Lead Opinion
Jоhn Mitalovich, Father, appeals from the trial court’s judgment of June 8, 2006, ordering him to pay attorneys’ fees of $1,500 as a sanctiоn. We affirm.
The present action stems from motions to modify a paternity judgment, filed in 2004, by Father, John Mitalovich, and Mother, Tammy Lee Toomey. In February of 2006, the trial court entered its second-amended judgment, which Father then appealed.
Mother’s motion was called for hearing on April 27, 2006, on the non-testimonial docket. Counsel for both Father and Mother appeared. Fаther’s counsel, however, claimed that testimony was required. The court granted the parties until June 8, 2006, to submit legal authority on whethеr testimony was required. The court then set Mother’s motion for hearing on June 8th. On May 9th, Father’s counsel filed a motion to continue thе June 8th hearing, asserting that Father had previously made plans to be out of town with the parties’ minor child from June 6th — June 18th, as part оf his summer custody. Father’s motion was never ruled upon.
On June 8th, Mother’s motion for attorneys’ fees on appeal was called for hearing, as previously scheduled by court order. Mother’s counsel announced ready for trial. Father failed to aрpear and his counsel announced not ready. Father’s counsel requested a continuance, and Mother’s counsel objected. The court continued the case over Mother’s objections, and rescheduled the hearing for August 10, 2006, with one аnd one-half hours reserved for the hearing. The court then ordered “attorney’s fees as sanctions against Plaintiff [Father], ovеr the objection of Plaintiffs counsel, in the amount of $1,500.” Father now appeals.
Discussion
Father complains of two distinct alleged trial-court errors. First, he contends that the trial court’s order was an award of attorneys’ fees under Section 452.355 RSMo., which could not be entered without evidence of the parties’ financial resources. Second, Father contends that the sanсtions were arbitrary, punitive, and entered without a hearing on the matter to determine the appropriate amount оf the sanction. We discuss each contention in turn,
Father first contends the trial court misapplied the law in ordering an award оf attorneys’ fees without any evidence of the parties’ financial resources. Father’s argument proceeds from the premise that the court was awarding attorneys’ fees pursuant to Section 452.355. But there is no reason to accept thе premise of Father’s argument. The court does not cite Section 452.355 in its award, nor is there any reason to interpret the award as having been made pursuant to Section 452.355. We conclude the award of attorneys’ fees was imposed as a sаnction for two compelling reasons: first, the award was made because of Father’s transgression in failing to appeаr for a hearing, which failing occasioned expenses of effort and money by Mother; second; the court unequivocally denominated it a “sanction” in its order imposing the award.
A trial court has a broad array of inherent powers. McPherson v. U.S. Physicians Mutual Risk Retention Group,
Next, Father complains that the trial court imposed sanctions without a hearing. Father suggests the trial court must have an evidentiary basis for its award of attornеys’ fees as a sanction.
The judgment is affirmed.
Notes
. All motions are denied.
. This Court issued its decision in connection with that appeal, in November of 2006. Mita
Dissenting Opinion
dissenting.
I dissent. I find no authority by constitution, by statute, by rule or by “inherent authority” to take John’s money and give it to Tammy. There is no factual basis in this rеcord to accomplish this result, and thus, the result is unprincipled.
This case reflects an all too common phenomenon in the domestic area — lack of civility. Simply, neither counsel would extend one to the other even modest professional courtesy. Counsel for Appellant gave Respondent’s counsel more than thirty days notice of client unavailability; and gave the commissioner twenty-nine days notice by a formal filing — which motion was never ruled by the commissioner.
My review finds no evidenсe that the $1,500 fee was reasonable, necessary, or justified. The record is silent as to any time-spent basis for this fee — no bill, no affidavit, not even the ever useful “counsel how much time do you have in this today?” The commissioner’s action was arbitrary and capricious, to affirm is thus arbitrary and capricious.
Appellant's counsel complained loudly and long, both below and hеre, as to the arbitrary nature of the action. We have an obligation, and jurisdiction, to resolve this complaint.
There bеing no constitutional, statutory, nor rule applied by the commissioner, the majority relies on case authority. The two casеs cited are factually inappropriate. Foster v. Kohm,
This is not contempt, a receivership, a discovery violation, nor a mоtion to set aside a default judgment. Mouthing “sanctions” is not a panacea for evidence. This case should be reversed.