe does not control the present case because Dr. Suggs had notice. He received a valid summons and proceeded at his own risk.
      Defendant argues that the only two cases to consider the constitutionality of notice mandate the judgment be set aside for irregularity. His conclusion is incorrect. He cites In re Estate of Sympson, 577 S.W.2d 68 (Mo.App.1978). Sympson was a statute ex parte action, not a default. The court held that the constitution may independently impose notice requirements when a proceeding directly affects a party. The facts mandated notice because no notice was ever sent to the adversely affected parties, and the ex parte action was taken in the middle of an actively contested dispute. In the instant case notice was originally served and defendant did not act. The facts that made failure to send notice in Sympson a violation of due process are not present in the instant case. Traders Bank of Kansas City v. Cherokee Investment Co., 642 S.W.2d 122 (Mo.App.1982), also imposed a notice requirement as a matter of due process. Traders is distinguishable because defendant was actively involved, and the notice involved the disposition of defendant’s motions. No case cited by the defendant holds the default procedure unconstitutional. Reasonable notice was given by an initial summons that advised defendant of the consequences of default. Defendant did nothing. All cited cases are distinguishable because they involved a participating defendant.

      . The parties to Vonsmith did not brief the question of "jurisdiction” of the Court of Appeals over an appeal from a default judgment. The issue was injected into the case by the majority and concurring opinions in the Court of Appeals, and was not briefed when the case was before us.

      . Most cases simply say that points not properly preserved are "not before us." Lincoln Credit Co. v. Peach, 636 S.W.2d 31 (Mo. banc 1982); Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161 (Mo. banc 1975); Stahlheber v. American Cyanamid Co., 451 S.W.2d 48 (Mo.1970); Robbins v. Robbins, 328 S.W.2d 552 (Mo.1959).

      . Laws of 1943, p. 353, 395, § 140.

      . See Riley v. White, 231 S.W.2d 291 (Mo.App.1950); Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150 (Mo.App.1973); Decker v. J.E. Sieben Construction Co., 492 S.W.2d 155 (Mo.App.1973); Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982).

      . A review of cases from other jurisdictions supports the proposition that an appellate court is not divested of jurisdiction to consider an appeal from the default judgment itself. See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind.1983); Ney v. Polite, 399 A.2d 527 (Del.1979); Vogel v. Roberts, 202 N.W.2d 387 (N.D.1972); Byrer v. Robbs Trust Company, 105 Ariz. 457, 466 P.2d 751 (1970); Williams v. Kansas State Highway Commission, 194 Kan. 18, 397 P.2d 341 (1964).

      . See L.J. Ross, Co. v. Vaughn, 683 S.W.2d 643 (Mo.App.1984), in which the court holds that a motion to vacate filed more than 15 days but less than 30 days after judgment is sufficient to vest jurisdiction even though not ruled upon within 30 days of the date of judgment.

      .There are indications in the file that the defendant denied receiving the summons or knowing about it and that it was served on another person in his office who failed to give it proper attention. By established Missouri law the court could not look behind this return, Williamson v. Williamson, 331 S.W.2d 140 (Mo.App.1960); Johnson v. Wilson Estate, Inc., 256 S.W.2d 297 (Mo.App.1953), even though service on an employee would not be in compliance with Rule 54.13(a)(1). It is interesting that under present Rule 54.22, modified under the compulsion of Laws of 1984, H.B. 947, § 1, p. 792, effective August 13, 1984, the return is only "prima facie” evidence of the facts stated. The principal opinion imposes a severe penalty for vicarious negligence.

      . Rule 74.32 reads as follows:
      Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.

      . I refrain from expressing any view as to the correctness of the Court of Appeals' conclusion about the evidence.


source: Caselaw Access Project

author: BILLINGS, Judge. BLACKMAR, Judge,

license: Public Domain

text:
    STATE ex rel. CLEM TRANS., INC., et al., Relators, v. Honorable Gary M. GAERTNER, Judge St. Louis City Circuit Court, Respondent.
    No. 66319.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Dissenting Opinion Modified April 30, 1985.
    Rehearing Denied April 30, 1985.
    John D. Warner, Jr., Joseph M. Korten-hof, St. Louis, for relators.

      Gerald M. Dunne, Samuel W. Panos, St. Louis, for respondent.
   BILLINGS, Judge.

This is a proceeding in prohibition. The trial court overruled relators’ separate motions to dismiss a damage suit pending in the Circuit Court of the City of St. Louis. Relators request that this Court order the lower court to dismiss the suit because of lack of jurisdiction and venue. We quash our preliminary order.

Plaintiff in the pending suit is a resident of the City of St. Louis. She alleges she was injured when an automobile in which she was riding and being driven by a named individual defendant, also a resident of the City of St. Louis, was struck by a tractor-trailer in Illinois; that the rig was owned by relator Clems-Trans, Inc., and being driven by its employee, relator Lucia. Relators are named as defendants in the suit. The petition is silent as to residency of either relator.

The record in this proceeding is completely devoid of the manner of service of process on relators and the sufficiency of service on them has not been called into question by a motion to quash service. Allegations in plaintiffs petition and grounds advanced by relators in their motions indicate that personal jurisdiction over the rela-tors may very well turn on undetermined factual matters. Where personal jurisdiction turns upon some fact to be determined by the trial court, its ruling that it has jurisdiction, if wrong, is simply error for which prohibition is not the proper remedy. State ex rel. Fabrico v. Johnson, 239 S.W. 844 (Mo. banc 1922). Excess of jurisdiction must be clearly evidenced. State ex rel. Tarrasch v. Crow, 622 S.W.2d 928 (Mo. banc 1981). Further, the extraordinary writ of prohibition should not be used to allow an interlocutory appeal of alleged trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983).

The preliminary order in prohibition is quashed.

HIGGINS, GUNN and DONNELLY, JJ., concur.

BLACKMAR, J., dissents in separate opinion filed.

RENDLEN, C.J., and WELLIVER, J., dissent and concur in separate dissenting opinion of BLACKMAR, J.

BLACKMAR, Judge,

dissenting.

The sole question in this case is whether the individual and the corporate defendant may be subjected to the jurisdiction of a Missouri court, to answer a claim of damages for personal injury caused by an accident in Illinois, when service is made by means of the longarm statute, § 506.500, RSMo 1978, reading as follows:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

The principal opinion says that the “record in this proceeding is completely devoid of the manner of service of process ...” Counsel for the respondent admitted at the hearing, after some sparring, that service was had under the longarm statute, and that it was effected by personal service in California. The reference to the “record” is inappropriate. Prohibition is an original action in this Court, rather than appeal in which we review a record. Counsel have a duty to cooperate in eliminating sham issues and providing correct statements of undisputed facts. It is also appropriate to obtain from the circuit court the original summons and return as to each defendant. These show that service was had in California.

There is absolutely no basis in law for service outside Missouri under the longarm statute, on Louis Lucia, the individual defendant, for an accident which happened in Illinois. The statute requires some act by the individual in Missouri. The principal opinion states that the petition is silent as to the residence of the individual defendant. The numerous statements in the file that he resides in California are not disputed. The plaintiff, furthermore, took the necessary steps to obtain service outside the state, and there is no claim that Lucia is a resident of Missouri. He should not be subject to a harassing suit in Missouri when there is no basis for personal jurisdiction.

The principal opinion asserts that “the sufficiency of service ... has not been called into question by motion to quash service.” The motion “to dismiss for want of venue and jurisdiction” is authorized under Rule 55.27(a)(2), and is sufficient to raise the issue of jurisdiction over the person. It is the substantial equivalent of a motion to quash service. State ex rel. Newport v. Wiesman, 627 S.W.2d 874 (Mo. banc 1982).

The corporate relator filed an affidavit in the trial court, asserting that it

... does not conduct any business in the state of Missouri with the exception that [it] may transit the state of Missouri on interstate business.

The plaintiff seeks to traverse this allegation simply by an amendment to his pleading. This procedure is not proper. Rule 55.28 provides that a motion may be supported by affidavit and heard on affidavit, unless the Court orders otherwise. The rule existed in this essential form long before Missouri had a summary judgment procedure. The court should take statements of fact in an affidavit as true unless traversed by opposing affidavit. Affidavits may not be used as evidence, but may be used to determine whether there are genuine issues of fact. The courts should require the cooperation of both parties in presenting the facts known to them. Just as in the case of a motion for summary judgment, a pleading should not be sufficient to pierce the factual allegations of an affidavit.

Even if we take the plaintiffs attempt at amendment by interlineation as an offer to prove the facts there stated, there is no basis for longarm service on account of an accident outside Missouri. The plaintiff apparently seeks to establish that the defendant does more than simply cross Missouri in the course of interstate transit, in asserting that it “delivered its products and services through the stream of commerce of the state of Missouri, with the expectation that they would be purchased and used by Missouri residents ... and traversed the highways of the state of Missouri and other open and private roads in said state on a regular basis.” These allegations, even if proved, would not authorize longarm service in a case involving an accident in Illinois. By § 506.500, longarm jurisdiction is strictly limited to claims arising out of the enumerated acts.

Respondent cites State ex rel. Newport v. Wiesman, 627 S.W.2d 874 (Mo. banc 1982) in support of his jurisdiction. The case is not in point. It holds that an aircraft manufacturer may be subjected to jurisdiction in Missouri in a products liability action when it maintained service facilities for aircraft of its manufacture in Missouri. We held that there was a substantial Missouri element in the sale of the aircraft, even though the actual sale took place outside Missouri. The accident here in issue had no Missouri incidents. The plaintiff’s place of residence, and treatment in Missouri, do not enlarge the Court’s jurisdiction over the out-of-state defendants.

I believe that there is sufficient information before us to support the issuance of an absolute rule in prohibition. Perhaps the defendants’ affidavits were incomplete in failing to make a complete statement of facts in their affidavit, but the plaintiff has simply tried to make a pleaded issue, and has failed to demonstrate any basis for longarm service. It is no small thing to hail people from California into the Missouri courts, or to require them to make burdensome discovery on preliminary issues. The plaintiffs should have the burden of demonstrating some shadow of justification for longarm service before being allowed to proceed.

The principal opinion states that prohibition is not appropriate “when personal jurisdiction turns upon some fact to be determined by the trial court.” I take it from this that the defendants are entitled to raise fact issues in further proceedings. The way is still open for the Court to decide these issues before trial.


author: BLACKMAR, Judge. DONNELLY, Judge,

text:
    STATE ex inf. Jeffrey S. GAVIN, Assistant Prosecuting Attorney, Butler County, Missouri, Respondent, v. William P. GILL, Jr., Appellant.
    No. 65944.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    As Modified April 30, 1985.
    Rehearing Denied April 30, 1985.

      John Welch, G.H. Terando, Poplar Bluff, for appellant.
    Mark A. Kennedy, Pros. Atty., Poplar Bluff, for respondent.
   BLACKMAR, Judge.

The appellant is a firefighter employed by the City of Poplar Bluff. On April 5, 1983 he was elected a district director of Butler County Fire Protection District. Compensation is limited by § 321.190, RSMo 1978, to an attendance fee not to exceed $30 per meeting. He was ousted of this office by the Circuit Court of Butler County, in an action of quo warranto filed by the prosecuting attorney, pursuant to the following statute:

No person holding any lucrative office or employment under this state, or any political subdivision thereof as defined in section 70.120, RSMo, shall hold the office of fire protection district director under this chapter. When any fire protection district director accepts any office or employment under this state or any political subdivision thereof, his office shall thereby be vacated and he shall thereafter perform no duty and receive no salary or expenses as fire protection district director. This section shall not apply to members of the organized militia, of the reserve corps, public school employees and notaries public. The term ‘lucrative office or employment’ does not include receiving retirement benefits for service rendered to a fire protection district, the state or any political subdivision thereof.

He appeals to this Court arguing, initially, that the City of Poplar Bluff is not a “political subdivision” of the state. He then argues that, if the statute applies to the City of Poplar Bluff, it violates the First Amendment to the Constitution of the United States and the Equal Protection Clause of the Fourteenth Amendment. We have jurisdiction because of the alternate contentions bringing the validity of the statute into question. State ex rel. Union Electric Company v. Public Service Commission of the State of Missouri, et al., 687 S.W.2d 162 (Mo. banc 1985).

The appellant’s first point is easily answered. Section 321.015 explicitly refers to § 70.120, which defines political subdivision as follows:

* * * * * *
‘Political Subdivision’ shall mean any agency or unit of this state which now is, or hereafter shall be, authorized to levy taxes or empowered to cause taxes to be levied;
* * * * * *

We take judicial notice that the City of Poplar Bluff, a third class city with an optional council manager government, is authorized to levy taxes.

We also find that the restrictions on the appellant’s right to hold public office, so long as he remains in his firefighter position, are valid. The First Amendment protects the right to participate in political activity and to seek and hold public office, but political involvements of public employees may be restricted if a sufficient public interest is shown. United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Pollard v. Bd. of Police Commissioners, 665 S.W.2d 333 (Mo. banc 1984). In determining the sufficiency of the public interest we should first scrutinize the statute in context. In some cases evidence may be necessary or helpful (cf. Pollard, supra), but this is not necessary if the public interest is apparent from the face of the statute. The Attorney General is a proper party to assert the public interest when a statute is challenged as unconstitutional, but is not a necessary party. Mo.S.Ct.Rule 52.12(b). We also must make a strong effort to sustain a statute when its constitutionality is challenged. When appropriate public interest is shown, judgments of wisdom and necessity are for the legislature alone.

Public bodies have an important interest in securing the absolute loyalty of their employees. Different governmental units frequently interrelate. See Missouri Constitution, Art. VI, sec. 16; § 70.220, RSMo 1978. The Legislature well might conclude that an employee of one governmental unit should not be eligible to serve as a member of the governing board of another. Given this conclusion, there is no less restrictive alternative. In the appellant’s situation the possibility of conflict is clear. He might be reluctant to approve as director a contract or agreement which would affect his duties as firefighter. If it need be shown that the public interest is compelling, we conclude that the test has been met.

The equal protection argument likewise fails. The exemptions refer to types of employment which are customarily part time, except for the exemption of “public school employees.” The legislature might appropriately conclude that public school employees are isolated from the normal course of political activity so that the possibility of conflict is minimal. A person in the position of the appellant is not normally permitted to assert unconstitutionality simply because others are exempted from a statutory disability which applies to him. See Otten v. Schicker, 655 F.2d 142, 146 (8th Cir.1981), affirming 492 F.Supp. 455, 459 (E.D.Mo.1980), which holds that a police officer is not denied equal protection simply because restrictions on his political activities are not likewise imposed on firefighters.

The judgment is affirmed.

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

DONNELLY, J., dissents in separate opinion filed.

DONNELLY, Judge,

dissenting.

In Anderson v. Celebrezze, 460 U.S. 780, 789-90, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983) the United States Supreme Court declared that “[cjonstitutional challenges to specific provisions of a State’s election laws * * * cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions. * * * Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. * * (Emphasis added.) See Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

In this case, the State has not articulated the precise interests asserted as justifications for the burden imposed by § 321.015. There is no record from which we can identify and evaluate them. And, to borrow from Mr. Justice Brennan: “There is no legislative history to explain its intended purpose * * *.” 457 U.S. at 980, 102 S.Ct. at 2852 (Brennan, J., dissenting).

In such a situation, what are we to do? Should the trial court and/or this Court put forward possible state interests and then evaluate them? I think not. Surely such action would be a distortion of the judicial process. I would decline to rule the constitutional issue presented on this appeal.

Until the General Assembly addresses the problem, I would look to the Attorney General to put forward the State interests in cases where the analysis articulated in Shapiro and its progeny is mandated. He is authorized to “appear and interplead, answer or defend, in any proceeding or tribunal in which the state’s interests are involved.” § 27.060, RSMo 1978. And if a “statute * * * is alleged to be unconstitutional * * * ” in a declaratory judgment proceeding, he is “entitled to be heard.” § 527.110, RSMo 1978. See Land Clearance for Redevelopment Authority of City of St. Louis v. City of St. Louis, 270 S.W.2d 58, 63 (Mo. banc 1954). He should be made a party in this cause for the purpose of defending § 321.015 from constitutional challenge.

I would reverse the judgment and remand the cause for new trial.

I respectfully dissent.

      . Section 321.015, RSMo 1978 was amended effective August 13, 1984 to exclude fire protection districts in second, third and fourth class counties. Counsel did not call this amendment to our attention. Appellant was elected to office April 5, 1983. Ouster, in an action of quo war-ranto, occurred April 4, 1984. Because ouster occurred prior to the statutory amendment, the Circuit Court was correct in its ruling. The general rule is that an officer must be qualified to hold office on the day his duties begin. Removal of a disqualification after duties have commenced does not entitle a person to remain in office. State v. Gray, 360 S.W.2d 642 (Mo.1962), 67 C.J.S., Officers, § 45.


author: PUDLOWSKI, Presiding Judge.

text:
    Sue Ann Christina FLOREA, Plaintiff-Appellant, v. James Delbert FLOREA, Defendant-Respondent.
    No. 47895.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.

      M.C. Sleater, Clayton, for plaintiff-appellant.
    Donald Heck, Clayton, for defendant-respondent.
   PUDLOWSKI, Presiding Judge.

On October 31, 1977, a decree of dissolution of the marriage was entered, granting appellant custody of. the minor child. In October, 1982, respondent filed a motion to modify, requesting custody of the minor child. The trial court sustained the motion to modify and transferred custody. We affirm.

Appellant, Sue Ann Christina Florea, raises one point on appeal. Appellant contends there was no substantial evidence to support the modification and transfer of custody of the minor child, Leo James William Florea (Jimmy), to respondent, James Delbert Florea.

In resolving this issue, we look to the best interests of the child pursuant to the statutory “relevant factors” specified in Section 452.375 RSMo (Supp.1982). Leimer v. Leimer, 670 S.W.2d 571 (Mo.App.1984). The relevant factors are:

(1) The wishes of the child’s parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school and community;
(5) The mental and physical health of all individuals involved; and
(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child.

The evidence taken in light most favorable to respondent supports the trial court’s findings. The evidence shows that respondent exercised his temporary custody rights as often as possible. Additionally, respondent expressed a sincere desire for custody of his son. Further, between 1978 and 1982, appellant has consistently moved her family. The evidence adduced at the hearing revealed no less than seven changes of address during this time period. Gene Schultze, principle of Combs School in the Ferguson-Florissant School District, testified that if children do move consistently, it has a negative impact on their educational career. The trial court, after hearing the evidence and observing the witnesses determined that it was in the best interest of the minor child if custody was transferred to respondent. The evidence supports this finding.

Appellant, in conjunction with her previous argument, argues that the court’s findings did not constitute sufficient or significant changed circumstances as to justify a change of custody. The trial court found:

That the petitioner’s having changed her place of residence ten times since the entry of the decree of dissolution; having taken the minor child from the State of Missouri without prior consent of the court or notice to respondent; having placed minor child in four or five different schools; and having lived with a man, not her husband, and the minor child for four years constitutes a sufficient change in the circumstances of both the minor child and of custodian of the minor child to warrant a change in custody and that said modification is necessary to serve the best interest of the minor child.

A move, while only one factor which may be considered in determining what is in the best interest of a child, can be a decisive factor when the move wrenches the child from the security of association with the non-custodial parent. Knoblauch v. Jones, 613 S.W.2d 161 (Mo.App.1981). The trial court specifically found that appellant removed Jimmy from the state without notice to respondent.

Additionally, it is generally accepted that adultery, standing alone, does not require ipso facto a change of custody of children from one parent to the other. In Re Marriage of F, 602 S.W.2d 227 (Mo.App.1980). However, in the case at bar, appellant’s habitation was not the only changed circumstance found by the court. Appellant’s action in placing Jimmy in four or five different schools played a role in the trial court’s decision to transfer custody. The trial court did not err in modifying and transferring custody.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: KELLY, Judge.

text:
    Michael REINAGEL and Doris Reinagel, Plaintiffs-Appellants, v. EDWIN COOPER, INC., Defendant-Respondent.
    No. 48943.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.

      Theodore H. Hoffman, St. Louis, for plaintiffs-appellants.
    Robert L. Nussbaumer, St. Louis, for defendant-respondent.
   KELLY, Judge.

This is an appeal from an order of the Circuit Court of the City of St. Louis sustaining defendant Edwin Cooper, Inc.’s motion to dismiss plaintiffs two count petition for lack of subject matter jurisdiction. For reasons hereinafter stated we affirm.

Michael Reinagel, appellant, (hereinafter “Reinagel”) was employed by Columbia Insulation, Inc., as an insulator on November 6, 1980, and commenced his duties at the plant of Edwin Cooper,. Inc., (hereinafter “Cooper”) at its Sauget, Illinois plant. Cooper is engaged in the business of manufacturing gasoline additives from petroleum products. Reinagel’s job concerned insulation of pipes in the plant. On the date aforesaid Reinagel was injured when some hydrogen sulfide gas escaped into a storage shed on the plant premises when he was working and caused him to sustain injuries.

Reinagel and his wife, Doris, instituted a two Count action seeking damages for his injuries in Count I, and damages for her loss of consortium in Count II of the petition. Cooper filed a motion for summary judgment together with supporting affidavits on or about the 22nd day of September, 1983. Thereafter, on or about the 29th day of November, 1983, Cooper filed a motion to dismiss plaintiffs’ First Amended Petition for lack of subject matter jurisdiction to which was attached a deposition and the affidavits attached to the previously filed motion for summary judgment. On June 15, 1984, the trial court entered its order sustaining Cooper’s motion to dismiss both counts of plaintiffs’ First Amended Petition without prejudice because it concluded that Mr. Reinagel was a “loaned employee” of Cooper.

The sole Point on appeal is whether the trial court erred in finding that Reinagel was a “loaned employee” of Cooper.

A motion to dismiss for lack of subject matter jurisdiction is primarily the proper method for raising the exclusivity of the Worker’s Compensation Law. Zahn v. Associated Dry Goods, Corp., 655 S.W.2d 769, 772[3] (Mo.App.1983); Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App.1982). A court should grant a motion to dismiss for lack of subject matter jurisdiction whenever it “appears” that the court lacks such jurisdiction. Rule 55.27(g)(3). “As the term ‘appears’ suggests, the quantum of proof is not high. It must appear by the preponderance of the evidence that the court is without jurisdiction. * * * The burden of proof is lower since the dismissal is without prejudice and because any other actions taken by a court without subject matter jurisdiction are null and void.” Zahn, supra, l.c. 772.

The question of the applicability of the Worker’s Compensation Law is usually a factual one. Roberts v. Epicure Foods, Co., 330 S.W.2d 837, 840 (Mo.1960), and therefore it is left to the sound discretion of the trial court. The movant will not be required to show by unassailable proof that there is no material issue of fact because the trial court decides only the preliminary question of its own jurisdiction, which is not a decision on the merits and is without res judicata effect. Zahn, supra, l.c. 772.

The trial court had before it the plaintiffs' First Amended Petition, the affidavits of plaintiff Michael Reinagel, James Zoel-ler, Cooper’s Construction Superintendent on the date of the occurrence, Chester Ko-pec, Construction Clerk of Cooper, and Guido Serafini, president and owner of Columbia Insulation, Inc., the deposition of plaintiff Michael Reinagel, Frank Trenholm, the foreman for Columbia Insulation, Inc. on the site, and Cooper’s motion to dismiss for lack of subject matter jurisdiction.

The alleged occurrence took place in Illinois and so far as we can ascertain from the record on appeal Illinois is clearly the state with the most significant relationship to the occurrence and the parties. We shall therefore apply the substantive law of Illinois in reaching our decision. S.H.A. Ch. 48.

The primary test for establishing a loaned-employee relationship is the right to control the manner in which the work is to be done. Raymond Concrete Pile Co., v. Industrial Comm., 37 Ill.2d 512, 229 N.E.2d 673, 675[3] (1967). Since this is a factual question it is to be left to the sound discretion of the trial judge, and after review of the record on appeal we find the evidence submitted by Cooper in support of its motion is substantial and the trial court did not abuse its discretion in granting Cooper’s motion to dismiss for lack of subject matter jurisdiction.

Judgment affirmed.

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


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Michael NUNN, Appellant.
    No. 47992.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Richard H. Sindel, Clayton, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Michael Nunn was convicted of arson in the first degree; burglary first degree; assault in the first degree and two counts of assault third degree. No jurisprudential purpose would be served by an extended written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


author: DOWD, Presiding Judge.

text:
    In re the Marriage of Sanford KORNBERG, Petitioner-Respondent, v. Elinor KORNBERG, Respondent-Appellant.
    No. 48083.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.

      Frank Susman, Susman, Schermer, Rim-mel & Parker, St. Louis, for respondent-appellant.
    Michael D. Walther, Todt & Walther, Clayton, for petitioner-respondent.
   DOWD, Presiding Judge.

Appellant-wife in an appeal from a decree of dissolution cites as trial error: (1) failure to award her maintenance, attorney fees and costs; (2) the award of $16,000 in government bonds to her was error because there was no evidence that the bonds existed; (3) the division of the marital property was against the weight of evidence; (4) the associate circuit judge had no jurisdiction to hear the case.

Review of this court-tried case is conducted under Rule 73.01 and the decree will be sustained unless the record reveals no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Due regard will be given to the trial court’s ability to judge the credibility of the witness. Where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part or none of the testimony. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). In a court tried case the judgment is presumed to be correct. Pruden tial Property and Cas. Ins. Co., Inc. v. Cole, 586 S.W.2d 433, 434 (Mo.App.1979).

Initially, appellant questions the jurisdiction of the associate circuit judge to hear this contested dissolution case. The respondent originally filed his action in the Circuit Court of St. Louis County. The presiding judge transferred the case to the associate division of the circuit court. Under the guidance provided by our Supreme Court in City of Kansas City v. Rule, 673 S.W.2d 21, 23 (Mo. banc 1984), we find the associate circuit judge had jurisdiction.

As to the remaining issues, the manner of dividing marital property and whether to allow maintenance, cost or attorney’s fees all lie within the wide discretion of the trial court. Hebron v. Hebron, 566 S.W.2d 829 (Mo.App.1978). Under the Dissolution of Marriage Act, the division of marital property need not be precisely equal, but must nevertheless be just. Meyerpeter v. Meyerpeter, 664 S.W.2d 11 (Mo.App.1983). As for maintenance under the Act, § 452.335 RSMo 1978 requires an award by the trial court only after it determines that one spouse lacks sufficient property or is unable to support [herself] sufficiently to meet [her] reasonable needs. Raines v. Raines, 583 S.W.2d 564, 567 (Mo.App.1979). Lastly, the trial court must consider the financial resources of the parties, when allocating cost and attorney’s fees. Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo. banc 1979). Being cognizant of these legal principles and the narrow scope of our review, we examine the record before us.

From a thorough review of the record, we find substantial evidence to support the trial court’s decree; it is not against the weight of the evidence; it does not erroneously declare or apply the law. The court based its decree on a finding that appellant’s separate, non-marital property was quite substantial. Appellant is a beneficiary of her mother’s estate valued at over $1,000,000 and has admitted in her brief that she received $80,000 from her father’s trust fund.

Considering appellant’s substantial separate non-marital property and her 57% ($90,000) share of the marital property, we find no abuse of discretion by the court. An extended opinion would have no prece-dential value. Rule 84.16(b).

The judgment of the trial court is affirmed.

CRIST and CRANDALL, Jr., JJ., concur.


author: KAROHL, Judge.

text:
    DePAUL COMMUNITY HEALTH CENTER, Plaintiff-Appellant, v. Rita C. TREFTS, Defendant-Respondent.
    No. 48634.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.

      Gerald Julian Bamberger, St. Charles, for plaintiff-appellant.
    William G. Buchholz, Clayton, for defendant-respondent.
   KAROHL, Judge.

Plaintiff hospital sued defendant patient to recover on an unpaid bill for medical services rendered to defendant. Defendant’s amended answer denied that plaintiff “... is a corporation duly organized and existing by law.” The trial court found that as plaintiff was not a corporation it could not prove its corporate existence and directed a verdict for defendant. Plaintiff appeals the resulting judgment against plaintiff DePaul Community Health Center, Daughters of Charity, a corporation, operating DePaul Community Health Center. Plaintiff seeks a new trial contending that: (1) the trial court erred in sustaining defendant’s motion for directed verdict as defendant’s answer to plaintiff’s first amended petition did not adequately raise the issue of plaintiff’s legal existence in compliance with Rule 55.13; and, (2) the trial court erred in denying plaintiff’s oral motion to amend its petition to change the name of plaintiff to that of the existing corporation, DePaul Health Center, and for leave to reopen its case and present evidence of DePaul Health Center’s corporate status and a prior change of name. Defendant submitted with her motion for directed verdict a document from the Secretary of State’s office indicating that there are no records in the care and custody of the Secretary of State which show that the DePaul Community Health Center, Daughters of Charity is now or ever has been registered as a Foreign or Domestic corporation or under the Ficticious Name Act.

The issue on appeal arises out of the following facts. The original petition alleges, “[t]hat at all times herein mentioned Plaintiff was and is a corporation duly authorized and existing under the law.” Respondent originally made a general denial to the entire petition. An amended answer reads, “[t]hat she is unable to either confirm or deny the allegations contained in paragraph 1 of Plaintiff’s Petition.” Defendant’s second amended answer reads, “[t]hat she denies that Plaintiff is a corporation duly authorized and existing under the law.” After the second amended answer was filed plaintiff filed a first amended petition realleging plaintiff, DePaul Community Health Center, Daughters of Charity, a corporation operating as DePaul Community Health Center was a corporation. Defendant reanswered with the same specific denial of plaintiff’s corporate existence pled in its second amended answer to the original petition.

Plaintiff argues that the express denial of its corporate existence was not a specific negative averment as required by Rule 55.13 as it fails to include supporting facts. Plaintiff relies on Want v. Leve, 574 S.W.2d 700 (Mo.App.1978) for the proposition that the practice of lulling a party into believing that all parties were correctly named should be condemned, and United Farm Agency v. Howald, 263 S.W.2d 889, 893 (Mo.App.1954) for the proposition that a defendant is obligated to raise this issue by specific negative averment which shall include such supporting particulars as are particularly within the pleader’s knowledge. However in Leve defendant did not specifically deny plaintiffs corporate existence and in Howald an amendment was granted. Neither case supports plaintiff’s view that due to the lack of particulars in the answer its corporate existence was not at issue and no proof of its existence was required. Defendant replies that plaintiff was equally aware of its nonexistence, that defendant had no particular knowledge unknown to plaintiff and Rule 55.13 does not require more than was given in the defendant’s answer.

In this case the nonexistence of plaintiff was the basis of defendant’s motion for directed verdict. The motion for directed verdict expressly contended that plaintiff is not a corporation and therefore that defendant was entitled to a verdict as a matter of law. Plaintiff conceded before both the trial court and this court that it is not a corporation. We distinguish this case from cases where the name of an existing corporation has been misstated.

On these facts we are confronted with an appeal by plaintiff-appellant, a non-existing corporation. We are obligated to review the record sua sponte for jurisdiction in the trial court. Justus v. Webb, 634 S.W.2d 567, 568 (Mo.App.1982). The motion for directed verdict at the close of all the evidence, supported by the uncontested record of the Secretary of State, justified a dismissal by the trial court because there was no longer a justiciable issue between existing parties. Garrison v. American Cab Co., 259 S.W.2d 96, 97 (Mo.App.1953). The plaintiff before the court had no interest in the claim and a judgment for either side could not constitute relief. State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176 (Mo. banc 1949).

As plaintiff is not an existing corporation it lacks standing and cannot appeal. Appeal dismissed.

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


text:
    In re the Marriage of Ursula R. WILHELM, Petitioner-Appellant, v. Kurt P. WILHELM, Respondent.
    No. 48223.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.

      Kenneth S. Lay, Clayton, for petitioner-appellant.
    George E. Schaaf, St. Louis, for respondent.
   KAROHL, Judge.

Petitioner wife appeals the part of dissolution decree relating to limited maintenance and the determination that two bank accounts and some corporate stock were separate property of the husband.

The parties were married in 1960, separated in September 1981 and the dissolution granted on December 6, 1983. Three daughters were born to the marriage all of whom are now adults. The youngest child was born in 1963. Wife is a graduate of the University of Missouri and has a lifetime teaching certificate issued by the Department of Education. Since 1971 she has had various parttime jobs. The parties lived in Columbia, Missouri until the separation when the wife moved to St. Louis leaving husband and the three children in the family home. At the time of the separation and by agreement of the parties wife took possession of $5,500 of family savings. During the separation she lived modestly and at the time of the trial she retained $2,000 of this sum and had deposited $2,000 to an IRA account. She was otherwise self-supporting during the period of separation by employment as a waitress, the manager of a snack bar during summer months, and as a house-sitter for homeowners on vacation. One month after the hearing she was to begin teaching under a one-year contract at a local private high school for $7,500 a year. The court found that during the year 1982 her earnings were $14,369. For many years she had been troubled by varicose veins in both legs and migraine headaches. Except for these complaints she is in good health.

Husband is a self-employed piano tuner. He reported net earnings in 1982 of $24,-495. He also received during the same year $2,034 in interest and $1,069 in dividends. The 1982 tax return reflects that he received $1,822 additional income from his employment which was not taxable because of the appropriate depreciation allowance on tax returns. In addition, he received $3,900 in rental income on real estate inherited from his father. The rental income was offset by $678.00 in expenses leaving $3,222 for his use. Husband testified that he placed the rental income in two bank accounts at the Centerre Bank of Columbia, Missouri and that the accounts contained between $4,400 and $5,000. Husband also testified that he owned in his own name 500 shares of Kimball International stock and 50 shares of Atlantic-Rich-field stock which had been purchased from rental income derived from the inherited real estate. The Kimball stock had a value at the time of trial of $39.00 per share and the Atlantic-Richfield a value of $51.25 per share making a total value for both stocks of $24,625.

The trial court found that wife is gainfully employed and self-supporting and therefore not entitled to statutory alimony. However she was granted limited maintenance of $400.00 per month for a period of twenty-four months. The trial court found the value of the family home in Columbia, Missouri to be $57,000 and provided that that amount should be divided between the parties in equal parts. The trial court also ordered the parties to divide equally other cash deposits, corporate stock investments and the value of husband’s Keogh plan found to have a value of $60,517.79.

We find no abuse of discretion in the award of limited maintenance. Wife was forty-eight years of age, not the custodian of children, and had demonstrated over the two-year period of separation that she was able to support herself. In addition, she will receive cash and stock having a value of at least $70,000 which may be used to increase her income. As we noted in Steinmeyer v. Steinmeyer, 669 S.W.2d 65, 68 (Mo.App.1984), a spouse who is financially self-sufficient at the time of the dissolution cannot complain that the maintenance is limited because she has attained the goal of self-sufficiency which maintenance is designed to achieve. We also deny wife’s contention that the limited maintenance in the amount of $400.00 per month was inadequate. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The trial court’s determination that the bank deposits containing rental income and the corporate stocks purchased with rental income are separate property of the husband was not supported by the evidence and misapplied §§ 452.330.2 and .3 RSMo Supp.1984. Income from separate property acquired subsequent to the marriage is presumed to be marital property. § 452.330.3 RSMo Supp.1984. Cain v. Cain, 536 S.W.2d 866, 870 (Mo.App.1976). The presumption may be overcome only upon proof that the property in question was acquired by gift or inheritance or in exchange for property acquired prior to the marriage. § 452.330.2 RSMo Supp.1984. The income from separate property acquired during the marriage does not fall within any of the excluded categories. It is marital property. In re Marriage of Williams, 639 S.W.2d 236, 237 (Mo.App.1982).

Husband concedes that the bank accounts and corporate securities may be marital property and has cited no authority to the contrary. He argues, however, that this part of the decree should not be disturbed because the trial court intended to distribute this property to husband. We do not read the decree to support that position. The trial court found a list of property including the stocks and bank accounts at issue not marital by reason of inheritance and decreed that such property “... shall remain the sole, separate and exclusive property of said respondent ...” Other bank accounts and corporate stocks found to be marital property were divided equally. Further, wife requested an equal division of marital property and husband did not advocate an alternative result. As the court incorrectly found the bank accounts and stocks purchased with the rental income to be separate property we remand for a just division.

We affirm the allowance of $400.00 per month limited maintenance for a period of twenty-four months. We reverse that part of the decree which found bank accounts and corporate stocks purchased from rental income on husband’s inherited and separately owned real estate to be separate property and remand to the trial court to determine the value of property acquired with the rental income and its just division.

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


text:
    STATE of Missouri, Respondent, v. Fred WINSTON, Appellant.
    No. 48583.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Doris Gregory Black, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Defendant, Fred Winston, appeals from his convictions, after a jury trial, of illegal possession of a Schedule II controlled substance, to-wit, phencyclidine and illegal possession of a Schedule I controlled substance, to-wit, marijuana under thirty-five grams. He was sentenced to a term of imprisonment for five years on the Schedule II conviction and a concurrent term of imprisonment for one year on the Schedule I conviction. 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: MAUS, Judge.

text:
    _ M., Petitioner-Appellant, v. _ M., Respondent-Respondent.
    No. 13730.
    Missouri Court of Appeals, Southern District, Division Two.
    March 26, 1985.

      Douglas K. Crandall, Crandall, Crawford & Crandall, Carthage, for petitioner-appellant.
    Charles Buchanan, Joplin, for respondent-respondent.
   MAUS, Judge.

This is an appeal from a judgment in a marriage dissolution action. The husband was granted custody of two daughters, aged ten and six. The wife appeals.

The wife’s first point is that the court abused its discretion by using the custody award to punish her for marital misconduct and in failing to give adequate consideration to the children’s wishes and the interrelationship and environment in which the children would reside. A brief summary of facts will suffice for consideration of this point.

The parties married in August, 1970. They separated and the wife filed for a dissolution in September, 1983.

Both parents were employed. Neither would be available for full time personal care for the children. Each had made adequate provision for the care of the children while at work. Each could provide the children with the basic necessities of food, clothing and shelter. There was evidence that both participated in activities with the children. There was evidence the father could provide for the physical and emotional needs of the children and was willing and eager to do so. The wife admitted the husband was a good father to the children.

The wife in part relies on the daughters’ expressed preference for living with her. However, the children did not clearly express a strong preference to be with either parent. While the wishes of the children is a factor to be considered by the court, it is but one factor. It is not conclusive, but is to be weighed with all other relevant factors. Kanady v. Kanady, 527 S.W.2d 704 (Mo.App.1975).

There was evidence that the wife conducted an extra-marital affair with a person she dated before her marriage. She admitted that she was sexually involved with him at periods during her marriage, including the time of separation. This was a contributing factor in the breakup of the marriage.

Another episode was developed by the testimony of the wife. In approximately 1977 an unknown man reached wife by dialing a wrong number. The stranger continued to call wife. During the conversations, wife would pretend that she was having sex with the man and they would try to sexually arouse each other over the phone. Such conversations were numerous. The phone calls stopped after the stranger came to wife’s house and exposed himself to wife. After this incident, wife sought counseling at Ozark Mental Health Center.

Another item of evidence was that the maternal grandmother, at whose home wife and the children were living, had admitted to having an affair with a family friend, although the affair was now terminated.

The mother relies on the fact that none of these activities took place in the presence or with the knowledge of the children. A good environment and a stable home is generally considered as the most important single consideration in custody cases. In re Marriage of P.I.M., 665 S.W.2d 670 (Mo.App.1984). Adverse consideration of past or present inappropriate activities of a parent is not limited to conduct that has in fact detrimentally affected the children. Ryan v. Ryan, 652 S.W.2d 313 (Mo.App.1983). There must be considered what conduct a parent may inspire by example, or what conduct of a child a parent may foster by condonation. Past and present activities may be a reliable guide to the priorities of a parent. See generally, R. v. R., 685 S.W.2d 598 (Mo.App.1985).

Husband and wife attempted a reconciliation, but it only lasted a few days. Upon separation, the mother expressed a desire to be free to come and go as she pleased.

The trial court has the superior ability to see and judge the demeanor of the witnesses. The standard of review in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) is applicable to determinations' of custody. B._ v. L._, 558 S.W.2d 738 (Mo.App.1977). There is no basis for thinking the trial court did not weigh all relevant factors. Kanady v. Ka-nady, supra. Although the trial judge did not make specific findings of fact on the issue of custody, the evidence on that issue must be considered most favorably to the result reached. McKnight v. McKnight, 638 S.W.2d 789 (Mo.App.1982). There was evidence to establish a basis for the award of custody. That award is affirmed in accordance with Murphy v. Carrón, supra.

The wife’s second and last point on appeal is that the court erred in awarding husband attorney’s fees for this appeal. The relevant statute, § 452.355, RSMo 1978, states that after considering all relevant factors, including the financial resources of both parties, the court may award reasonable fees. “Only when the trial court is shown to have abused the broad discretion with which it is vested in this regard should its award (or orders) be overturned.” Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo. banc 1979). When considering the financial resources of both parties, the court looks not only at the income of the respective parties, but also the expenses incurred by each of them. There was substantial evidence that husband’s expenses exceeded his income and that wife’s expenses were less than her income. The award of attorney’s fees was not an abuse of discretion and is affirmed.

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


text:
    Gary N. PETRI, Petitioner-Appellant, v. Michelle T. PETRI, Respondent, v. Mr. & Mrs. Neal PETRI and Sandra Petri, Intervenors-Appellants.
    No. 47698.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.

      William R. Gartenberg, Clayton, for appellants.
    Irvin R. Zwibelman, Clayton, for respondent.
   KAROHL, Judge.

Husband and his parents, as intervenors, appeal dissolution decree claiming error in the custody award of three children to wife. Husband appeals child support of $35.00 per week per child; award of 1977 AMC Matador automobile to wife; and, an order that husband repay wife $7,000 to replace a like amount in government bearer bonds which the trial court found he took from wife several months after the parties separated. The bearer bonds were the last of a $25,000 trust fund of wife which was her separate property.

The claim of error on the property and money awards borders on the thin edge of frivolous appeal. Hence they are easily resolved. The automobile was purchased in joint names and is marital. However, it was purchased with part of wife’s separate trust fund. The award was well within the trial court’s discretion although it was the only operating automobile owned by either party at the time of the dissolution.

The child support of $35.00 per week per child was not an abuse of discretion in view of husband’s net earnings of $1,200 per month. The amount is not excessive and by his own testimony he was spending substantially the same amount for the support of his children during the separation of the parties.

The order that husband repay wife $7,000 which the court found husband took from wife was supported by her testimony that he took her bearer bonds in that amount. Although he denied taking or knowing the disposition of her bonds it was for the court to determine credibility of witnesses. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 495 (Mo. banc 1980). Her version was supported by her testimony that husband took the bonds, the children’s birth certificates and the parties’ marriage license at the same time and from a single container. Husband later returned the marriage license. The trial court expressly found wife’s testimony on this issue more credible than husband’s.

The trial court awarded primary custody of the three children, ages twelve, nine and five, to wife. Husband did not request custody for himself. He was not living with his parents at the time of the dissolution hearing but with another woman by whom he had a four-month old child. He wanted the children awarded to his parents. Two months after the parties separated husband pre-planned to have temporary custody of the children on a Sunday and without the knowledge of wife to secure from her home the children’s clothing and toys. This was done after husband arranged his dissolution petition. He led wife to believe the children would be returned but admitted he never intended to keep that commitment. He testified he was following instructions of counsel. He had already signed a petition for dissolution which alleged he had custody of the children although they were, at the time of signature, in wife’s custody. The children were thereby “seized” on a Sunday and husband’s petition for dissolution was filed the next day. Wife thereby lost custody pending an order of the trial court. § 452.310.3 RSMo 1978. Intervenor paternal grandfather thereafter allowed wife to see her children in an automobile parked in front of his home, one child at a time.

The evidence does not disclose much about the intervenor grandparents. Both are employed. They have a daughter, age twenty-five, who may soon be moving from the home. Their ages are not made part of the record.

Neither husband nor intervenors alleged in their pleadings that wife was an unfit mother. There is no substantial evidence of unfitness of wife as a mother. The only contention of “unfitness” of wife offered by husband or intervenors was that between separation of the parties in August 1980 and “seizure” in October 1980 wife did not attend to all the children’s needs and during temporary custody after “seizure” the children were returned dirty and sickly. Wife denied these charges. Although appellants also mentioned the fact that during the separation of the parties wife had a fourth child there was no evidence connecting this event with the children of the marriage. Appellants also refer to wife’s testimony about her bearer bonds as being conflicting and perjury. We find no such conflicting testimony.

The intervenor-grandmother’s testimony was brief and insubstantial. Intervenor-grandfather described his fine home and how well the children had functioned in his home. There was very little activity on his part with the children. For example he had never talked with the children’s school teachers. He did not deny but could not recall wife’s request for the return of her children. He assisted in taking the children “until we get this straightened out.”

The thrust of husband’s and inter-venors’ requests for custody was premised on how well the children were doing with the grandparents and not upon the unfitness of wife as mother. They argue that “... when the court finds that each parent is unfit or unable, and that it is in the best interest of the child....” The award of custody should be to a third party. § 452.-375.B RSMo Supp.1984. No such finding was compelled by the evidence. Further, the “scheme of seizure” is not a worthy foundation upon which to deny a proper mother the custody of her children or the children of the qualities and benefits of a mother. “Where the courts are faced with a choice between the natural parent and a third person, they have usually been unwilling to disregard the traditional belief that it is in the best interests of a young child to be placed in the custody of a natural parent, unless that natural parent is wholly unsuitable.” In re Marriage of Wofford, 589 S.W.2d 323, 326 (Mo.App.1979). There was affirmative evidence of wife’s love and affection for her children and her ability to care for them. During the original two months of separation she held three jobs while husband provided a total of $60.00 for the support of the children. She acquired a three bedroom home for her family just before the dissolution hearing. In addition to evidentiary support there is a strong presumption in favor of custody by the natural parent where not overcome by the evidence. Ex parte Archer, 253 S.W. 1095, 1096 (Mo.App.1923). The position of the trial court to consider all the evidence and factors is superior to that of an appellate court. On these facts its order should not be disturbed. Chastain v. Chastain, 632 S.W.2d 291, 292-293 (Mo.App.1982).

We affirm.

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

      . We would prefer to believe this was a misunderstanding.