637 S.W.2d 749 | Mo. Ct. App. | 1982
Lead Opinion
This is an original proceeding in habeas corpus. The petitioner made application for the writ after being committed to the Jackson County Jail under an Order of Civil Contempt to pay maintenance pursuant to modification of a divorce decree. This court issued a writ pending a hearing.
WRIT QUASHED.
The primary issue before the court is whether or not petitioner’s willful refusal to pay his maintenance obligation pursuant to a divorce decree entered into in 1972 but modified after the decision in State ex rel. Stanhope v. Pratt, 533 S.W.2d 567, 575 (Mo. banc 1976), subjects him to imprisonment.
Petitioner and his first wife were divorced on September 26, 1972. The amended judgment ordered petitioner to pay $400.00 per month maintenance. At that time, imprisonment for nonpayment of that obligation was still considered violative of the Missouri Constitution’s prohibition against imprisonment for debt. Coughlin v. Ehlert, 39 Mo. 285 (1866). On June 1, 1976,
Thereafter, the former wife made further application for contempt and, after hearing, the circuit court found petitioner in civil contempt for willfully and intentionally disobeying the 1976 court order for maintenance payments. Petitioner was ordered committed to the Jackson County Jail until purged by payment of $2,875.00, and after surrender on January 11, 1982, applied for the present writ, which was issued by this court that same day.
The Dissolution of Marriage Act became effective January 1, 1974. In § 452.345, RSMo 1978,
In quashing this writ, the court is mindful of the rationale of Keltner to avoid imprisonment when such would violate an obligor’s justifiable belief that he would not be so punished. However, the state of law at the time of modification here was such that Stanhope allowed imprisonment for contempt under § 452.345. Moreover, § 452.315(3), also in effect at the time of the modification, provided that § 452.345 applies to modification orders of dissolution decrees effected prior to 1974. Thus, the only question is if petitioner had a justifiable reliance in June of 1976 that a modification order would be treated differently than the original decree under § 452.345.
Petitioner argues that the 1976 modification was merely an “extension” of the original decree and did not change his reliance interests. Petitioner’s argument is contrary to the Missouri law regarding modifications of decree which holds that a modification is not a mere adjunct to the original proceeding but adjudicates new rights based upon new evidence resulting in a new judgment. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328 (1952) (This continues to be the effect of a modification, Nilges v. Nilges, 610 S.W.2d 58, 62 (Mo.App. 1980)).
It is held that a judgment modifying a maintenance decree may, after Stanhope, subject an obligor who has willfully refused to follow that judgment to imprisonment for civil contempt. This holding is bolstered by the language in Keltner that: “the alimony order which appellant failed to comply with was entered as part of the divorce decree on February 8, 1973 and had not been modified subsequent to this court’s decision in Stanhope.” 589 S.W.2d at 239 (emphasis added).
Finally, in oral argument, petitioner stressed that the trial court’s finding of contempt under its inherent power of civil contempt was improper, and contends that the only means of enforcement for refusal to pay a maintenance obligation is pursuant to § 452.345, i.e. a proceeding brought by the prosecuting attorney with the consent of the obligee.
Although Stanhope involved a proceeding under § 452.345, a contemporaneous decision by the court also ruled that trial courts have the inherent authority to adjudicate civil contempt proceedings for failure to make support payments. State ex rel. McCurley v. Hanna, 535 S.W.2d 107, 108[1] (Mo. banc 1976). See also Ex parte Ryan, 607 S.W.2d 888 (Mo.App.1980). Also, in Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), the court notes that civil contempt, for the protection of a party who is benefited by an order, is a means to coerce compliance with that order, and that contempt proceedings under 452.345 are classified as civil contempt.
The writ is quashed and petitioner is remanded to the custody of the Director of Corrections of Jackson County pursuant to the circuit court’s judgment of civil con
SOMERVILLE, C. J., and SHANGLER, PRITCHARD and TURNAGE, JJ., concur.
CLARK, J., concurs in a separate opinion.
KENNEDY, J., dissents.
. The opinion in Stanhope was handed down on March 8, 1976.
. All statutory references are to RSMo 1978.
Concurrence Opinion
concurring.
I concur in the result reached by the majority opinion and I likewise agree that modification of a decree for support in a marriage dissolution case accomplished after the decision in State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976) subjects the obligor, who thereafter willfully defaults, to the potential penalties incident to a finding of civil contempt. I question, however, the sanction given trial courts to exercise inherent contempt powers to coerce payments of support in marriage dissolution cases outside the procedures defined in § 452.345.
It is to be assumed that the legislature and the authors of the model “no fault” laws were aware of that which members of the bar practicing in the field know intimately — that the former partners to a dissolved marriage seldom agree upon anything, least of all the record of credits and allowances against accrued support obligations. Moreover, the attraction to private counsel to enter upon representation of parties in post-dissolution collection proceedings is minimal if not non-existent.
To remedy these latent deficiencies, the legislature provided in § 452.345, first, that the payment record will be that of the circuit clerk because § 452.345 proceedings may not be followed unless the obligee has first arranged for payments to be made to that official. Second, the statute requires the prosecuting attorney to assist the obli-gee and the court by initiating contempt proceedings and following the case to final enforcement. The statute thus operates to minimize the trial court’s time in deciding disputes over payment accounting and provides services of counsel to implement an orderly processing of cases.
Proceedings outside § 452.345 addressed to the inherent power of the trial court and presented by a party to a dissolution case seeking aid in collection of support will frequently involve pro se appearance and will inevitably embroil the trial courts in time consuming wrangles over charges and credits without the benefit of orderly pleadings and records. Judge Bardgett in his concurrence in State ex rel. McCurley v. Hanna, 535 S.W.2d 107, 109 (Mo. banc 1976) notes the efficacy of § 452.345 and observes that he sees no cause to go beyond the procedure which the legislature has provided by statute.
I concur in result here because this court is bound by the holding in State ex rel. McCurley v. Hanna, supra, despite the deficiencies and future problems which that result entails.
. All statutory references are to RSMo 1978.