author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sammy Lee CASEY, Defendant-Appellant.
    No. 13631.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 11, 1984.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 28, 1984.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Wesley D. Coleman, Asst. Public Defender, Caruthersville, for defendant-appellant.
   TITUS, Judge.

As a prior offender, defendant was court-tried and adjudged guilty of the class A felony of first degree assault by attempting to kill or cause serious physical injury to Charles Versey by shooting him with a deadly weapon. § 565.050-1.(2) and 2. Defendant was sentenced to imprisonment for a term of 15 years to be served consecutively to another already imposed sentence. Defendant appealed.

In substance, the evidence favorable to the state was that victim Yersey went into a Caruthersville tavern and poolroom near 11 p.m., July 15, 1983. After standing at the bar a few minutes, Versey noticed defendant staring at him from a table in the saloon section of the establishment. Ver-sey moved to another part of the bar, ordered a drink and soon saw that defendant had left the tavern. Another witness observed defendant, once he left the building, exchange a red T-shirt for a white one and place a ski mask over his head and face before re-entering the bar. Once again inside the tavern, the masked man produced a pistol and shot Versey in the jaw and left side of the body before departing the premises. The operator of the establishment was in the poolroom section of the building when he heard the gunshots. He went outdoors through the poolroom door where he saw defendant go towards the corner of the building, stop and remove the head covering before looking back. Four days later on July 19, 1983, police officers went to defendant’s place of employment to arrest him for shooting Versey. Upon seeing the officers approaching, defendant took flight only to be apprehended at gunpoint some 50 feet from where he commenced his run. More evidence will be later recast when necessary to comprehend the two points relied on presented in this appeal.

Defendant’s first point relied on has this factual background. On September 14, 1983, defendant filed a “Motion for Ballistics Test” whereby he prayed the state be ordered to deliver to the SEMo Crime Laboratory for ballistics testing the bullet slugs removed from Versey’s body and the pistol taken from defendant when he was arrested. The motion also asked that defendant be furnished a report concerning the result of such testings. The motion was granted September 20, 1983, and the state delivered the necessary items to the laboratory. However, neither the state nor the defendant had received such a report when the cause was tried December 14, 1983. Defendant candidly admits in his brief that the state did not deliberately withhold the results of the testing, but does accuse it of not being diligent enough to have the results available by trial time.

Before any evidence was received on the morning of trial, defense counsel addressed the court: “Judge, I think we need some ruling from you on what we’re going to do about this ballistics test.... I feel that the defendant would be justified ... in asking for a continuance. I think that if we could come to an arrangement with the State whereby no mention of the gun or the attendant circumstances in which the gun was obtained by the State, be — not be permitted to be entered into evidence, I believe we could proceed here this morning.” Following extended colloquy between court and counsel, the court repeatedly ruled the state was to make no reference that defendant was possessed of a gun at the time of his arrest and that such a fact would not be considered by the court in determining defendant’s guilt or innocence. After the prosecutor told the court he intended to show the circumstances of the arrest, sans any mention of defendant being armed, to “Show flight”, defense counsel, without stating any meaningful reasons, again stated he was asking “the Court to continue this case until we get ... something from the crime lab.” Nevertheless, after being told again and again by the trial court the state would not be permitted to offer any evidence “concerning any weapon that the defendant had ... when he was arrested,” defendant’s counsel in a continuing and incomprehensible manner concluded: “Well, in effect, Judge, I think the prosecution and I have entered into a stipulation, so to speak, maybe.... We’re going to forget the gun but I would not enter into anything of that nature if he proves that — fleeing. Because then I have the right to introduce the evidence about the gun if I choose to.” At trial, in accordance with the court’s ruling, supra, no mention was made of the gun found on defendant when he was arrested.

In toto, defendant’s first point relied on reads: “The trial court erred in that it did not grant the defendant a continuance because the failure to do so resulted in the defendant not having available to him the results of a ballistics test, which the court had ordered the State to have conducted, of a pistol found on defendant upon arrest for the instant charge, thereby precluding the defendant from being able to introduce the pistol and ballistics results into evidence to show that defendant’s pistol was not the one used in the offense for which he was on trial and to rebut State’s evidence of flight.”

Initially we observe, sua sponte, anent the point relied on two assumptions wholly unsupported by any evidence. The first unfounded assumption is that the ballistics test, the results of which were never known, did, in fact, reveal that the pistol taken from defendant upon arrest was not the one used in the shooting. Also, even assuming the pistol used in shooting Ver-sey and that found on defendant when arrested were different, the second unfounded presupposition in the point is that such fact, if so, would rebut the state’s evidence of attempted flight at the time of arrest. The question of whether defendant did or did not attempt to flee from the arresting officers, would not be resolved by showing that a gun different from that taken from defendant was used in the shooting.

Rule 24.09 mandates that “An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally.” In the dialogue between court and counsel concerning this matter, supra, no application, oral or otherwise, was initially made for a continuance because the lawyer simply expressed a belief that defendant would be justified in asking for a continuance. However, if the lawyer’s later ambiguous oral expression that he was asking for a continuance until “something [was obtained] from the crime lab” be considered an authentic application for a continuance, that too must fail. Defendant’s failure to file the request in writing together with an affidavit showing good cause as required by Rule 24.09 is sufficient ground for denying the application. State v. Diamond, 647 S.W.2d 806, 808[2] (Mo.App.1982). Even if the application here had been in the proper form, which it was not, whether or not an application for a continuance should be sustained is within the discretion of the trial court and a very strong showing, absent here, is required to cause an appellate court to interfere with the ruling of the court nisi on a request for a continuance. State v. Green, 647 S.W.2d 902, 903-904 (Mo.App.1983); State v. Winston, 627 S.W.2d 915, 918[3] (Mo.App.1982). Defendant’s first point relied on is denied.

Defendant’s second and final point relied on states: “The trial court erred in that it denied defendant’s Motion for Judgment of Acquittal at the Close of All of the Evidence and Motion for New Trial because the evidence is in such conflict in material respects that it does not rise to the level of substantial evidence and is insufficient to prove beyond a reasonable doubt that the defendant attempted to kill or cause serious physical injury to Charles Versey by shooting him.”

Any reader of the point will be quick to see that it has been penned in complete disregard of the mandates of Rule 30.06(d). Nowhere does the point attempt to advise “wherein and why” the evidence in unexplained material respects was in conflict or “wherein and why” the evidence, whatever it was, failed to rise to the level of substantial evidence. Also, the point neglects to say “wherein and why” the evidence was insufficient to prove beyond a reasonable doubt that defendant attempted to kill Yersey or cause him serious physical injury by shooting him. We have no duty to seek through the transcript or the argument section of defendant’s brief to come by an understanding of points written contrary to the commands of the rule. As written, the point preserves nothing for appellate review. However, as this court, contrary to Rule 30.09, did not afford defendant a second chance to do properly that which he should have done in the first instance, we will briefly review what we assume the point to mean by referring to the transcript and argument. State v. Gamble, 649 S.W.2d 573, 576[4, 5] (Mo.App.1983).

One segment of the argument to this point is the conclusion that defendant’s testimony and that of the woman with whom he was living showed that defendant was at the woman’s house at the time of the shooting and it was, therefore, impossible for defendant to have committed the charged crime. In substance, defendant asserts the evidence adduced by the state and summarized in the second paragraph of this opinion, supra, is so contradictory and composed, in part, of the testimony of an ex-convict, that it does not constitute substantial evidence to prove defendant guilty beyond a reasonable doubt. Defendant, in effect, is accusing the trial court of error in selecting the state’s testimony over that proffered by the defense. Such overlooks that the credibility of witnesses is for trial court determination. State v. Han-kins, 599 S.W.2d 950, 953[1] (Mo.App.1980). In deciding if the charge against defendant was proved, we are required to view the evidence and the proper inferences flowing therefrom in the light favorable to the state. State v. Buffington, 588 S.W.2d 512, 514[1] (Mo.App.1979). The trier of the facts, be it court or jury, and here it was the court, had leave to believe or disbelieve all, part or none of the testimony of any witness or to accept or reject in whole or in part such testimony just as a court or jury may find the same to be true or false when considered in relation to the other testimony and circumstances of the case. State v. Lieberknecht, 608 S.W.2d 93, 98[3] (Mo. App.1980). Also the court may reject testimony albeit no contrary evidence is shown.

Johnson v. State, 615 S.W.2d 502, 505[2] (Mo.App.1981). Predicated upon these principles we cannot agree with defendant’s assertions which are, in effect, that we should totally ignore the state’s evidence and accept in toto that proffered by the defense.

Also under the second point relied on, defendant contends the state’s testimony was so filled with inconsistencies and contradictions as to be self-destructive and, hence, not supportive of a finding of guilty. What defendant really relies on from reading his argument, is that there were inconsistencies and contradictions between original out-of-court accountings of certain witnesses to the investigating authorities and what said witnesses testified to at trial. As Somerville, P.J., astutely distinguished in State v. Bums, 671 S.W.2d 306, 311-312[8, 9] (Mo.App.1984), there is a material difference between that of which defendant here complains and the infrequently encountered rule of “destructive testimony” or “destructive contradictions.” As made clear in the reported opinion, the rule anent “destructive testimony” or “destructive contradictions” applies only to the respective elements of a witness’s testimony at trial — not to contradictions between trial testimony and pretrial statements made during preliminary out-of-court investigations. Since defendant’s complaints regarding the alleged contradictions and inconsistencies are totally outside the perimeter of the rule, such complaints are denied.

Judgment affirmed.

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

      . Statutory and rule references herein are to V.A.M.S. and V.A.M.R.


source: Caselaw Access Project

author: NUGENT, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Eulah S. DUNCAN, Relator, v. The Honorable William F. MAUER, Respondent.
    No. WD 35812.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Judith P. Rea (argued), Allen S. Russell, Kansas City, for respondent.
    William A. Lewis, Lee’s Summit, for respondent.
    Before MANFORD, P.J., and KENNEDY and NUGENT, JJ.
   PROCEEDING IN MANDAMUS

NUGENT, Judge.

Relator, Eulah S. Duncan, seeks a writ of mandamus commanding the respondent circuit judge to vacate his order setting aside a default decree of dissolution of her marriage to Russell S. Duncan which she, as petitioner, had obtained.

The underlying facts are not in dispute. Relator filed a petition for dissolution of marriage on November 10, 1983. Attached was an entry of appearance and waiver of issuance of summons signed by Mr. Duncan. At that time both parties were being represented and advised by the same attorney. On November 17, 1983, the attorney mailed a notice of hearing to Mr. Duncan. On December 12, 1983, the circuit court heard relator’s case and in default of Mr. Duncan’s answer and appearance and entered a decree of dissolution on December 14, 1983. On January 11, 1984, Mr. Duncan’s newly employed independent legal counsel filed a motion to set aside the “interlocutory decree” of dissolution of marriage. On January 27, 1984, the respondent, Judge Mauer, sustained Mr. Duncan’s motion. On January 30, Mrs. Duncan filed her motion to reconsider which was overruled on March 6. On March 12, Judge Mauer entered an order of clarification. Mrs. Duncan filed her petition for writ of mandamus with notice on April 5, and we issued our alternative writ of mandamus that day.

Mrs. Duncan, the relator, contends in support of her petition for a writ of mandamus that the December 14 decree of dissolution became final on January 13 and that the court had no jurisdiction on January 27 to set that decree aside. She also asserts that Rule 74.32 cannot be applied in this case to preserve the trial court’s jurisdiction to set aside the decree beyond the thirty days after the entry of the decree because no nullifying irregularity appears on the face of the record. Finally, she denies that the December 14 decree was interlocutory, insisting that it was final.

First, however, we must answer respondent's question as to our jurisdiction. He argues that relator, Mrs. Duncan, failed to give the five day notice required by Rule 84.24, Missouri Rules of Civil Procedure, and, therefore, we acquired no jurisdiction to issue our preliminary or alternative writ.

Rule 84.24 provides that: “[bjefore such writ shall issue, the petitioner, or his attorney, shall give not less than five days’ notice thereof to the adverse party or his attorney.” The rule also allows the court to dispense with the notice. It provides that “[wjhenever the required notice would, in the judgment of the court, defeat the purpose of the writ, it may be dispensed with.”

Considering the probable merits of the petition, we accepted jurisdiction and issued our alternative writ without waiting the full five days. No fault can be laid at the feet of the relator. In any event, absent a showing of prejudice the point is moot since the respondent has had ample opportunity to be fully heard.

Turning to relator’s first point: Did the trial court have jurisdiction on January 27 to set aside the December 14 decree? It did not.

Rule 75.01 provides in pertinent part as follows:

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party

Rule 78.01 provides in its relevant parts that a court may grant a new trial of any issue upon a showing of good cause and that “[o]n a motion for new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.”

Rule 73.01(a)(3), however, requires one seeking after-trial relief to file a motion “[n]ot later than 15 days after the entry of judgment” in a bench-tried case.

Here, Mr. Duncan filed his motion to set aside the December 14 decree on January 11, twenty-eight days after its entry. A motion to set aside a decree or a motion for a new trial filed later than fifteen days after the entry of the decree is no more than a mere suggestion to the trial court that it exercise its discretion to set aside the decree within the thirty days the court normally retains jurisdiction over its judgments. Chatman v. Civic Center Corporation, 682 S.W.2d 31, 32 (Mo.Ct.App. E.D.1984); Caldwell Paint Manufacturing Co. v. LeBeau, 591 S.W.2d 1, 5 (Mo.App. 1979); State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 202 (Mo.App.1976); Rule 75.01. See also State ex rel. Stoffer v. Moore, 628 S.W.2d 637, 643 (Mo.1982) (en banc). “Only a timely after-trial motion extends the trial court’s jurisdiction beyond the thirty day limit. Rule 81.05.” Halmich v. McCullough, 534 S.W.2d 842, 843 (Mo.App.1976).

Thus, Mr. Duncan’s January 11 motion was in time only to invoke the trial court’s discretion to set aside the decree on or before January 13, the thirtieth day. The trial court did not act before the thirty days expired, therefore, it lost jurisdiction to act and had no jurisdiction over the decree on January 27, the day on which it finally purported to set aside the decree.

Mr. Duncan contends, however, that the December 14 decree was not a final judgment but was interlocutory and that a motion to set aside such a default judgment is governed by Rule 74.045 et seq., and thus the jurisdiction of the trial court did not expire thirty days after entry of judgment. We cannot agree. In the first place, the decree was final, not interlocutory. Rule 74.045 provides that where a defendant fails to file his answer or other timely pleading, “an interlocutory judgment shall be given against him by default.” Rule 74.05 provides, however, that such judgment may be set aside for good cause “at any time before the damages are assessed or final judgment rendered....” The trial court on December 14, 1983, was competent to hear all the evidence necessary to the entry of a final judgment. It did so, and nothing remained to be proved. The relator neither asked for nor was she granted an interlocutory order. See Young v. Smith, 648 S.W.2d 916, 918 (Mo. App.1983).

Nevertheless, Mr. Duncan argues that this court’s decision in Diehl v. Diehl, 630 S.W.2d 264 (Mo.App.1982), supports his position. Judge Mauer relied on Diehl. In his order of clarification he wrote, “The facts in the Diehl decision closely parallel those of this decision. While the court was concerned about the irregularity issue, the court has decided to follow the dictates of the most recent appellate decision in this matter.”

The Diehl case appears to deal with a fact situation in which allegations of fraud were used in support of a motion by a defaulting respondent to set aside a default decree of dissolution. The Diehl decision, written by this writer, incorrectly holds at 625 that a motion to set aside a default judgment “is covered by Rule 74.045 et seq., which allows for the setting aside of the default judgment within three years after the final judgment is rendered. Rule 74.32. Thus, the trial court’s jurisdiction did not expire after thirty days following the entry of judgment.” That decision should not be followed.

Rule 74.32 provides 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.” Respondent’s only argument in favor of applying Rule 74.32 in this case is that “it might be argued that an egregious award is in excess of the prayer of the petition ... so as to constitute an excess of jurisdiction or is an ‘irregularity subject to review under Rule 74.32’ ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28 (Mo. banc, 1983).” He contends that the applicable rule governing motions to set aside is not Rule 78.01 but, citing Diehl v. Diehl, supra, is Rule 74.045, et seq.

Rule 78.01 provides in its pertinent parts as follows:

The court may grant a new trial of any issue upon good cause shown.... On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.

Rule 78.01 does not itself forgive the late filing of a motion to set aside. By the provisions of Rule 73.01(a)(3) Mr. Duncan was required to file his after-trial motion “[n]ot later than 15 days after the entry of judgment” in this bench-tried case. Having failed to meet that deadline, he was dependent upon the court’s discretion to take action within the thirty days it retained control over the December 14 judgment. The court did not set aside the judgment within that thirty days ending on January 13. Thus, it lost its jurisdiction to set the decree aside, absent some irregularity sufficient to bring Rule 74.32 into play.

Mr. Duncan attempts to find an “irregularity.” He claims that the trial court made an egregious award in excess of the prayer of the petition for dissolution of marriage so as to constitute an excess of jurisdiction or an irregularity under Rule 74.32. He relies on ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28 (Mo. 1983) (en banc). In that case, the Supreme Court held at 30-32 that, where the petition showed on its face that an appeal of assessed valuations was pending before the tax commission, its en banc decisions in West glen Village Associates v. Leachman, 654 S.W.2d 897 (Mo.1983), and Xerox Corporation v. Travers, 529 S.W.2d 418 (Mo.1975), required that the suit be stayed so that any judgment in accordance with the prayer of the petition would be premature and an irregularity on the face of the record within the meaning of Rule 74.32.

First, Relator in her petition for dissolution of marriage prayed the court to make an “equitable distribution of the marital property and the marital debts.” “Equitable” does not mean equal and, therefore, an award that is other than precisely fifty-fifty is not necessarily an egregious award in excess of the prayer of the petition. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981). The division of marital property in this case does not make a showing of irregularity on the face of the record as required by Rule 74.32. Second, Mr. Duncan’s reliance on ABC Fireproof Warehouse Co. v. Clemans, supra, 658 S.W.2d 28, is misplaced in that a full reading establishes that an “irregularity” sufficient to warrant the setting aside of a default judgment must be such as to demonstrate a want of adherence to some prescribed rule or mode of procedure. Id. at 32. Moreover, to be considered an “irregularity” within the meaning of Rule 74.32, the matter complained of “must be such as would have prevented, if known, the rendition and entry of the judgment challenged [as] ... distinguished from ordinary judicial errors in a judgment reached in accord with established rules of procedure.” O’Brien v. Johnson, 636 S.W.2d 398 (Mo. App.1982), quoting at 399 from Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103, 106 (1937). No such failure appears in this case, and Rule 74.32 does not permit the introduction of extraneous evidence to invalidate an otherwise valid judgment. Dewey v. Dewey, 544 S.W.2d 857, 859 (Mo.App.1976).

Finally, Mr. Duncan valiantly tries to turn the argument his way by finding in Rule 75.01 a due process requirement in the latest amendment of the rule. He points out that by the amendment, effective January 1, 1981, the Supreme Court added the clause “after giving the parties an opportunity to be heard and for good cause” to Rule 75.01. The amended sentence in the rule now reads: “The trial court retains control over judgments during the thirty-day period after entry of judgment giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.”

If a denial of due process occurred by reason of the court’s failure to afford relator a hearing on Mr. Duncan’s twenty-eighth-day motion, relator has not complained of it at any time. Moreover, Mr. Duncan’s counsel apparently made no attempt on the twenty-eighth, twenty-ninth or thirtieth day to get the court to hear the motion at once as it could have done sometime on Wednesday, Thursday or Friday— January 11, 12 or 13. (The motion to set aside was filed at 4:19 p.m. on January 11.)

Mr. Duncan argues that Caldwell Paint Manufacturing Co. v. LeBeau, supra, at 591 S.W.2d 6, held that the court’s power and jurisdiction to vacate its judgment under Rule 75.01 “is subject to the qualification that the party to be adversely affected be given reasonable notice and an opportunity to be heard.... ” The court there held that the trial court which set aside a default judgment lacked jurisdiction to enter an order setting aside the judgment because no notice of the motion to set aside was given to the party in whose favor the judgment had been entered.

Mr. Duncan interprets the Caldwell decision as an enunciation of a due process of law requirement that the court not set aside judgments within the thirty days after judgment absent notice and chance to be heard. Perhaps Caldwell is subject to that interpretation, but we need not decide that question because in this case the court did not set aside the judgment within thirty days of its entry. No notice is required unless the court intends to set aside a judgment within the thirty days. Cf. State ex rel. Stoffer v. Moore, supra, 628 S.W.2d at 643.

In any event, if the respondent erred in not setting the motion for hearing in the last two or three days of his jurisdiction over the judgment, by his own inaction counsel for Mr. Duncan invited that error and may not now complain of it. Brassfield v. Sears, 421 S.W.2d 321, 327 (Mo. 1967).

Thus, respondent Judge Mauer was without jurisdiction on January 27, 1984, to act upon the motion to set aside. Accordingly, we now issue our peremptory writ of mandamus and direct the respondent to set aside his orders of January 27, March 6, and April 5, 1984, and reinstate the decree of dissolution entered on December 14, 1983.

MANFORD and KENNEDY, JJ., concurs.

      . Prior to its amendment in 1977, § 452.320, R.S.Mo.1978, made provision for the entry of an interlocutory decree of dissolution and notice to the absent party giving that party ten days within which to object to a finding that the marriage was irretrievably broken. That provision has been removed from the statute. Brown v. Brown, 561 S.W.2d 374, 376-78 (Mo.App. 1977).


author: KELLY, Presiding Judge.

text:
    FOOTWEAR UNLIMITED, INC., Plaintiff-Respondent, v. Herbert M. KATZENBERG, Defendant-Appellant.
    No. 47258.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.

      Gerard T. Carmondy, St. Louis, for defendant-appellant.
    David G. Dempsey, Clayton, for plaintiff-respondent.
   KELLY, Presiding Judge.

Herbert M. Katzenberg, appeals from an order of the Circuit Court of St. Louis County, Missouri, granting Footwear Unlimited, Inc., a new trial following a jury verdict of $10,000 on Katzenberg’s counterclaim because of instructional error.

On appeal the appellant, defendant in the trial court, contends that the trial court erred in granting a new trial on his counterclaim on the grounds (1) that the agreement was unenforceable by reason of the Statute of Frauds, § 432.050 V.A.M.S., because respondent waived this defense, a written memorandum of the agreement existed, and application of the Statute of Frauds would have created a tenancy longer than the period of rental claimed and awarded, and; (2) Instruction No. 12 directed a verdict based upon a theory of fraud which was not supported by the evidence because respondent pleaded and proved a case of promissory estoppel which clearly supported the giving of Instruction No. 12. We affirm.

The facts supported by the evidence at trial are that appellant Katzenberg owned warehouses in Fenton, Missouri. In April or early May of 1979, Eugene Moreland, Footwear’s Director of Operations, noticed some vacant space in one of Katzenberg’s Fenton warehouses. The building More-land first noticed had 40,000 square feet and an adjacent warehouse, (also owned by Katzenberg), had 145,600 square feet divided into six separate units. When the President of Footwear, Cohen, heard about the Katzenberg warehouses in Fenton, he initiated negotiations to lease the space.

On May 1, 1979, Footwear’s real estate agent, Harris Frank, telephoned Katzen-berg and advised him of Footwear’s interest in leasing between 20,000 and 40,000 square feet of space. Katzenberg then wrote Frank and advised him of the availability of two contiguous units of 20,400 square feet each. Next Katzenberg received a telephone call from Cohen regarding the possibilities of a leasing arrangement and they agreed to meet on May 14, 1979, at the Katzenberg properties.

As scheduled, Katzenberg met with Cohen, as well as Frank, Eugene Moreland, Footwear’s Director of Operations, and Charles Seib, Footwear’s Controller, at the property on May 14, 1979. The group examined the space for about an hour and Katzenberg answered their questions. Then, they went to lunch together and negotiations regarding the lease took place in earnest. Footwear agreed to make improvements on the building and the parties agreed on a price per square foot. At first, Katzenberg asked for $1.30 per square foot but then reduced his rental to $1.20 in consideration for the improvements Footwear intended to make during its tenancy. The result was a monthly rental of $4,080. Cohen and Katzenberg accepted this proposal and agreed to a ten year lease. Cohen and Katzenberg shook hands and Kat-zenberg advised Cohen that a lease would be sent incorporating the terms of their agreement.

After the luncheon meeting, the group adjourned to Footwear’s premises and Cohen tendered to Katzenberg a check for $8,160, half for the first month’s rent and the other half for a security deposit.

Significantly, Katzenberg mentioned to Cohen during the luncheon meeting that another prospective tenant, Gene Deidrick wanted to lease the same space that Footwear wanted to lease. Deidrick desired an immediate lease at a higher rate of rental, $6,120 per month, although Deidrick only wanted to rent for a period of six months. After Footwear paid the first month’s rent and security deposit, Katzenberg told Cohen he would inform Deidrick that the warehouse was no longer available. Cohen approved of this action and Katzenberg notified Deidrick of the dealings immediately after the meeting. Deidrick testified that if Katzenberg had not leased the space to Footwear, he would have entered into a six month lease for the same space.

Footwear received the keys to the warehouse on the 14th of May. It changed the electricity for the warehouse, specifically 2047-2061 Hitzert Court, to its name on May 31st. Footwear cleaned out rubbish and debris and obtained bids on lighting, heating and other construction work for the improvements it intended to make.

On May 18,1979, Katzenberg sent Cohen a letter enclosing a lease, which he believed incorporated the terms of the agreement reached by the parties on May 14, 1979. This letter said:

... “of a lease [that] I believe incorporates all the terms that we agreed upon.”
... “on the assumption that we are in full accord, you have my permission to take immediate possession.”

Cohen received the letter and reviewed the enclosed lease, in particular the term of ten years and the rental charges. Cohen signed the lease and sent it to his attorney for approval. The attorney made some changes on the lease. Although the parties dispute the materiality of these changes, Katzenberg testified that the changes were acceptable to him. Footwear introduced the lease signed by Cohen into evidence. Katzenberg never signed the lease because Cohen never delivered the lease to him after signing it. Footwear entered the premises before signing the lease. Footwear admits in its brief that their possession after the 14th of May was a non-controverted fact.

On May 29, 1979 Cohen called Katzen-berg and discussed specific improvements that Footwear would make in the warehouse. Cohen told Katzenberg he signed the lease and mailed it to Katzenberg.

On May 31, 1979, Cohen called Katzen-berg and complained about the costs of the improvements, specifically regarding the heat. On the same day, Frank called and told Katzenberg that the costs of improvements had created a “crisis.” The next day, June 1st, Frank called Katzenberg again and told him the deal was “dead.” Frank told him the decision perhaps came from “higher up” and that Footwear “was thinking of its entire operation,” which could require a total of 60,000 to 80,000 square feet. Frank said that Katzenberg’s warehouse space was not suitable for Footwear’s entire operation, from both a physical and an economic point of view. Coinci-dently, two weeks later Footwear purchased other property on which it eventually constructed its current facilities.

After receiving the May 31st telephone call from Frank, Katzenberg contacted Deidrick and asked if he would still be interested in renting the property. Deid-rick was no longer interested. Eventually, Katzenberg leased the warehouse space to other tenants. In November, 1979, he leased 2061 Hitzert Court and in December, 1979, he leased 2047 Hitzert Court, thereby losing approximately $22,000 in rental he expected to receive from Footwear.

Subsequently, Footwear demanded that Katzenberg return the $8,160, which Footwear tendered as the first month’s rent and security deposit. Katzenberg refused to return the money. Footwear filed a two-count petition in St. Louis County Circuit Court, seeking return of the $8,160, and punitive damages in the amount of $50,000. Katzenberg denied liability and counterclaimed in two counts, Count One for $22,-520 in lost rentals caused by Footwear’s breach of contract, and alternatively in Count Two for $33,660, which Deidrick would have paid in rentals, based on a promissory estoppel theory of recovery.

The trial commenced on January 11, 1983. After four days of trial, the jury returned a verdict in favor of Katzenberg and awarded him $10,000 in damages on his counterclaim.

On April 28, 1983, the trial court sustained Footwear’s Motion for New Trial “because of error in the giving of Instruction No.’s 10 and 12.” Both of these instructions were verdict directors on Kat-zenberg’s counterclaim. Katzenberg appeals the order for a new trial.

In its order granting Katzenberg’s motion for new trial on the grounds it erred in submitting Instruction No. 10, the trial court specified that the instruction was erroneous for the reason “it sought recovery under an agreement for lease of property which is unenforceable as being in violation of the Statute of Frauds, § 432.050, RSMo 1978.” Appellant argues that Footwear waived the defense because not only did Footwear fail to object to the introduction of evidence of the oral agreement but, in fact, presented evidence of the oral agreement and even introduced the written lease into evidence as part of its case in chief.

Instruction No. 10, a modification of MAI 26.06, Breach of Bi-Lateral Contract, read:

“Your verdict must be for defendant on his claim if you believe:
First, plaintiff and defendant entered into an agreement whereby plaintiff agreed to rent warehouse space from defendant at 2047 and 2061 Hitzert Court for a period of ten years at $4,080 per month for the first year, and defendant agreed to provide the warehouse space to plaintiff, and
Second, defendant performed his agreement, and
Third, plaintiff took possession of the premises and paid the first month’s rent, and
Fourth, plaintiff failed to perform its agreement, and
Fifth, unless you believe defendant is not entitled to recover on his claim by reason of Instruction No. 11.”

Section 432.050, RSMo 1978 provides that all leases of any messuages, lands, tenements or hereditaments, made or created by parol, and not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the same force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force. Such tenancy may be terminated by either party thereto, or his agent, giving to the other party, or his agent, one month’s notice, in writing, of his intention to terminate when the building is situated in a city, town or village and not used for agricultural purposes.

In support of its position that respondent waived the defense of the statute of frauds appellant relies on Justus v. Webb, 634 S.W.2d 567 (Mo.App.1982) and Sheinbein v. First Boston Corporation, 670 S.W.2d 872 (Mo.App.1984). Both of these cases held that pleading the statute of frauds alone is not sufficient to maintain it as a valid defense and that the failure of the party pleading the defense to object to offered evidence of the oral agreement constituted a waiver of the protection of the statute. Justus, 634 S.W.2d at p. 569 and Sheinbein, 670 S.W.2d at p. 879[21, 22] (Mo.App.1984). The record shows that respondent presented evidence of all the essential elements of the oral agreement and even introduced into evidence the written lease signed by Mr. Katzenberg in its own case.

Nevertheless, respondent, relying on Longmier v. Kaufman, 663 S.W.2d 385 (Mo.App.1983) contends that no written lease was entered into by the parties, and therefore § 432.050, which makes any unwritten tenancy created between the parties one of tenancy at will, controls. Furthermore, respondent claims that even though it offered evidence of its own regarding the terms of the lease and did not object to Katzenlenberg’s oral testimony concerning the terms of the lease, it may nevertheless assert the statute of frauds as a complete bar to enforcement of the lease and may effectively repudiate any obligation under it. Longmier, supra p. 389. See also: Brooks v. Cooksey, 427 S.W.2d 498, 504[1] (Mo.1968); Jones v. Linder, 247 S.W.2d 817, 820[4] (Mo.1952); Jones v. Anderson, 618 S.W.2d 252, 258 (Mo.App.1981).

We agree with respondent and hold that it did not waive the Statute of Frauds, § 432.050.

We believe the evidence clearly establishes that no written lease was “signed by the parties.” The uncontradicted evidence was that Mr. Cohen, President of respondent, affixed his signature to the form lease tendered him by appellant conditionally, subject to review by respondent’s counsel. We are concerned here with a commercial lease which was a “form lease” and we believe the evidence is clear that it did not contain the entire agreement between the parties. Nevertheless, in view of the undisputed evidence that no written lease was signed by the parties, the agreement, if any, could amount, by operation of law, to no more than a tenancy at will; § 432.050, Longmier v. Kaufman, supra, p. 389[1].

Instruction No. 10 submitted to the jury the question whether “plaintiff and defendant entered into an agreement whereby plaintiff agreed to rent warehouse space from defendant .... for a period of ten years, ...” This was error because not supported by the evidence, and requires that we affirm the trial court’s order granting respondent a new trial on these grounds.

With respect to Instruction No. 12-a not in MAI instruction, patterned after MAI 23.05 — Fraudulent Misrepresentations, we also hold that the trial court did not err in granting a new trial on the grounds stated.

Instruction No. 12 reads:

“Your verdict must be for defendant on his claim if you believe:
First, plaintiff represented to defendant that it would rent warehouse space from defendant at 2047 and 2061 Hitzert Court for a period of ten years at $4,080 per month for the first year, and defendant agreed to provide the warehouse space to to plaintiff, and Second, in reasonable reliance on that representation defendant refused to rent the premises to another potential tenant, and
Third, plaintiffs representation to defendant was false, and Fourth, plaintiffs representation was made with the intention of inducing defendant to make the premises available to plaintiff, and
Fifth, defendant was unaware that plaintiffs representation was false, and Sixth, defendant was damaged thereby.”

Appellant concedes that its counterclaim stated a cause of action in promissory es-toppel. This was his position in the trial court and is still his position on appeal. In granting respondent a new trial, the trial court found that Instruction No. 12 was erroneous because it directed a verdict based upon a theory of fraud which was not supported by the evidence. We agree with the trial court.

There is no MAI Instruction on promissory estoppel. In these circumstances the instruction shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts. Rule 70.02(e). The ultimate test of a not-in-MAI instruction is whether it follows the substantial law and can be readily understood. Kirkwood Medical Sup. Co. v. Ann Patterson Ent. Inc., 511 S.W.2d 433, 435, [3-5] (Mo.App.1974). The proper function of a not-in-MAI verdict director is to submit the factual questions which the jury must resolve. Parker v. Stem Bros. & Co., 499 S.W.2d 397, 406, [2] (Mo.1973). The verdict director is limited by the petition and it is error to authorize recovery on an unplead-ed ground. Huter v. Birk, 439 S.W.2d 741, 745, [8] (Mo.1969).

The elements of promissory es-toppel are a (1) promise which the promisor should reasonably expect to induce action or forebearance on the part of the promisee or a third person, and (2) which does induce such action or forebearance, and is (3) held binding because injustice can be avoided only by enforcement of the promise. Restatement of Contracts 2d, § 90, subsection 1; Feinberg v. Pfeiffer Company, 322 S.W.2d 163, 167 (Mo.App.1959). Fraud is not an element of promissory estoppel, nor was it pleaded by appellant as an element of its claim. The evidence did not support a submission of fraud.

As distinguished from fraud, the doctrine of promissory estoppel is not concerned with good faith or bad faith of the promisor in making the promise allegedly relied on; that is irrelevant to the issue of whether an enforceable promise was in fact made. Burst v. Adolph Coors Co., 503 F.Supp. 19, 22[2] (D.C.E.D.Mo.E.D.1980).

For these reasons we conclude the trial court did not err in granting respondent’s Motion for New Trial on these grounds.

Respondent contends that the new trial should include a retrial of both its claim and appellant’s counterclaim because the order sustaining its Motion for New Trial states: “Plaintiffs [sic] Motion for New Trial is granted on all issues ...” Appellant disputes this contention and takes the position that the new trial is limited to its counterclaim. We agree with appellant because the grounds for granting a new trial were on issues raised in respondent’s Alternative Motion for New Trial and directed at appellant’s instructions submitting its Two Count Counterclaim, not on whether there was error in the jury’s verdict for appellant on respondent’s claim.

While the order of the trial court may appear to be ambiguous, it is clear that a trial court may not grant relief which was not requested in respondent’s alternative motion for new trial. Respondent made no request for a new trial by reason of any errors which affected the jury verdict on its claim. All errors alleged were directed at the verdict on the counterclaim.

Judgment affirmed.

STEWART and SNYDER JJ„ concur.

      . From the legal file it is impossible to ascertain whether this verdict was rendered on Count I or Count II of Katzenberg's counterclaim. "Ver-diet Form B” did not specify whether the verdict was based upon Count I or Count II of the Katzenberg counterclaim.

      . All statutory references are to RSMo 1978.


author: CRIST, Judge.

text:
    The STATE of Missouri, ex rel. George W. HANNAFORD, Vandalia, Missouri Police Officer, Respondent, v. Marvin D. ALLEN and One 1982 Ford Van, Appellant.
    No. 47851.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 18, 1984.
    Donald K. Gerard, Clayton, for appellant.
    Thomas I. Osborne, Pros. Atty., Mexico, for respondent.
   CRIST, Judge.

Appeal from an order of forfeiture of a motor vehicle owned by appellant Allen in an action brought under the Narcotic Drug Act, Chapter 195 RSMo 1978. After a hearing, the circuit court found the vehicle to be a common nuisance and ordered forfeiture. We reverse.

The forfeiture action, civil in nature, was instituted by Vandalia, Missouri Police Officer George H. Hannaford pursuant to § 195.145 RSMo 1978. The evidence adduced at the hearing tended to show appellant drove his 1982 Ford Van into a cemetery, ran over several tombstones, and abandoned it after the accident. The van was discovered, impounded by Officer Han-naford, and searched the next day. The search revealed a plastic vial containing 14.8 grams of marijuana, mostly seeds with a small amount of leafy material. Officer Hannaford did not, and legally could not, effect an arrest for a violation of any provision of Chapter 195. He spoke with the prosecuting attorney, who did not institute criminal charges, but elected to file this civil action seeking forfeiture.

Without a criminal action or an arrest, a forfeiture action may not be brought. Section 195.145 provides in part:

1. Any vehicle, vessel or aircraft which has been used ... in violation of any provision of Section 195.025, shall be forfeited to the state and any peace officer of the state, upon making or attempting to make an arrest for violation of this law, shall seize any such vehicle, vessel or aircraft.... (emphasis added)

Once the predicate violation of § 195.025 occurs, the officer arresting or attempting arrest for that violation is then empowered to seize the vehicle, and then may petition the count for forfeiture. Before the petition will be sustained and the forfeiture enforced, because of the basic judicial principle that the law abhors a forfeiture, both the letter and the spirit of the law authorizing the forfeiture must be complied with strictly. State v. Jones, 637 S.W.2d 337, 338 (Mo.App.1982).

In the instant case, the forfeiture was not within the letter of the law. Officer Hannaford did not “mak[e] or attempt[ ] to make an arrest for a violation of this law.” § 195.145.1 RSMo 1978.

State ex rel Whitener v. Kixmeller, 664 S.W.2d 220, 222 (Mo.App.1983) in disposi-tive of the case at bar. It was ruled therein “[t]he letter of the law quoted above [§ 195.145.1 RSMo 1978] limits the seizure authority by investing the authority only in the peace officer who effects an arrest for a violation of Chapter 195.”

Judgment reversed.

REINHARD, C.J., and CHANNING D. BLAEUER, Special Judge, concur.


author: WILLIAM F. MAUER, Special Judge.

text:
    Kenneth J. GREENING, Mary Sue Greening, and Ford Lane Executive Center, Inc., Appellants, v. Marvin KLAMEN, and Klamen, Summers and Compton, Respondents.
    No. 48179.
    Missouri Court of Appeals, Eastern District, Division Seven.
    Dec. 18, 1984.

      Mark Belz, Clayton, for appellants.
    Lawrence B. Grebel, Kevin C. Roberts, St. Louis, for respondents.
   WILLIAM F. MAUER, Special Judge.

This case is on appeal for the second time. The basic facts in this case can be found in this court’s first opinion, Greening v. Klamen, 652 S.W.2d 730 (Mo.App.1983). The subsequent procedural facts leading to this appeal, which we have borrowed from the parties’ briefs, are as follows:

Appellants previously filed an amended petition with eight counts based in part on breach of contract, libel and negligence. On December 4, 1980, the trial court dismissed all eight counts of this amended petition. The plaintiffs appealed, and on May 10, 1983, this court affirmed the trial court’s dismissal as to all counts except Counts I and III which alleged causes of action for breach of contract.

On remand, the respondents filed motions for more definite statement as to the two remaining counts of the petition. On August 5, 1983, the trial court sustained respondent Marvin Klamen’s motion for more definite statement and granted appellants ten days to file their amended petition. Appellants filed their second amended petition which contained six counts. This petition included the two original counts for breach of contract and also sought to replead the four counts that had previously been dismissed.

Respondents moved to dismiss Counts III, IV, V and VI contending that these counts had previously been dismissed by the trial court and affirmed on appeal by this court. The trial court granted this motion to dismiss, holding that this court’s opinion in the first case as cited above was res judicata. Counts I and II of appellant’s second amended petition, which are the original breach of contract claims, still remain and are not involved in this appeal.

This appeal does not involve any of the categories reserved for exclusive appellate jurisdiction of the Supreme Court of Missouri and jurisdiction, therefore, lies with the Missouri Court of Appeals, Eastern District. Mo. Const. Art. 5, § 3.

The issue in this case is whether or not the trial court’s order dismissing four counts of a six count petition and designating such order as “final and ap-pealable”, is indeed ripe for appeal. This court’s answer is no and we dismiss the appeal.

Section 512.020, RSMo. 1978 provides that an aggrieved party may take an appeal from any final judgment in the case. The requirement of finality is jurisdictional and may not be waived. The appellate court has a duty to determine sua sponte whether the trial court has rendered a final, appealable judgment. The appeal must be dismissed whenever the finality requirement is lacking. Haley v. City of Linn Creek, 583 S.W.2d 590, 591 (Mo.App.1979).

A final appealable judgment is one which disposes of all parties and issues in the case; the only exceptions are where the court has ordered a separate trial of issues or has designated the judgment or order entered final for purposes of appeal. Reeves v. Smith, 621 S.W.2d 534 (Mo.App. 1981). A judgment entered in one count of a petition is not final if there has been no disposition of the remaining counts. Anderson v. Metcalf, 300 S.W.2d 377, 378 (Mo.1957).

In State ex rel. State Highway Commission v. Armacost Motors, Inc., 502 S.W.2d 330, 331 (Mo.1973), an appeal was taken from an order that included the following sentence:

This order is designated as a final order for the purpose of appeal.”

The Missouri Supreme Court held that the appeals court must determine finality and that the trial court’s designation of an order as appealable did not make it so. Id. at 332.

In order to be appealable, an order or judgment must be final. § 512.020, RSMo. 1978. While Missouri case authority defines finality as disposition of all parties and issues in the case, there are lines of seemingly contradictory cases. New Age Federal Savings and Loan Association v. Miller, 461 S.W.2d 876 (Mo.1970) and similar cases hold that the trial court’s designation of an order or judgment as final and appealable is an exception to the final judgment rule. Id. at 879. The Armacost Motors cases look beyond the trial court’s designation and grant the appellate courts the power to determine sua sponte if necessary, the issues of finality.

This court is mindful of the fact that Rule 81.06 provides as follows “... However, when a separate trial is had before the Court without a jury of an entirely separate and independent claim unrelated to any other claim stated or joined in the case, then judgment entered shall be deemed final for purposes of appeal within the meaning of Section 512.020, R.S.Mo unless the Court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined.” The trial court has the authority, pursuant to Rule 81.06, to designate a judgment final and appealable when a separate non-jury trial is had on an entirely separate and independent claim unrelated to any other claims stated or joined in the case. The test is one of dependency. So long as the remaining claims are not “dependent” in any respect upon the outcome of or final disposition of the judgment rendered, the judgment is final without need for the trial court to so designate. Luecke v. Missouri Department of Conservation, 674 S.W.2d 691, 692 (Mo.App.1984). In this case, all of the counts arose from the same transaction. The dismissed counts based on negligence are “dependent” on the contract claim and therefore under the Armacost line of cases and the Supreme Court Rule, the remaining counts may not be deemed final for this appeal.

This appeal, accordingly, is hereby dismissed.

KAROHL, P.J., and DONALD E. DALTON, Special Judge, concur.

      . The contract was for legal services during a bankruptcy proceeding. The negligence charge concerned legal malpractice.


author: PER CURIAM:

text:
    Jane H. CAMPANELLA, Respondent, v. James A. CAMPANELLA, Appellant.
    No. 48299.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1984.
    Anthony J. Coultas, St. Louis, for appellant.
    Edward L. Dowd, St. Louis, for respondent.
   ORDER

PER CURIAM:

Appellant, James A. Campanella, appeals from the order of the trial court which determined the specific amount of maintenance due under a decree of dissolution. Respondent’s motion to dismiss this appeal is overruled. The order of the trial court is affirmed. Rule 84.16(b).


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Troy BROWN, Appellant.
    No. 48478.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1984.

      Debra Buie Arnold, Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant appeals his jury conviction and court-imposed five month sentence as a prior offender for possession of dex-troamphetamine, a Schedule II controlled substance. We reverse.

The state’s evidence consisted of a container of pills, the testimony of two police officers, and the testimony of a criminalist who identified the substance in the pills.

The police officers testified as follows:

Shortly before noon on June 13, 1983, the two officers were on duty together and stopped a vehicle driven by defendant because the windshield was cracked, in violation of a city ordinance. As defendant curbed his vehicle, the officers saw him “leaning over on the passenger side as if to retrieve something or place something on the floor.” The officers became suspicious and ordered defendant to step from the car, which defendant did. One of the officers then asked permission to search the car, and defendant readily agreed. Upon entering the car, the officer observed an open plastic bottle in a tray which sat on the “hump” of the floorboard between the driver’s side and the passenger side. In the bottle were several small green pills. The officer also found a small foil package with burn marks on it lying on the floor of the passenger side of the car. The officer seized the items and gave defendant his rights. When asked about the pills, defendant responded, “Those aren’t mine, I didn’t even know they were there, they might be my sister’s diet pills.” Defendant also told the officers that the car was registered to him. However, a computer check revealed that the car was registered to defendant’s sister. The officers took defendant and the seized items to the police station. The foil package was found to contain incense and no controlled substance. The pills were found to contain a Schedule II controlled substance, dex-troamphetamine.

Defendant did not testify. The first defense witness was his sister, Annette Brown, to whom the car was registered. She testified that in 1979 or 1980, she moved from an apartment where she lived with her step-sister, Dorothy King. In the move, she inadvertently took the step-sister’s diet pills with her. Upon discovering the diet pills at her new home, she put them in her car, intending to return them. At that time, the pills were in the same container that was seized by the officers, but the lid was on. Annette Brown further testified that she loaned her car to defendant on June 13, 1983.

Defendant’s next witness was his stepsister, Dorothy King. She testified that the pills had been prescribed to her at the Malay Clinic for weight loss. She stopped taking them in 1979 because she had changed doctors, and she left them in her medicine cabinet. She further testified that some time after Annette Brown moved out, Annette Brown called and said she had taken the pills, had put them in her car, and would return them. King told Brown there was no need to hurry. The pills were not returned.

On appeal, defendant claims the state failed to make a submissible cáse because the evidence was insufficient to prove that defendant knowingly and intentionally possessed the controlled substance. In reviewing the record, we accept as true all evidence which tends to prove defendant guilty, along with any reasonable inferences which áre supportive of the verdict. State v. Kerfoot, 675 S.W.2d 658 (Mo.App.1984).

To sustain a conviction for possession of a controlled substance, the state must prove that defendant had conscious and intentional possession of the substance, and had knowledge of the presence and nature of the substance. Section 195.020 R.S.Mo.1978; State v. Barber, 635 S.W.2d 342 (Mo.1982). Possession may be proved by circumstantial evidence, and knowledge may be inferred therefrom. However, “to support a conviction or make a submissible case based on circumstantial evidence, the facts and circumstances must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the defendant’s guilt, but also must be inconsistent with every other reasonable hypothesis of innocence.” State v. West, 559 S.W.2d 282, 285 (Mo.App.1977).

The evidence need not prove actual possession. Exclusive control over the place where the substance is found raises an inference of possession; however, if control is not exclusive, the mere fact that defendant was present where the substance is found does not alone make a submissible case. In these circumstances, there must be additional independent factors to buttress an inference of defendant’s knowledge and control. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982); State v. Stewart, 542 S.W.2d 533, 538 (Mo.App.1976).

Here, since defendant did not own the car, he did not have exclusive control over it. It can be inferred that defendant had knowledge of the presence of the pills because they were in close proximity to him, and in open view in broad daylight. However, the state’s case falls short of either direct or circumstantial evidence as to proof of knowledge of the nature of the substance.

We have searched the record for buttressing facts that would support an inference that defendant knew the pills were illegal. We do not believe defendant’s statement, “they might be my sister’s diet pills,” standing alone, is enough. The state’s apparent reliance on the officers’ testimony that they saw defendant “leaning over on the passenger side as if to retrieve something or place something on the floor” is misplaced. Had the pills been found on the floor of the passenger side, it could be argued that this gesture was an effort to conceal, and therefore an inference of knowledge may arise. Here, however, the pills were not on the floor, but on the console in the center of the car. The evidence here is not sufficient to support a conviction. Reversed.

DOWD, CRIST and CRANDALL, JJ., concur.


author: KAROHL, Judge.

text:
    Earl EAKINS and Oma Eakins, Husband and Wife, Plaintiffs-Respondents, v. Leroy SADLER and Viola Sadler, Husband and Wife, Defendants-Appellants.
    No. 48569.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 18, 1984.

      Francis Joseph Siebert, Scott City, for defendants-appellants.
    John P. Heisserer, Richey, Price, Spaeth and Heisserer, Cape Girardeau, for plaintiffs-respondents.
   KAROHL, Judge.

Defendants-appellants landowners appeal the findings and judgment granting plaintiffs-respondents landowners a prescriptive roadway easement over an irregular strip of land across appellants’ property. Appellants also contest the findings and judgment granting a fee by adverse possession to a second strip of land running along the common boundary between plaintiffs’ and respondents’ acreage. In addition, the appeal involves accompanying injunctions directing appellants not to interfere with or enter upon the easement property or adverse fee.

Defendants-appellants contend that plaintiffs-respondents failed to prove the elements of adverse possession as to either the roadway easement or the adverse fee since the evidence respondents rely on showed permissive and not continuous, exclusive or adverse use.

Although we discuss the easement and fee issues separately the same standard of review applies. The 1976 standard announced in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976) was adopted by this court in the field of easements in Spooner v. Bates, 550 S.W.2d 200, 202 (Mo.App.1977).

The roadway easement, called the old gravel entrance during the trial, is 16 X 21/65.93 X 79.03 feet. The adverse fee is a strip of land 13.89 X 14.57/186.82 X 211 feet. The parties own adjoining farmland in Cape Girardeau County with plaintiffs’ property lying north of defendants’ property. Neither of the parties reside on their land.

THE OLD GRAVEL ENTRANCE PRESCRIPTIVE EASEMENT

The evidence supports a finding that the record dividing line between the south edge of plaintiffs’ property and the north portion of defendants’ property is the quarter-quarter section line (section line) running east and west. When this dispute began in 1981 there was an old gravel entrance off of Highway U a distance of 120 feet more or less southeast of the intersection of the section line and Highway U. The entrance ran northeast from Highway U approximately 75 feet across defendants’ property and into the southern line of plaintiffs’ property at its intersection with the section line.

When plaintiffs acquired their property in 1966 Mrs. Shepherd lived there under what the plaintiffs called “Dowry” rights. Plaintiffs permitted her to continue living on their property. Sometime between 1953 and 1955 she built a cabin on that property. Mrs. Shepherd lived in the cabin from the time it was built until 1961. The cabin was vacant for two years until she returned in 1963. She vacated the cabin in 1967 or 1968. Thereafter no one lived there.

There may have been a roadway entirely on plaintiffs’ property leading from Highway U to the cabin which was well north of the common boundary line. Nonetheless, Mrs. Shepherd constructed the old gravel entrance. She had permission of the then owners of defendants’ property, the Nuss-baums, to drive over or park on the en-tranceway.

Defendants acquired their property in a family transfer after the death of defendant Orna Nussbaum Eakins’ mother. The Nussbaums, Mrs. Shepherd and her visitors, farming tenants, repairmen, the defendants, and plaintiffs used the old gravel entrance from time to time for recreation or as access to the cabin. Generally the use was without the knowledge of the defendant or their predecessor in title. When the use was known there was no objection.

We consider only the evidence favorable to the trial court’s findings in favor of a prescriptive easement acquired by adverse possession and we conclude that the trial court’s findings and judgments are not supported by substantial evidence and misapply the law. Spooner v. Bates, 550 S.W.2d at 202.

We recently said in Chase v. Fania, 675 S.W.2d 87, 88 (Mo.App.1984), citing the holding of Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28 (1951),

[t]he four essential facts for the plaintiffs to prove in order to sustain their claim to an easement by prescription are, first, user for the prescribed period [i.e., ten years, (citations omitted)]; second, that the user was adverse; third, that it was under a claim of right; fourth, notice to the owner of the user, and of its character and of the claims of right.

675 S.W.2d at 88. We there affirmed a judgment denying an easement by prescription. The evidence was undisputed that the parties shared the use of a common driveway. However, plaintiff's use was held not to be “adverse,” defined as claimants non-recognition of the record owner as an adverse authority either to prevent or permit its continuance. Id. at 89. All that was proved was use. So it is in the present case.

Mrs. Shepherd constructed and used the old gravel entrance. Her use was not continuous for a period of ten years because of a period of absence. Further, as she was never a part of the chain of title on which plaintiffs rely her use is wholly immaterial to the issue here.

Plaintiffs’ use of the roadway was periodic over the term of ownership of their land between 1966 and 1981. There was no evidence of notice to the Nussbaums, defendants’ predecessors in title, or to defendants of the assertion of an adverse claim or of some claim of right to the roadway. Long continued use alone will not create a prescriptive right. Chase v. Fania, 675 S.W.2d at 89; George v. Dickinson, 504 S.W.2d 658, 662 (Mo.App.1974). In the George case we said that during the period of use relied upon the user must do so in a posture of non-recognition of the owner’s authority to permit or prevent such use. Id. at 662 n. 4; see also McDougall v. Castelli, 501 S.W.2d 855 (Mo.App.1973).

A full review of the evidence indicates that plaintiffs made no effort to prove that use of the entranceway was the only possible approach to their property or the cabin (a way of necessity) or that their use did not recognize in defendants the right to prevent or permit its continuance. Accordingly, the proof of the four essential facts necessary to establish a prescriptive easement by adverse possession were not proven.

In view of our ruling on this part of the judgment it is unnecessary to address the injunctive provisions of the decree relating to the easement which prevented defendants from the use or entrance upon the easement.

THE ADVERSE FEE

In order to establish title by adverse possession claimant “has the burden of proving by the preponderance of the evidence the existence for the entire statutory period of each and every element of adverse possession. He must show actual, hostile, i.e., under a claim of right, open and notorious, exclusive and continuous possession of the property for ten years.” Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo.App.1977). The claimant’s occupancy must be truly adverse and in opposition to the title of the record owner. Id. at 125. Mere possession is not sufficient, the possession must be hostile or under a claim of right. Id. at 127. It must be open and notorious, that is conspicuous, widely recognized and commonly known. Id. at 127. It must be exclusive such that claimant occupies the land for his own use and not for another. Id. at 127. Finally, it must be continuous for the entire statutory period of ten years. Id. at 127.

With this statement of the law in mind some additional facts must be reviewed. The parties stipulated that the record property line was the quarter-quarter section line. Plaintiffs’ evidence was that a tree line south of the quarter-quarter section line was the “known” property line and that blaze marks on the trees were indications that it was the property line. Plaintiffs’ tenants were told to farm from the tree line north and there was testimony that that was done. Neither party ever erected fences along either the quarter-quarter section line or the tree line. There was no evidence that the plaintiffs paid real estate taxes on the claimed strip of land and it is unlikely that they did in view of the stipulation of the record line along the quarter-quarter section line. There was no evidence that defendants were aware of plaintiffs’ use (through the farming tenants) to the tree line. As no one including both plaintiffs and defendants and their predecessors in title, knew precisely where the line was, the principle announced in Tesón v. Vasquez, 561 S.W.2d at 127 applies. We there said:

One overriding requirement to establish adverse possession to a particular piece of property is that the precise location of the land claimed be identified in such a way that the boundaries may be ascertained and recognized (citation omitted). Absent proof by claimant of the exact location of the lands claimed, any judgment would be void because it would rest entirely on speculation and conjecture, (citation omitted).

561 S.W.2d at 127. If plaintiffs were unaware they were using defendants’ property then they did nothing that was inconsistent with their neighbor’s ownership of the disputed strip. The evidence fails to show “ ‘a distinct and positive assertion of a right hostile to the owner, and brought home to [them]’ Miller v. Berry, 270 S.W.2d 666, 668 (Mo.App.1954) that is required to convert a permissive use to an adverse one, or to establish an adverse use in any event.” Chase v. Fania, 675 S.W.2d at 89. Although use over a long period of time may create an inference of adverse use and shift the burden of proof to defendant to show a license, George v. Dickinson, 504 S.W.2d at 663, that will be true only if there is proof by the plaintiff that the extent of the use was known to the defendant. Knowledge was not proved here. Further, the requisite knowledge relates to the use of property known by the parties- to be defendants’ property. Here neither plaintiffs nor defendants had actual knowledge of the record property line at the time of use.

Plaintiffs’ proof of adversity consists entirely of farming to the tree line. There was no proof of known adverse or exclusive use, or notice to the owner of the claim or its character. Plaintiffs’ proof of use standing alone is not enough.

Having held that plaintiffs failed to prove adverse possession of the strip of land there is no need to discuss the injunction issue.

The trial court judgment as to both the claimed prescriptive easement and the adverse fee is reversed.

REINHARD, C.J., and DOWD and CRIST, JJ., concur.

      . Compare the previous standard applied in George v. Dickinson, 504 S.W.2d 658, 662 (Mo. App.1974).


text:
    ALICE, et al., Plaintiffs-Appellants, v. RONALD, Defendant-Respondent.
    No. 13601.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 19, 1984.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-appellants.
    John R. Fowlkes, Caruthersville, Jimmy D. Collins, Memphis, Tenn., for defendant-respondent. -
   TITUS, Judge.

A person born of parents not married to each other is denominated a “bastard.” Webster’s New World Dictionary of the American Language, College Ed., p. 124. Chris is such a child whose mother is Alice and whose admitted father is Ronald.

Alice and Chris, a minor by Alice, his next friend, sued Ronald. The petition filed April 28, 1983, asked the court to decree that Ronald was the father of Chris and to require Ronald to pay Alice’s birthing expenses and a monthly sum for Chris’ maintenance and support. In his answer filed August 26, 1983, Ronald admitted he was Chris’ father, averred, as did plaintiffs, that he had been paying Alice child support in the sum of $250 per month and that the $25,000 actual and $50,000 punitive damages awarded to Alice in another case against him served to bar, inter alia, Alice’s claim for birthing expenses. The answer additionally alleged that as Ronald had previously filed for bankruptcy, all of Alice’s money claims, except for child support, had been or would be discharged in the bankruptcy court.

Among other things after trial, the court ruled that Chris was the child of Alice and Ronald, that Ronald was obligated for child support in the monthly sum of $450 and that Ronald was entitled to visitation privileges with Chris every other Saturday for a period of two hours. Alice appealed claiming (1) the trial court lacked authority or jurisdiction to award Ronald visitation rights with Chris, or, alternatively, (2) that such an award was erroneous because Ronald was not a fit person to be endowed with visitation rights.

R— v. R — , 431 S.W.2d 152, 154 (Mo.1968), held that certain enumerated decisions of the United States Supreme Court “compel the conclusion that the proper construction of our statutory provisions relating to the obligations and rights of parents (§§ 452.150, 452.160, RSMo 1959, § 559.-353, RSMo 1967 Supp., V.A.M.S.) affords illegitimate children a right equal with that of legitimate children to require support by their fathers.” Also, K.D.R. v. D.E.S., 637 S.W.2d 691, 693[1] (Mo. banc 1982). Albeit Ch. 452 is entitled “Dissolution of Marriage, Divorce, Alimony and Separate Maintenance,” it is apparent from R— v. R— that the Supreme Court found the cited statutes not singularly directed to actions devoted to dissolution of marriages. Likewise, references in the opinion to the criminal statute would seem to expand the concept of the basic subject beyond the statutory abhorrence of “Criminal nonsupport” to the regulation of the general overall obligations and rights endowed unto parents, male and female, of bastard children.

R— v. R— and subsequent opinions using it as precedent are concerned with the rather restricted question of a bastard’s right to require support by his father. They do not directly deal with the initial problem posed upon this appeal which is: Does the father of an illegitimate child have a right of reasonable visitation with that child?

While we have not been directed to nor independently found any Missouri decision directly addressing the question, we find that many jurisdictions have recognized the right of a putative father to visit his child, provided such visitation is in the best interest of the child. Bagwell v. Powell, 267 Ala. 19, 22, 99 So.2d 195 (1957); Strong v. Owens, 91 Cal.App.2d 336, 341, 205 P.2d 48 (1949); Forestiere v. Doyle, 30 Conn.Sup. 284, 310 A.2d 607, 609 (1973); In Re One Minor Child, 295 A.2d 727 (Del.1972); Mix-on v. Mize, 198 So.2d 373, 375 (Fla.App. 1967), cert, denied 204 So.2d 211 (Fla.); People ex rel. Vallera v. Rivera, 39 Ill. App.3d 775, 351 N.E.2d 391 (1976); State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (1978); Taylor v. Taylor, 295 So.2d 494, 496 (La.App.1974), cert, denied 299 So.2d 799 (1974); Gardner v. Rothman, '370 Mass. 79, 345 N.E.2d 370 (1976); Turner v. Saka, 90 Nev. 54, 60, 518 P.2d 608 (1974); Baker v. Baker, 81 N.J.Eq. 135, 85 A. 816 (1913); People ex rel. Francois v. Ivanova, 14 A.D.2d 317, 221 N.Y.S.2d 75 (1961); Ex Parte Hendrix, 186 Ok. 712, 713, 100 P.2d 444 (1940); Gwiszcz Appeal, 206 Pa.Super. 397, 213 A.2d 155, 15 A.L.R.3d 880 (1965); In re Guardianship of Harp, 6 Wash.App. 701, 706, 495 P.2d 1059 (1972); Slawek v. Stroh, 62 Wis.2d 295, 304, 215 N.W.2d 9 (1974). Recognition of this right is especially appropriate where, as here, the father has acknowledged paternity and has contributed to the support of the child. For-estiere v. Doyle, supra, and People ex rel. Vallera v. Rivera, supra.

Contrary to Alice’s first point relied on we rule, as did the many cited cases, supra, that the trial court possessed jurisdiction and authority to award Ronald visitation rights with Chris. Nevertheless, although the trial court possessed such jurisdiction and authority, visitation is not automatic because only a fit and proper parent is entitled to have access to and at reasonable times visit and be visited by a child who is in the principal custody of the other parent. Our obligation upon review is not to disturb the ruling of the court nisi “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

In cases involving visitation rights of a parent not having custody, that parent is normally entitled to visitation unless it be shown that such visitation would endanger the child’s physical health or impair his emotional development. Visitation rights may be denied only upon such a showing. § 452.400. There was considerable testimony, pro and eon, anent Ronald’s qualifications to visit his infant son. Without going into detail, much of the testimony proffered by Alice, some later found wanting, concerned itself with the mutual hostility or enmity between the parties rather than Ronald’s fitness, vel non, to have visitation with Chris. Given the nature of Ronald’s extremely limited right as granted by the court, Alice has not demonstrated to our satisfaction that the trial court’s conclusion was not supported by the evidence or was against the weight of the evidence.

The fact there is evidence in the record which might have supported a different conclusion does not demonstrate the court’s holding is contrary to the weight of the evidence. Roark v. Harvey, 544 S.W.2d 287, 291[3] (Mo.App.1976). We are bound to give due regard to the opportunity of the trial court to judge the credibility of witnesses as that task is one for the trial court and not one for us. Rule 73.01(c)(2), V.A.M.R.; Sedmak v. Charlie’s Chevrolet, Inc., 622 S.W.2d 694, 695[2] (Mo.App.1981). Also when, as here, the court nisi is the trier of the facts, it has leave to believe all, part or none of the testimony of any witness albeit such testimony is uncontradict-ed. Frost v. Taylor, 649 S.W.2d 264, 265[1] (Mo.App.1983); Corzine v. Stoff, 505 S.W.2d 162, 165[8] (Mo.App.1973). Visitation rights are not meted with the purpose of rewarding one parent or punishing another parent. Asbell v. Asbell, 430 S.W.2d 436, 439 (Mo.App.1968).

As we find no merit in the claimed errors advanced by Alice in either of her two points relied on, we affirm the pronouncements of the trial court.

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

APPENDIX

Sec. 452.150. Services and earnings of unmarried minor children — custody and control of. — The father and mother living apart are entitled to an adjudication of the circuit court as to their powers, rights and duties in respect to the custody and control and the services and earnings and management of the property of their unmarried minor children without any preference as between the said father and mother, and neither the father nor the mother has any right paramount to that of the other in respect to the custody and control or the services and earnings or of the management of the property of their said unmarried minor children; pending such adjudication the father or mother who actually has the custody and control of said unmarried minor children shall have the sole right to the custody and control and to the services and earnings and to the management of the property of said unmarried minor children.

Sec. 4-52.160. Father and mother, parent, child, defined — how construed. — The terms of section 452.150 shall apply to children born out of wedlock and to children born in wedlock, and the terms “father and mother”, “parent”, “child”, shall apply without reference to whether a child was born in lawful wedlock.

Sec. 568.040. Criminal nonsupport. — “1. ... a parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his minor child or his stepchild. 2. For purposes of this section: ... (2) ‘Child’ means any natural or adoptive, legitimate or illegitimate child; ... .”

      . Unless otherwise stated, all subsequent statutory references are to RSMo 1978. Also note that § 559.353, RSMo 1967 Cum.Supp. has been replaced by § 568.040. For texts of the current versions of the just cited statutes, see the Appendix hereof.


text:
    In re the MARRIAGE OF Teresa GARDNER and Avery Clayton Gardner. Teresa Gardner (Williams), Petitioner-Appellant, and Avery Clayton Gardner, Respondent.
    No. 13515.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 21, 1984.
    James A. DeReign, DeReign & DeReign, Caruthersville, for petitioner-appellant.
    J. Michael Mowrer, Dalton, Treasure & Mowrer, Kennett, for respondent.
   TITUS, Judge.

Petitioner appeals from the denial of her motion to modify child support provisions of a dissolution decree. The original decree, entered March 28, 1980, granted petitioner custody of the one minor child born of the marriage and ordered respondent to pay petitioner $150 per month for the support of said child. In her amended motion to modify, filed August 12, 1982, petitioner requested that the court require respondent to pay more than $150 per month child support on the grounds “[t]hat the child will be entering the public school system in the Fall of 1982, with increased expenses for clothes, school supplies and incidentals related to school” and “[t]hat Petitioner believes that the Respondent has had several pay increases with his employer, the extent of which is unknown to the Petitioner, which should enable him to pay greater child support monies to the Petitioner.”

Petitioner contends in her first point that the trial court “erred in its Judgment as it erroneously declared the law by failing to use the word ‘continuing’ as stated in § 452.370(1).” We recount that, after hearing on the motion to modify, the court made the following handwritten docket entry on September 20, 1983:

“Case taken up again. Ct [Court] finds that there have been changes of circumstances including the remarriage of each party, an increase of income of Respondent, a change of occupation of Petitioner, a reduction of income of Petitioner, an increase in age of the child of the parties and the enrollment of said child in school- and that said changes of circumstances are not so substantial and continuing as to make the terms of the decree heretofore entered in this case unreasonable. It is ordered that Petitioner’s motion to modify said decree is denied. The Court further finds after considering all relevant factors including the financial resources of both parties that it should not award Petitioner any amount of attorneys fees or costs ....”

In its handwritten judgment, also entered September 20, 1983, the court reiterated in substance the above findings but rather than recite that the enumerated changes in circumstances “are not so substantial and continuing” as to make the terms of the decree unreasonable, the court referred to such changes merely as “not so substantial as to make the terms of the said decree unreasonable.” Petitioner contends the omission from the formal judgment of the word “continuing” constituted noncompliance with § 452.370(1) and, hence, reversible error.

As respondent correctly points out, it is a sufficient basis for denial of a motion to modify that such changes in circumstances as are found to exist are either not sufficiently substantial or not of a continuing nature. This much is implicit in the statute’s language to the effect that “the provisions of any decree respecting maintenance or support may be modified ... only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” (Emphasis ours.) Thus, the trial court’s apparently inadvertent omission from its formal entry of judgment of the word “continuing” is of no consequence, given that the insubstantiality of the changed circumstances in question was adequately chronicled. Petitioner’s first point is denied.

In her second point petitioner cites as “an erroneous declaration of the law” the trial court's failure to recognize, via express recital in its judgment, “the primary responsibility of the father to support the child.” Section 452.340 provides:

“In a proceeding for nonretroactive invalidity, dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
(1) The father’s primary responsibility for support of his child;
(2) The financial resources of the child;
(3) The financial resources of the custodial parent;
(4) The standard of living the child would have enjoyed had the marriage not been dissolved;
(5) The physical and emotional condition of the child, and his educational needs; and
(6) The financial resources and needs of the noncustodial parent.”

While this section clearly requires that the court consider, inter alia, the six listed factors, nowhere does it mention a duty on the part of the court to make any particular recitations with respect thereto in its findings or judgment. The case of Trunko v. Trunko, 642 S.W.2d 673 (Mo.App.1982), does not, as petitioner suggests, impose such a requirement but merely states, at n. 7, p. 677, that “when reviewing child support awards, the emphasis is not upon the financial resources of the child, but on the father’s primary responsibility for support and his financial resources.” As there is no evidence that the absence of any particular “factor recitals” betokens a failure by the court to consider that which they would have expressed, we deny petitioner’s second point.

In her third and final point, petitioner contends the trial court’s judgment is against the weight of the evidence which, it is argued, proved increased need on the part of the child as well as the financial ability of respondent to perform his share of satisfying that increased need. Upon review of the record we are convinced that the judgment of the trial court, reviewable per Rule 73.01, is supported by substantial evidence, is not against the weight of the evidence, and is therefore susceptible of summary affirmance in accordance with Rule 84.16(b). The point is denied.

The judgment is affirmed.

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

      . Statute and rule references are to V.A.M.S. and V.A.M.R., respectively.


author: MAUS, Judge.

text:
    In Interest of D.M.J., Jr. and T.H.L. Crawford County Juvenile Officer, Respondent, C.L., Appellant.
    No. 13400.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 21, 1984.

      Paul L. Bell, Steelville, for appellant.
    No appearance for respondent.
   MAUS, Judge.

The trial court terminated appellant-mother’s parental rights in respect to her illegitimate sons, D.M.J. and T.H.L. The reputed father of D.M.J. denied paternity. Nonetheless, he consented to the termination of his parental rights. The reputed father of T.H.L. was deceased. The appellant-mother presents two points of alleged error.

Her first point is that the petition sought termination upon the basis of § 211.447.2(2)(i)b, RSMo Supp.1984, (unrec-tified conditions) and the court impermissi-bly terminated her rights upon a finding under § 211.447.2(2)(b) (neglect). Due process demands “[t]he petition in a termination of parental rights case should contain allegations likely to inform those persons involved of the charges, to the end that objection may be prepared.” In Interest of W.F.J., 648 S.W.2d 210, 216 (Mo.App.1983). Also see M.R.H. v. McElroth, 622 S.W.2d 15 (Mo.App.1981). Four of the statutory bases for termination are discussed and distinguished in In Interest of W.F.J., supra. It may be assumed, without deciding, that the appellant-mother’s first point as stated is sound.

However, that point has no basis in fact. The petition has not been drafted with precision. In her statement of facts and argument, the appellant-mother emphasizes a sentence of the petition cast in the language of § 211.447.2(2)(i)b. “Specifically, the mother of said children, [mother], has failed on a continuing basis, to rectify the conditions which formed the basis of the Petition filed herein under the provisions of RSMo 211.031.” She then stresses the finding in the judgment of termination that:

[Mother] has neglected, without good cause, each of the aforesaid children for a period of six months prior to the filing of the Petition and specifically that though each of said children has been in the legal or actual custody of others, she has failed to provide either one of said children with a continuing relationship during said period of time as she has failed to communicate or visit with said children other than on a token basis.

However, the appellant-mother does not afford adequate recognition to the portion of the petition that reads: “[T]he said [mother] has neglected, without good cause, each of the aforesaid children for a period of six months prior to the filing of the original Petition to Terminate.” That portion of the petition charges neglect in the language of the statute, § 211.447.-2(2)(b). That is clear notice of her conduct that is alleged to be a basis for termination. That charge and notice was not negated by an additional reference to a failure to rectify. It has been said:

[T]he neglect definition of § 211.447.-2(2)(b): failure of a parent to provide, on a continuing basis, the care, guidance and control necessary for the physical, mental, and educational well- being of a child’ [emphasis added] suits the proof required for the termination of the parental right based upon an uncorrected- condition of neglect which induced initial jurisdiction over the child under § 211.031 and then becomes the basis for termination of parental right under § 211.447.2(2)(h)b [RSMo 1978].

D.E.J. v. G.H.B., 681 S.W.2d 113, 119 n. 10 (Mo.App.1982). Also see In Interest of R.L.P., 652 S.W.2d 185 (Mo.App.1983). If the petition is construed as alleging as a basis “unrectified conditions” as set forth in § 211.447.2(2)(i)b, and “neglect” as defined in § 211.447.2(2)(b), the proof and finding of neglect is sufficient to sustain the termination. In Interest of Gowen, 610 S.W.2d 319 (Mo.App.1980). Any doubt the petition charged neglect is dispelled by the additional allegation the appellant-mother did not comply with numerous approved plans. Only the subsection declaring neglect to be a basis for termination refers to an approved plan. § 211.447.2(2)(b). Compare In Interest of W.F.J., supra. Reasonably construed, the petition alleged neglect as a basis for termination and gave the appellant-mother notice of that charge. See Matter of Dunn, 620 S.W.2d 46 (Mo.App.1981).

By her second point the appellant-mother attacks the sufficiency of the evidence. A brief statement will provide background for consideration of the evidence on the critical issues. In February, 1980, appellant-mother had been living with a male, D.L.D., for a period of months. D.M.J. was a little over two years old. T.H.L. was less than one year of age. For an unexplained reason, D.L.D. had at times locked D.M.J. in a closet or in the bathroom. In February, 1980, he physically abused D.M.J. to such an extent that the appellant-mother informed the authorities. Nevertheless, after a few days she resumed living with D.L.D. The Juvenile Court then assumed jurisdiction of D.M.J. In April, 1980, because of medical neglect, the Juvenile Court assumed jurisdiction of T.H.L.

By July, 1980, the appellant-mother was living in Cuba, Missouri. That month, D.M.J. was returned to her custody. In August, 1980, T.H.L. was returned. On September 24, 1980, she acknowledged her children were neglected. The following day, upon her consent, the Juvenile Court again assumed jurisdiction of them. With D.L.D., she moved to another community. Her living conditions there were termed unsuitable. In December of 1980, T.H.L. was gravely ill. Nonetheless, the appellant-mother did not keep medical appointments for him. Within a short time, the children were again taken from her custody. They have since resided in foster homes.

The history of the appellant-mother after December, 1980 is sketchy. At one time she lived with a sister. She worked at a motel, but quit that job. In the fall of 1981, she worked at a factory. She was fired because she was late, missed work and reported to work under the influence of alcohol and marijuana. For a period she lived in St. Louis. She then moved to Her-mann. There she lived with one D.M. She was living with him at the time of the trial. If she regained custody of the children, it was her intention that she and D.M. and the children would live together. The appellant-mother had received training as a practical nurse. She was scheduled to commence employment at a rest home.

After December, 1980, her visitation of the children was sporadic. There was evidence she lived with and associated with persons who were not law abiding. When she had temporary custody of the children, she often left them with a baby sitter. On one occasion the baby sitter had to get the appellant-mother from a bar.

The appellant-mother first argues there was no proof she had neglected the children for six months before the petition was filed. The petition was filed on February 2, 1983. While the appellant-mother testified that on occasion “she bought stuff” for the children, she never otherwise contributed to their support. She did not visit or write them during the nine months before the petition was filed. The excuses she offered were nebulous. In December, 1982, at the instance of a social worker, arrangements were made for her to visit the children during the Christmas season. The appellant-mother was IV4 hours late and there was no visit. After the petition was filed and before the trial, she visited the children three times. However, the trial court could find these visits made after the children had not been in her custody for more than two years were reflexive in nature. There was evidence she failed to provide the children with a continuing relationship, § 211.447.2(2)(b), for longer than six months before the petition was filed. That failure could not be defeated by token efforts. § 211.447.2(2)(b). The trial court did not err in finding clear, cogent and convincing evidence of the charged neglect. Compare In the Interest of R.L.P., supra, and In Interest of Gowen, supra.

The appellant-mother then correctly argues that under the allegations of the petition, the juvenile officer was required to prove she did not reasonably comply with an appropriate plan as set forth in § 211.447.2(2)(b). In Interest of W.F.J., supra.

After the Juvenile Court first assumed jurisdiction of the children, five such plans were prepared. The later plans were essentially revisions of the first plan. Each plan in some form placed upon appellant-mother an obligation to engage in counseling and establish a stable environment for the children. A representative of the Division of Family Services summarized by testifying that the appellant-mother did not comply with any plan.

The last plan was dated January 19, 1982. That plan called upon appellant-mother to do the following. To enter a program at the Blosser Home (a rehabilitation agency). To visit the children every other week. To eliminate excessive alcohol consumption and pot smoking. To have regular contact with her social worker and keep the social worker informed of any changes in circumstances.

Because there was no evidence of her excessive use of alcohol or of marijuana within six months before the filing of the petition, the appellant-mother argues there was no proof she did not reasonably comply with an approved plan. She was convicted of a driving while intoxicated offense committed in March, 1982. In November, 1982, in the apartment of a friend, she attempted suicide. She told the staff at the Blosser Home she did not desire to participate in the program. Her failure in visitation has been recounted. She did not keep the social worker informed of her whereabouts. The trial court did not err in finding clear, cogent and convincing evidence of appellant-mother’s failure to reasonably comply with an appropriate plan. The judgment is affirmed.

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