In the 

Missouri Court of Appeals 

Western District

BOYD MCGATHEY, ET AL.,

Respondents,

v.

MATTHEW K. DAVIS TRUST,

Appellant.

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WD77437

OPINION FILED: February 3, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Edith Messina, Judge

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge 

and Gary D. Witt, Judge

This is an appeal from a judgment entered in a garnishment proceeding which 

ordered garnishees Roger Hoyt ("Hoyt") and Country Club Trust Company, N.A.

("Country Club Trust Company") (collectively the "MKD Trustees"), in their capacity as 

the trustees of the Matthew K. Davis Trust ("MKD Trust"), to pay $105,000 into the 

Court following the determination of exceptions to garnishment interrogatory answers 

filed by Boyd McGathey and Debra Augustine (collectively "Garnishors"). The MKD 

Trustees argue that the trial court erred in denying their motion for summary judgment 

addressing Garnishors' exceptions. 
2

Because the MKD Trustee's point relied on preserves nothing for our review, we 

dismiss this appeal. 

Factual and Procedural History

On September 12, 2007, Garnishors won a $500,000 judgment against Matthew K. 

Davis ("Davis") following a jury trial. While trying to satisfy the judgment, Garnishors 

learned that Davis was the beneficiary of two trusts: the May Development Trust ("May 

Trust") and the MKD Trust. Davis's father ("Grantor") created the trusts in a single Trust 

Agreement which provides the terms for each trust.1

Article III of the Trust Agreement addresses the May Trust and provides that the 

May Trust shall hold and administer May Development Company stock and real estate--a

building and parking lot--located at 4325 Troost (the "May Trust Assets") for a period of 

up to fifteen years after the Grantor's death. May Development Company employee Jim 

Henson ("Henson") was named the initial trustee of the May Trust. Article III, Section B,

of the Trust Agreement requires Henson to make monthly payments to Davis "during the 

life of the trust" in an amount equal to the monthly rental income generated from the 

building and parking lot less any taxes due from either the May Trust or Davis (the 

"Mandatory Distribution"). After taxes, the Mandatory Distribution totaled $5,000 each 

month. Article III, Section C, of the Trust Agreement provides in pertinent part that 

"[u]pon the death or resignation or failure to act hereunder of Jim Henson, [the May 

 

1The Trust Agreement also created three other trusts that are not the subject of this appeal. The Trust 

Agreement contains some articles that apply to specific trusts and other articles that apply to all trusts.
3

Trust] shall be merged into and be operated as a part of the [MKD Trust] under Article V 

[of the Trust Agreement]." 

Article V of the Trust Agreement addresses the MKD Trust and provides that the 

MKD Trust will hold the remainder of the Grantor's "trust estate" (the "MKD Trust 

Assets"). The Trust Agreement names Hoyt and Country Club Trust Company as the

MKD Trustees. Article V provides in pertinent part:

The [MKD] Trustee, in its sole discretion, may make distributions to or for 

the benefit of Matthew K. Davis only at such times the rental income 

equivalent from the property located at 4325 Troost and its adjacent 

parking lot are not being made or are insufficient to attend to health, 

education, maintenance, and support of Matthew K. Davis. In such event, 

the discretionary payments shall not exceed the greater of the trust income 

or five thousand dollars ($5,000) per month.

Article V thus permits the MKD Trustees to make discretionary distributions to Davis 

from the MKD Trust Assets, but only if the Mandatory Distribution from the May Trust 

is not being made or is insufficient to support Davis. Article V does not explain the 

circumstances that could give rise to the Mandatory Distribution "not being made."

Article VIII, which applies to both the May Trust and the MKD Trust, contains a 

spendthrift clause that provides:

To the extent permitted by law, none of the beneficiaries hereunder shall 

have any power to dispose of or to charge by way of anticipation or 

otherwise any interest given to such beneficiary; and all sums payable to 

any beneficiary hereunder shall be free and clear of debts, contracts, 

alienations and anticipations of such beneficiary, and of liabilities for levies 

and attachments and proceedings of any kind, at law or in equity. . . .

Article IX, which also applies to both the May Trust and the MKD Trust, includes a 

resignation clause that provides "[a]ny Trustee at any time acting hereunder is authorized 
4

to resign from that office at any time, without any reason, by delivering an acknowledged 

instrument to that effect to the adult or otherwise legally competent beneficiaries. . . ." 

The Trust Agreement defines "acknowledged instrument" as "a written instrument 

executed in the presence of two subscribing witnesses, or otherwise acknowledged or 

proved with the formalities required to permit recording of a deed of real property in the 

State in which Grantor is domiciled at his death."

From March 25, 2011, to November 22, 2011, Garnishors requested that Writs of 

Garnishment with interrogatories be issued to Henson in his capacity as trustee of the 

May Trust. Garnishors were successful in capturing four Mandatory Distributions to 

Davis, totaling $20,000.

On March 16, 2012, Garnishors requested that another Writ of Garnishment with 

interrogatories be issued to Henson. Henson then sent a letter to the MKD Trustees dated 

April 30, 2012, stating that he was resigning as trustee of the May Trust effective 

immediately.2 Henson thereafter answered the interrogatories and informed Garnishors 

that he had resigned as trustee of the May Trust on April 30, 2012. 

On June 4, 2012, Garnishors requested that another Writ of Garnishment with 

interrogatories be issued to Henson. Henson answered the interrogatories by stating that 

the May Trust had ceased to exist. Garnishors filed exceptions to Henson's interrogatory 

answers arguing that the May Trust had not ceased to exist and that the May Trust Assets 

remained in the May Trust. On November 20, 2012, Henson filed a reply, arguing that he 

 

2There appears to be no dispute between the parties that this resignation did not comply with the technical 

requirements of Article IX of the Trust Agreement, although the parties do dispute the effect of noncompliance on 

the continued independent existence of the May Trust. 
5

resigned as trustee on April 30, 2012, and that the May Trust terminated upon his

resignation.

On August 15, 2012, Garnishors began requesting the issuance of periodic Writs 

of Garnishment to the MKD Trustees. Those requests have continued to this date. In 

each case, the MKD Trustees have answered the garnishment interrogatories by stating 

that the May Trust Assets are now MKD Trust Assets by virtue of merger of the trusts 

following Henson's resignation; and that as a result, the only distributions that can be 

made to Davis are discretionary distributions pursuant to Article V of the Trust 

Agreement that cannot be garnished as a matter of law. Garnishors have filed exceptions 

to the MKD Trustees' interrogatory responses which argue that the May Trust continues

to exist as an independent trust, even though it is now being administered by the MKD 

Trustees, and that the Mandatory Distributions to Davis must still be made.

On September 5, 2013, the MKD Trustees filed a motion for summary judgment

in an effort to resolve all pending garnishments. The motion argued that the May Trust 

Assets merged into the MKD Trust as of April 30, 2012, and were to be administered 

thereafter under Article V of the Trust Agreement, which only permits discretionary 

distributions that cannot be garnished as a matter of law. 

Garnishors argued in response to the motion for summary judgment that Henson's 

resignation on April 30, 2012, did not comply with the terms of the Trust Agreement and 

was not legally effective to cause the May Trust to merge with the MKD Trust, requiring 

continued payment of the Mandatory Distributions by whomever has control of the May 
6

Trust Assets, whether that be Henson or the MKD Trustees.

3

 Garnishors alternatively 

argued that even if the May Trust and the MKD Trust merged on April 30, 2012, the 

Grantor did not intend merger to terminate the May Trust but instead intended the May 

Trust to be administered by the MKD Trustees, requiring the Mandatory Distributions to 

continue. 

The MKD Trustees argued in reply that even if Henson's resignation failed to 

comply with the procedures described in the Trust Agreement, the resignation constituted 

Henson's "failure to act," a separate trigger for merger of the May Trust into the MKD 

Trust pursuant to Article III, Section C, of the Trust Agreement. The MKD Trustees also 

disagreed with Garnishors' contention that the Grantor did not intend merger of the trusts 

to terminate the May Trust.

The summary judgment pleadings thus framed three issues: (1) whether Henson's 

April 30, 2012 resignation was effective to trigger merger of the May Trust into the MKD

Trust pursuant to Article III, Section C, of the Trust Agreement; (2) whether Henson's

April 30, 2012, resignation, if not effective to trigger merger, constituted a failure to act 

that triggered merger of the May Trust into the MKD Trust pursuant to Article III, 

Section C, of the Trust Agreement; and (3) whether merger of the May Trust into the 

MKD Trust terminated the May Trust and the corresponding obligation to make 

 

3Consistent with this position, Garnishors have continued, to this date, to request that Writs of Garnishment 

be periodically issued to Henson. 
7

Mandatory Distributions or instead merely shifted the obligation to administer the May 

Trust to the MKD Trustees.

4

On December 2, 2013, the trial court conducted a hearing in which Garnishors and 

the MKD Trustees participated.5 The trial court issued a judgment on January 31, 2014. 

On February 28, 2014, the trial court issued an amended judgment ("Judgment"). The 

Judgment held that after considering the pleadings associated with the MKD Trustees' 

motion for summary judgment (which the Judgment itemized), oral arguments and posttrial briefing, the motion for summary judgment was denied. The Judgment further held 

that:

Judgment is entered in favor of Plaintiffs and against Garnishees Country 

Club Trust Company, N.A. and Roger Hoyt, pursuant to Rule 90.10(b)6in 

the amount of $105,000 to be paid into Court within thirty (30) days of the 

date of this Amended Judgment. This judgment shall bear interest from 

and after January 31, 2014 at 5.25% per annum pursuant to R.S.Mo. §

408.040.2.

 

4Garnishors do not appear to contest that if merger of the trusts terminated the May Trust and the 

corresponding obligation to make the Mandatory Distribution, they cannot garnish the MKD Trustees as 

discretionary distributions cannot be reached by garnishment with limited exceptions not applicable to this case. See

section 456.5-502. 

5

Shortly before this hearing, the trial court set aside an order it had earlier entered granting Henson's motion 

for summary judgment on Garnishors' exceptions to Henson's interrogatory answers. Henson's pending motion for 

summary judgment was not, however, argued during the December 2, 2013, hearing, and, according to Case.net, 

remains pending. However, as the garnishments served on Henson are separate and distinct from the garnishments 

served on the MKD Trustees, the still pending dispute between Garnishors and Henson does not impact the finality 

of the dispute between Garnishors and the MKD Trustees, even though the bases for taking exception to the 

interrogatory responses filed by Henson and the MKD Trustees are factually interrelated. The MKD Trustees and 

Garnishors did enter into a Stipulation that is a part of the record on appeal agreeing that should the trial court find 

that Henson's April 30, 2012, resignation was not legally effective, Henson would be treated as having resigned on 

December 2, 2013.

6All Rule references are to Missouri Court Rules, Volume I-State, 2014. The version of Rule 90 adopted in 

1999 remains in effect today and controls the Writs of Garnishment issued to the MKD Trustees. 
8

The amount of the Judgment represents the $5,000 Mandatory Distribution multiplied by 

21 months--the period between May 1, 2012 (the day after Henson's resignation letter) 

and January 31, 2014 (the date of the trial court's original judgment). 

Trustees appeal from the Judgment, setting forth a single point of error.

The Finality of the Judgment for Purposes of Appeal

"This court has a duty to determine sua sponte whether we have jurisdiction to 

review an appeal." Rocking H Trucking, LLC v. H.B.I.C., LLC, 427 S.W.3d 891, 895 

(Mo. App. W.D. 2014). The right of appeal is purely statutory. Farinella v. Croft, 922 

S.W.2d 755, 756 (Mo. banc 1996). In this case, the right of appeal is controlled by 

Section 512.020 which provides in pertinent part that:

Any party to a suit aggrieved by any judgment of any trial court in any civil 

cause from which an appeal is not prohibited by the constitution, nor 

clearly limited in special statutory proceedings, may take his or her appeal 

to a court having appellate jurisdiction from any:

. . . 

(5) Final judgment in the case or from any special order after final 

judgment in the cause . . .

A special order after final judgment includes "'orders in special proceedings attacking or 

aiding the enforcement of [a] judgment after it has become final in the action in which it 

was rendered.'" State ex rel. Koster v. Cain, 383 S.W.3d 105, 111 (Mo. App. W.D. 2012) 

(quoting GUI, Inc. v. Adams, 978 S.W.2d 515, 517 (Mo. App. W.D. 1998)). 

Though garnishment proceedings aid in the enforcement of a judgment, and are 

thus special proceedings within the ambit of section 512.020, not every order issued in a 

garnishment proceeding is a special order that can be appealed. "Only after a final 
9

judgment is entered in a garnishment action does an appeal lie." Division of Employment 

Security v. Cusumano, 785 S.W.2d 310, 312 (Mo. App. E.D. 1990). The principle that "a 

final, appealable judgment is ordinarily one that disposes of all parties and all the issues 

in the case" is "as applicable to garnishment cases as to others." Orf v. Computer 

Institute, 480 S.W.2d 73, 74 (Mo. App. 1972). "Orders or judgments [in garnishment 

proceedings] which leave some further question or direction for future determination are 

interlocutory and not final and appealable." S.A. v. Jodoin, 861 S.W.2d 810, 813-14 (Mo. 

App. 1993) (citation omitted).

Here, the Judgment was the in rem "pay in" order anticipated by Rule 90.10(b)

resolving a garnishor's exceptions to a garnishee's interrogatory answers. Cusumano, 785 

S.W.2d at 312 (holding that "[g]arnishment is a proceeding in rem that brings within the 

jurisdiction and power of the court a debt or chose in action and impresses it with the lien 

of the judgment in aid of execution"). The Judgment determined whether property was 

subject to garnishment and ordered that property to be paid in to the court within a 

specified time frame. See Rule 90.10(b). The MKD Trustees have not complied with the 

pay in order. Rule 90.10(b) provides that where a garnishee fails to pay in an amount 

ordered following a Rule 90.10(b) trial resolving exceptions to garnishment 

interrogatories, the trial court "may enter judgment against the garnishee."7 Here, the 

 

7The Judgment could be mistaken as an in personam judgment, as it purports to enter judgment against the 

MKD Trustees at the same time it identifies property subject to garnishment and orders that property to be paid in to 

the court. However, a trial court has no authority under Rule 90.10(b) to enter an in personam judgment against a 

garnishee until the garnishee is ordered, and then fails, to abide by an in rem pay in order. Rule 90.10(b). See 

Schlingman v. Reed, 750 S.W.2d 501, 503 (Mo. App. W.D. 1988) (acknowledging that a trial court cannot enter a 

personal judgment against a garnishee before affording a garnishee the opportunity to abide by an interlocutory "pay 

in" order). We thus read the Judgment in conformance with the law as the in rem "pay in" order authorized by Rule 

90.10(b). 
10

trial court has not entered the in personam judgment authorized by Rule 90.10(b) against 

the MKD Trustees. Instead, the MKD Trustees have appealed the in rem pay in order. 

Ordinarily, a Rule 90.10(b) pay in order is an interlocutory order from which no 

appeal can be taken. Hill, Lehnen & Driskill v. Barter Systems, Inc., 707 S.W.2d 484, 

486 (Mo. App. W.D. 1986) ("The order directing the garnishee to pay or deliver the 

garnished funds or property to the court is interlocutory."); Seiter v. Tinsley, 479 S.W.2d 

217, 218 (Mo. App. 1972) (holding that order to pay money into court is an interlocutory 

order required the garnishment rule, and is the "prerequisite to entering a final judgment 

against the garnishee . . . [b]ut it is not a final judgment from which an appeal lies"). The 

MKD Trustees argue, however, that they can appeal the pay in order (and stave off entry 

of an in personam judgment against them) because they attached a bond in the amount of 

$125,000 to their notice of appeal. 

Rule 90.10(b) makes no provision for posting a bond in lieu of abiding by a pay in 

order following resolution of exceptions to garnishee interrogatory answers. It provides, 

in pertinent part, that: 

[T]he court or jury shall determine all controverted issues raised by 

garnishor's exceptions to the garnishee's answers to interrogatories, the 

garnishee's response thereto, and any claim asserted by a third party who 

has intervened. The court shall enter judgment in accordance with the 

findings of the court or jury and shall order any property not previously 

delivered to the officer or the court be delivered to the officer or paid into 

court within such time as the court shall direct. If the property is not 

delivered to the officer or paid into court within such time, the court may

enter judgment against the garnishee for the value of the property. 
11

(Emphasis added.) Though Rule 90.10(b) is silent on the subject of bonds in lieu of 

abiding by pay in orders, section 525.2008provides, in pertinent part, that:

If, upon such trial, [referring to the trial to resolve exceptions to 

garnishments anticipated by Rule 90.10(b)], it shall appear that property . . . 

of the defendant [is] found in the hands of the garnishee, the court or jury 

shall find what property . . . [is] in his hands, and unless he discharge 

himself as provided in section 525.070, by paying or delivering the same to 

the sheriff, or unless he shall, with such time as the court shall direct, as 

provided in section 525.080, pay or deliver up such property, . . . or shall 

execute his bond for the payment or delivery thereof, then the court shall 

enter up judgment against the garnishee for the proper amount or value as 

found in money, and execution may issue forthwith to enforce such 

judgment.

(Emphasis added.) 

At first blush, Rule 90.10(b) appears to be in conflict with Chapter 525.200 as: (a) 

the Rule does not expressly permit the posting of a bond in lieu of delivery of property 

ordered to be paid in following a trial to resolve exceptions;9and (b) the Rule permits,

but does not mandate, the entry of an in personam judgment against a garnishee who fails 

to pay in as ordered. However, any apparent conflict can be resolved by reference to 

section 525.120, which provides that the Supreme Court can prescribe rules relating to 

garnishment procedures "where the same are not prescribed by law." We are thus 

required to read Rule 90.10(b) and section 525.200 in harmony to afford a garnishee the 

 

8All statutory references are to RSMo 2000, as supplemented, unless otherwise noted. Chapter 525 

addresses garnishment and has remained materially unchanged since 1939. Rule 90 in effect prior to 1981 largely 

tracked Chapter 525. There have been three amendments to Rule 90 since then (in 1981, 1988 and 1999). The 

amendments have increasingly strayed from the template of Chapter 525. We have not undertaken to compare 

Chapter 525 to the current version of Rule 90 except as is relevant to the discussion of finality of the Judgment for 

purposes of appeal. 

9Earlier versions of Rule 90 expressly permitted the posting of a bond in lieu of abiding by a pay in order 

issued by the court. See, e.g., Rule 90.07 (in effect prior to 1981) which mirrored the language of section 525.200. 

The current version of Rule 90 permits the posting of a bond, but only where a garnishor has secured a Rule 90.05 

order for "immediate" (i.e. emergent) delivery of property where there is a danger of losing the property unless 

immediate delivery is made. See Rules 90.05, 90.06.
12

option to either abide by a pay in order (as permitted by both Rule 90.10(b) and section 

525.200), or post a bond to insure later payment or delivery of the property subject to 

garnishment (as permitted by section 525.200), and should neither action be taken, then 

an in personam judgment shall be entered against the garnishee (as provided by section 

525.200). 

We conclude, therefore, that if the bond authorized by section 525.200 is posted in 

lieu of abiding by a pay in order, the pay in order becomes a final appealable judgment. 

Our conclusion is in keeping with "[t]he recognized purpose of a supersedeas bond . . . to 

stay the execution of enforcement, pending the appeal, of an order or judgment which 

commands or permits some act to be done, or which is of a nature to be actively enforced 

against the party affected. . . ." In re Marriage of Smith, 721 S.W.2d 782, 784 (Mo. App. 

1986) (citation omitted). In fact, we can conceive of no purpose for permitting a 

garnishee to bond over a pay in obligation unless it is to permit the garnishee to appeal 

the pay in order. Without the ability to file a bond in lieu of abiding by a pay in order, a 

garnishee would be left with but two difficult choices: either discharge the garnishee's 

liability by complying with the pay in order, thus mooting any appeal, (Cusumano, 785 

S.W.2d at 313 (observing that "garnishee [is] discharged from further liability to 

[garnishor] by payment into court of the property garnished . . ."); or ignore the pay in 

order and risk the entry of an in personam judgment enforceable from the garnishee's 

assets, but from which an appeal can be taken. The statutory ability to post a bond in lieu 

of pay in effectively protects the interests of the garnishor while permitting the garnishee 

to appeal the interlocutory in rem pay in order. 
13

We do observe that the MKD Trustees failed to comply with the requirements of 

section 525.080 in posting their bond. Section 525.080.1 provides that the trial court 

"may permit the garnishee to retain [property ordered to be delivered or paid in], upon his 

or her executing a bond to the [garnishor], with security, approved by the court . . . ." 

(Emphasis added.) Section 525.080.1 thus plainly renders the ability to post a bond in 

lieu of abiding by a pay in order discretionary with the trial court and requires the trial 

court to approve the amount of and security for the bond. The MKD Trustees unilaterally 

attached a bond to their notice of appeal. They did not secure authorization from the trial 

court to do so in lieu of abiding by the pay in order, and they did not secure trial court 

approval of the amount of or security for the bond. However, the Garnishors have not 

objected to the bond on these or any other bases. The MKD Trustees' noncompliance 

with the technical requirements of section 525.080.1 does not, therefore, affect our 

conclusion that the bond renders the Judgment final for purposes of appeal.

The MKD Trustees' Point Relied On Preserves Nothing For Appellate Review

The MKD Trustees' single point relied on, which contains four subparts, asserts 

only that the trial court erred by denying their motion for summary judgment. 

"Generally, the denial of a motion for summary judgment is not a final judgment that 

may be reviewed on appeal." Herring v. Prudential Prop. & Cas. Ins. Co., 96 S.W. 3d 

893, 894 (Mo. App. W.D. 2002); see also Wilson v. Hungate, 434 S.W.2d 580, 583 (Mo. 

1968) (holding that the denial of a summary judgment motion is interlocutory, and thus 

not a final appealable order). There is a limited exception to this rule. "When the merits 

of that motion . . . are inextricably intertwined with the issues in an appealable summary 
14

judgment in favor of another party, then that denial may be reviewable." Lopez v. 

American Family Mut. Ins. Co., 96 S.W.3d 891, 892 (Mo. App. W.D. 2002). 

The MKD Trustees argue that the Judgment, which not only denied their motion 

for summary judgment, but which also entered judgment in favor of the Garnishors 

"pursuant to Rule 90.10(b)," should be construed as the grant of summary judgment in 

favor of the Garnishors. The MKD Trustees thus ask us to consider their point on appeal 

as falling within the limited exception permitting appellate review of a denied motion for 

summary judgment. 

The MKD Trustees' request is negated by the plain language of the Judgment. The 

Judgment entered judgment in favor of the Garnishors "pursuant to Rule 90.10(b)." The 

Judgment also denied the MKD Trustees' motion for summary judgment and expressly 

lists the summary judgment pleadings considered in connection with that ruling. The 

Judgment makes no reference, however, to a cross-motion for summary judgment filed 

by the Garnishors and does not purport to grant summary judgment in favor of the 

Garnishors, no doubt because the Garnishors never filed a cross-motion for summary 

judgment.

The MKD Trustees nonetheless argue that we should rewrite the Judgment to 

correspond with a Stipulation entered into by the parties. We disagree. At the beginning 

of the December 2, 2013, hearing, the parties informed the trial court that they had 

entered into a Stipulation agreeing to treat Garnishors' suggestions in opposition to the 

MKD Trustees' motion for summary judgment as a cross-motion for summary judgment. 

However, the Garnishors explained that despite the Stipulation, they were reluctant to 
15

presume that the parties had the right to waive the requirements of Rule 74.04 regarding 

the filing of motions for summary judgment. The Garnishors expressed concern that 

notwithstanding the Stipulation, they would not be treated as having filed a cross-motion 

for summary judgment. Thus, the Garnishors advised the trial court that the Stipulation 

also included a provision permitting the introduction of evidence and legal arguments 

during the December 2, 2013, hearing that had not been raised in, nor attached to, any of 

the summary judgment pleadings. Consistent with this Stipulation, the MKD Trustees 

argued during the hearing that even if the obligation to make Mandatory Distributions 

survived merger of the trusts, section 456.5-506 prohibits reaching mandatory 

distributions by garnishment.10 This statute was not raised in the MKD Trustees' 

summary judgment motion as the basis for entering judgment as a matter of law. Also 

consistent with the Stipulation, the trial court admitted deposition testimony presented by 

the Garnishors, though that evidence was not attached to any of the summary judgment 

pleadings. The parties' statements and conduct during the December 2, 2013, hearing 

manifest the intent and expectation that the trial court would use the hearing to resolve

the exceptions filed by the Garnishors to the MKD Trustees' garnishment interrogatory 

answers as required by Rule 90.10(b).

Consistent with this intent, both parties submitted "post-trial briefs" to the trial 

court after the hearing, along with proposed forms of judgment. The MKD Trustees 

included with their filings documents suggesting that possession and control over the 

 

10Section 456.5-506.2 provides that "[w]hether or not a trust contains a spendthrift provision, a creditor or 

assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon 

termination of a trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the 

required distribution." 
16

May Trust Assets had been transferred to the MKD Trustees to the exclusion of Henson 

as of April 30, 2012. Those documents were not introduced into evidence during the 

hearing, and were not attached to any of the summary judgment pleadings. Their 

submission to the trial court for consideration manifests, however, the MKD Trustees' 

expectation that the trial court would be fully resolving the Garnishors' exceptions to their 

interrogatory answers. The trial court thereafter entered its Judgment doing just that. 

The Judgment denied the only motion pending before the trial court (the MKD Trustees' 

motion for summary judgment) and resolved the Garnishors' exceptions to the MKD 

Trustees' interrogatory answers as required by Rule 90.10(b). 

We cannot construe the Judgment to grant an unfiled cross-motion for summary 

judgment. Even were we inclined to do so (which we are not), the Garnishors' 

suggestions in opposition to the MKD Trustees' motion for summary judgment urged 

judgment in favor of the Garnishors on wholly different legal and factual grounds that are 

not inextricably interwoven with the basis for judgment argued in the MKD Trustees' 

motion for summary judgment. The MKD Trustees' motion argued only that the May 

Trust and the MKD Trust merged as of April 30, 2012, and that the May Trust was thus 

to be thereafter administered pursuant to Article V of the Trust Agreement, which only 

permits discretionary distributions that cannot be garnished as a matter of law pursuant to 

section 456.5-504. In response, the Garnishors argued: (i) there was never a merger 

because Henson did not properly resign; and (ii) even if there was a merger, the Grantor 

did not intend that to cease the obligation to make the Mandatory Distributions required 

by the May Trust. Then, in response to these arguments, the MKD Trustees raised new
17

arguments beyond the scope of their motion for summary judgment that: (i) even if 

Henson did not effectively resign, he "failed to act" as of April 30, 2012, an independent 

trigger for merger; and (ii) that section 456.5-507 prohibits reaching mandatory 

distributions by garnishment. This is simply not a case where denial of the MKD 

Trustees' limited motion for summary judgment would lead directly to the conclusion that 

the Garnishors' "cross-motion," (framed by its suggestions in opposition), would be 

correspondingly granted.

Because the MKD Trustees' point relied on only claims error in the denial of their 

motion for summary judgment under circumstances that do not invoke the limited 

exception where an inextricably interwoven cross-motion for summary judgment has 

been granted, the point relied on preserves nothing for appellate review.

This is not a case where we are inclined to exercise our discretion to cure a

material defect in a point relied on by reference to the argument portion of the appellant's

brief. Even were we to rewrite the MKD Trustees' point relied to claim error in the entry 

of judgment following trial in favor of the Garnishors, a claim of error that would be 

subject to a deferential standard of review,

11 we would nonetheless be required to dismiss 

this appeal because the argument portion of the MKD Trustees' Brief fails to challenge 

each ground on which the trial court could have ruled in the Garnishors' favor. City of 

Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590-91 (Mo. App. W.D. 2009) 

 

11On appeal from a judgment in a court-tried case, we view the facts in the light most favorable to the 

judgment. White v. Dir. of Revenue, 321 S.W.3d 298, 302 (Mo. banc 2010). In contrast, we review the grant of 

summary judgment de novo, viewing the record in the light most favorable to the party against whom summary 

judgment has been entered. Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011) (citations 

omitted). In their Brief, the MKD Trustees rely on the standard of review applicable to summary judgment motions, 

further underscoring the defective nature of their point relied on. 
18

(holding that to establish grounds for reversal, an appellant must challenge all grounds on 

which the trial court could have ruled against it); Houston v. Roadway Express, Inc., 133 

S.W.3d 173, 178 (Mo. App. S.D. 2004) (holding that express and implied findings left 

unchallenged on appeal result in waiver of claim of error).

The Judgment did not make findings of fact or conclusions of law, and none were 

requested. Where "neither party requested and the trial court did not make specific 

findings of fact and law, the trial court is assumed to have made findings consistent with 

the judgment issued." Pride v. Lewis, 179 S.W.3d 375, 378 (Mo. App. W.D. 2005). The 

Judgment ordered the MKD Trustees to pay in $105,000, an amount equal to the 

Mandatory Distributions from the May Trust for the period from May, 1, 2012 through 

January 31, 2014. The trial court thus necessarily found that the MKD Trustees had 

"control or custody" of property (the Mandatory Distributions for said period of time) 

"belonging to debtor" (Davis). See Rule 90.02(c). To find that the MKD Trustees had 

"control or custody" of the May Trust Assets, and thus of the Mandatory Distributions,

the trial court had to find either (i) that the May Trust and the MKD Trust merged on 

April 30, 2012 because Henson resigned or "failed to act" as anticipated by Article III, 

Section C of the Trust Agreement, placing the MKD Trustees in control of the merged 

trusts per Article V of the Trust Agreement, or (ii) that Henson's actions on April 30, 

2012 were neither an effective resignation nor failure to act, and that no merger of the 

trusts occurred, though the MKD Trustees have thereafter exercised "control and 

custody" over the May Trust Assets. 
19

Read as generously as the argument portion of their appellate brief could possibly 

permit, the MKD Trustee's point relied on (and its four subparts) claim error in the entry 

of judgment in favor of the Garnishors because: (A) both the May Trust and the MKD

Trust include spendthrift provisions which prohibit execution of trust assets; (B) the 

MKD Trust permits only discretionary distributions that cannot be garnished pursuant to 

section 456.5-504; (C) the May Trust merged into the MKD Trust and ceased to exist on 

April 30, 2012 when Henson resigned, and even if the resignation was ineffective, merger 

was triggered by Henson's failure to act; and (D) the Grantor intended merger of the 

trusts to render all subsequent distributions discretionary. 

Notably missing from these challenges to the Judgment is any claim of error in the 

possible finding that the trusts never merged but that the MKD Trustees nonetheless took 

"custody or control" of the May Trust Assets as of April 30, 2013, though not authorized 

to do so by the Trust Agreement. The failure to challenge this potential ground for the 

trial court's judgment would be fatal to the MKD Trustees' appeal, even were we inclined 

to rewrite the defective point relied on.12 City of Peculiar, 274 S.W.3d at 590-91; 

Houston, 133 S.W.3d at 178.

Moreover, if we assume that the trial court found a merger of the trusts occurred 

on April 30, 2012, then in order to find that Mandatory Distributions due between May 1, 

2012 and January 30, 2014 were subject to garnishment, the trial had to have found both: 

 

12On this point, we note the parties' Stipulation includes a provision that Henson's resignation will be 

deemed effective as of the date of the December 2, 2013, hearing should the trial court find it not to be effective as 

of April 30, 2012. Thus, for garnishments that have been issued since the date of the Judgment, it is no longer in 

dispute that the two trusts "merged" at least as of that date, though the effect of merger on the continuing obligation 

to make the Mandatory Distributions remains in dispute. 
20

(i) that the Grantor did not intend merger of the trusts to extinguish the Mandatory 

Distribution obligation; and (ii) that section 452.5-506 permits garnishment of the 

Mandatory Distributions due during those months notwithstanding the spendthrift 

provision in the Trust Agreement.

13

 The MKD Trustees argue that the Mandatory 

Distributions did not survive merger of the trusts, and that even if they did, they were

subject to a spendthrift provision. However, their appellate brief does not challenge an 

alternative ground supporting the Judgment: that the Mandatory Distributions survived

merger, and that, notwithstanding the spendthrift provision, the distributions due between 

May 1, 2012, and January 30, 2014, were subject to garnishment pursuant to section 

452.5-506 because they were not made within a reasonable period of time. Once again, 

the failure to challenge an alternative ground supporting the Judgment would be fatal to 

the MKD Trustees' appeal, even presuming we were inclined to rewrite the defective 

point relied on. City of Peculiar, 274 S.W.3d at 590-91; Houston, 133 S.W.3d at 178. 

Conclusion

The appeal is dismissed.14

__________________________________

Cynthia L. Martin, Judge

All concur.

 

13Recall that section 452.5-506 permits the attachment of mandatory distributions "[w]hether or not a trust 

contains a spendthrift provision, . . . if the trustee has not made the distribution to the beneficiary within a 

reasonable time after the required distribution." (Emphasis added.)

14The parties filed three motions during this appeal which were taken with the case: (i) Garnishors' motion 

to dismiss on the grounds that the MKD Trustees' point relied on preserved nothing for our review and because of 

other alleged Rule 84 violations; (ii) the MKD Trustees' motion for allowances and for remand to award fees and 

costs; and (iii) MKD Trustees' motion to amend their previous motion for allowances and for remand to award fees 

and costs. The motions are denied as moot in light of our Opinion.