683 S.W.2d 270 | Mo. Ct. App. | 1984
Petitioner Gary L. Foster was confined for civil contempt arising from his failure to pay child support, maintenance, and attorney fees as ordered in a divorce decree. On his petition, we issued a Writ of Habeas Corpus, which we made absolute, ordering petitioner’s discharged from confinement. We state our reasons in this opinion.
On August 2, 1984, a hearing was held on Dyan (Foster) Brooke’s motion to hold petitioner in contempt. At that hearing petitioner was ruled indigent and counsel was appointed to represent him. Thereafter, on the same day, a hearing was held and petitioner was adjudged in contempt of court for failure to make the payments as ordered in the decree. He was ordered confined until he purged himself of contempt by either payment of the full amount owed or presentation of a plan for payment of this amount.
This was an order of committment for civil contempt. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976). On imprisonment for civil contempt, the con-temnor in a sense has the key to his cell in his pocket, Brown v. Brown, 646 S.W.2d 888, 889 (Mo.App.1983); he can secure his release by purging himself of contempt in whatever manner is specified in the order. The contemnor must have the ability to purge himself of his contempt to justify imprisonment for civil contempt. Huber v. Huber, 649 S.W.2d 955, 958 (Mo.App.1983); Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970).
In the present matter, petitioner, who is unemployed and not overendowed with assets, was found to be indigent and a