Carothers v. Carothers
2011 Mo. LEXIS 124
| Mo. | 2011Background
- Pamela Carothers was found in civil contempt for unpaid child support and imprisoned unless purge occurred.
- Record shows no counsel for Pamela and no waiver of right to counsel on the record.
- Judgment of contempt issued January 12, 2010; warrant of commitment stayed until January 25, 2010 and then issued February 1, 2010.
- Pamela filed a first notice of appeal February 11, 2010, which was dismissed as non-final; she later filed a second notice after custody and service events.
- A March 31, 2010 hearing led to Pamela being incarcerated, making the contempt judgment final and appealable.
- The Court held the contempt judgment was not final at first due to lack of enforcement, and reversed the judgment due to improper right-to-counsel procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is a civil contempt judgment final for appeal? | Carothers appealed within 10 days of actual enforcement. | Finality occurs only upon enforcement or when incarceration occurs. | Final and appealable upon actual enforcement (incarceration) or equivalent enforcement. |
| Must the record show waiver of right to counsel in contempt proceedings? | Waiver may be implicit and not required if adequately informed. | Waiver must be knowingly, voluntarily, and intelligently made on the record. | Record must reflect a knowing, voluntary, intelligent waiver; absence requires reversal. |
| Did the circuit court properly inform Pamela of her right to counsel and obtain waiver? | Record shows waiver on December 2009; no issue with counsel. | Waiver argument relies on record; counsel was not clearly waived on the record. | Court erred; did not adequately advise or confirm waiver on the record. |
Key Cases Cited
- In re Marriage of Crow and Gilmore, 103 S.W.3d 778 (Mo. banc 2003) (civil contempt final upon enforcement via actual incarceration or equivalent)
- Emmons v. Emmons, 310 S.W.3d 718 (Mo. App. 2010) (stay of warrant prevents finality; final upon actual incarceration or purge hearing with reissued warrant)
- Eaton v. Bell, 127 S.W.3d 690 (Mo. App. 2004) (stayed contempt order not final; finality requires enforcement)
- Smith v. Pace, 313 S.W.3d 124 (Mo. banc 2010) (review of criminal contempt; habeas context on incarceration)
- Lane v. Family Support Div.-Child Support Enforcement, 313 S.W.3d 182 (Mo. App. 2010) (due process requires informing right to counsel in civil contempt)
- Hunt v. Moreland, 697 S.W.2d 326 (Mo. App. 1985) (appointment of counsel for indigent in contempt proceedings)
- Cheatham v. Cheatham, 101 S.W.3d 305 (Mo. App. 2003) (contempt waiver standard; informed about consequences and trial process)