concurring.
As the author of the original divisional opinion affirming the temporary awards, it is appropriate for me to state my reasons, after reconsideration, for concurring in the result of the en banc opinion.
I am unable to construe the cases relied upon by the majority as making mandatory the imposition of sanctions including denial of affirmative relief upon a party invoking the privilege against self-incrimination. Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) involved the refusal of the wife to answer questions relating to the validity of her marriage to husband. *569The burden of establishing a valid marriage was upon the wife who was seeking the divorce. In turn her right to any temporary maintenance was dependent upon the existence of a valid marriage. The court holding was that her refusal to supply evidence concerning the validity of her marriage precluded the court from having facts “that were essential to an intelligent and lawful adjudication of her right either to divorce or to temporary support and suit money.” In short, wife’s invocation of the privilege resulted in the failure to establish an essential element of her right to recover. Dismissal of her claim for temporary awards was required, not as a sanction for refusal to testify, but because without the testimony she had established no claim for relief. The language relied upon by the majority from that opinion was dicta and must be evaluated upon the basis of the actual holding of the court.
The same situation existed in Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 (Mo.1969). There appellant’s cross-claim had been dismissed because appellant refused to answer interrogatories relating to his ownership or right to possession of a tractor. The court stated “[h]ere appellant on his cross-claim is in the position of a plaintiff, having the burden of proof, and could only prevail by proving ownership or right of possession under a lien or other valid claim. He could not recover anything without disclosing the basis for his claim and making proof of it.” l.c. 121.
The remaining cases cited by the majority do no more than state that it is proper to strike pleadings or deny affirmative relief upon invocation of the privilege against self-incrimination. Those cases do not state that such sanctions are mandatory. Here the trial court has, within its discretion, refused to invoke sanctions. Proof of wife’s conduct is in no way a necessary element of her claim for a temporary award. I cannot agree to the proposition that invocation of the privilege against self-incrimination requires as a matter of law the denial of affirmative relief to wife.1
I am also unable to agree with the at least implicit holding of the majority that conduct is a relevant and material consideration in pendente lite proceedings. The doctrine espoused by the majority is applicable where the party invoking the privilege refuses to produce evidence “pertinent to his right to recover.” State ex rel. Pulliam v. Swink, 514 S.W.2d 559 (Mo. banc 1974) [1]. The information sought must be “relevant and material.” Franklin v. Franklin, supra, [11, 12]; Hagenbuch v. Hagenbuch, 730 S.W.2d 269 (Mo.App.1987) [1].
Berbiglia v. Berbiglia, 442 S.W.2d 949 (Mo.App.1969) [1, 2], held that temporary maintenance awards are intended to maintain the status quo, and that marital conduct or misconduct are not properly to be considered in making such awards. The majority opinion declines to address this issue although Footnote 3 appears to cast some doubt on the continuing vitality of Berbiglia in view of Sec. 452.315.5 and 452.335.2(7), RSMo 1986. But in holding that wife must be denied affirmative relief the majority has found that her misconduct is pertinent, material and relevant to her claim for temporary maintenance. To the extent the trial court has allowed and considered such evidence here I do not disagree that we may consider it on appeal. To the extent the majority opinion can be considered a holding that such conduct is material and relevant in pendente lite proceedings generally I must express grave reservations.
Pendente lite proceedings should by definition be brief and should occur early in the litigation before extensive discovery has occurred. The very purpose of temporary awards is to allow a needy spouse to subsist during the pendency of the litigation while he or she goes through the pre-trial procedures, including discovery and preparation, necessary to establish entitlement to permanent maintenance and other substantive matters covered by the dissolution. *570To require litigation of marital misconduct at the pendente lite stage is to destroy the very purpose of temporary maintenance awards. The potential burden on currently overworked trial courts is enormous. I am unable to conclude that the statutes cited were intended to, or should be interpreted to, create chaos.
I believe that misconduct of the party seeking temporary maintenance is not a necessary nor advisable consideration in pendente lite proceedings and such evidence need neither be admitted nor considered by the trial court. To the extent the majority opinion holds the contrary, I respectfully disagree.
That said, I must concede that here the trial court not only admitted such evidence but also considered it. Given our accepted principles and scope of review, the facts before us present a hard case and hard cases make bad law. The result arrived at by the majority is eminently just and equitable. The evidence considered and credited by the trial court supports its conclusion that wife was guilty of misconduct. That misconduct was egregious consisting of an attempt to commit the most serious crime in our state criminal code — deliberate, premeditated murder. And that attempt was directed against her partner in the marriage from whom she now seeks support during the pendency of the litigation. Justice and equity must condemn a result which allows her to gain such support.
We are closely constrained in our scope of review by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Given the strictness with which we have consistently applied that case I have difficulty saying here that any of the four tests for reversal enunciated there are present. Essentially it appears to me that the trial court in evaluating the evidence before it has made a judgment call which does not comport with justice, equity or common sense. Our rules of appellate review, including Murphy v. Carron, have evolved over many years and are, in the vast majority of cases, highly effective in properly resolving issues presented to appellate courts. As with any man-made rules they are not perfect and on very rare occasions cases will come before us where strict application of those rules will cause a result at war with acceptable human standards and expectations. Rather than create what I regard as bad law which will impact upon the multitude of cases in which the rules and procedures function properly and effectively I would prefer to say that the case before us is sui generis and that the constraints of Murphy v. Carron do not preclude us from reversing the trial court’s judgment as clearly inequitable and unjust. On that basis I concur in the result.
. I would doubt for example that if the parties had obtained mutual criminal assault charges against each other that wife would automatically be denied temporary maintenance if she invoked the privilege and husband did also.