*1
5fi7
my opinion,
In
appeared
While it
court’s orders.
word “or”
should be
busi-
in the “flower
The
engaged
“and”.
evidence
defendant
as
whether
concerning his
party intentionally
evidence
placed
there was no
himself in posi
ness”
income,
assets,
expenses.
tion
or his
where he could not
with the
words,
evidence from
award
there was no
maintenance
as it became due is
proper
goes
he
trial court could
concluded that
as
to the reason for nonpay
the award.
ment. That
is to
financially
say,
able
it would show
accidental,
to which
has the burden
failure to
when due was not
as
has
regard
negligent,
inability. But,
in that
not been briefed
due to
proof
before
case.
imprison
elect to decide it in this
the court can
payment,
we do not
to coerce
and
I
that in this case where
say
is sufficient to
believe the evidence
must show and the
appeared without counsel and of-
find
defendant
that the party charged the present
ability
himself as a witness that someone
fered
financial
to make the
concerning
him
should have examined
and refuses
do so.
my
See
assets, income, expenses,
Stanhope
etc.
If considered
dissent in State ex rel.
v. Pratt et
plain
84.-
necessary
rely
al.,
error Rule
(Mo.
1976).
We reversing remanding cause, and I at the amount substantial do not in the opinion concur court’s that further time of this decision past ability allows be the pay to basis for For likely will be initiated. proceedings imprisonment, past ability does not af- reason, judicial effi- in the interest ford so perform as to be will ciency, outright we will not reverse jail. released from proceedings may so that remand further plaintiff if so desires.
Accordingly, reversed the cause remanded. DONNELLY,
HENLEY, JJ., FINCH and
concur. Stanley ex STANHOPE, STATE rel.
BARDGETT, J., W. in dis- part concurs Relator, part separate opinion in filed. sents SEILER, J., MORGAN, J., C. concur Stephen PRATT, Judge, Honorable R. part part per separate and dissent in Clay County, Circuit Court of BARDGETT, filed
opinion J. Respondent, BARDGETT, Judge (concurring part dissenting part). holding proceedings concur in I Danforth, Attorney John Honorable C. civil contempt under section 452.345 are Missouri, General Intervenor. and not criminal. I dissent from that No. 59145. opinion says, ordering “Before Supreme courts Missouri, trial should be Court En Banc. financially vinced that the able required payment or that he has make March intentionally contumaciously placed in a so that he himself could (Emphasis with the court’s orders.”
mine.)
W. Norton, Harrison City, Kansas for re- lator. Jr.,
Vincent Igoe, F. Liberty, respon- dent.
Karen Iverson, M. Gen., Atty. Asst. Jef- City, ferson for intervenor.
HOLMAN, Judge. original This is an proceeding prohibi- tion in which relator seeks to prevent re- spondent judge from ordering that he be committed to because of his failure to comply with an order to alimony to his former wife. peti- When the tion was first considered we concluded that the facts were not sufficiently disclosed. This court accordingly entered an order di- recting respondent hearing to hold a take evidence report on certain issues and findings of fact and conclusions of law. Upon consideration findings so filed we issued our provisional rule on November 10, 1975. Because the case involves the constitutionality of Section 452.3451 enact- 1, 1974, ed in effective January attorney general permitted has been to in- tervene in order to defend the constitution- ality thereof. We have concluded that the provisional discharged. rule should be underlying granted case the court a dissolution of marriage of Wanda and Stanley W. Stanhope January granted As a of the decree Wanda was per for maintenance for $350 relator, against payments month to be made to the circuit clerk. He was also payments ordered to make the of about per month on some real estate owned $100 joint Wanda, her mother tenants relator.
From the outset relator failed to make most of monthly payments for mainte- nance. April
On the prosecuting attor- ney filed a motion for contempt, under statutory citations are to V.A.M.S. 1. All alleged thirty-one days in which it after dissolving Decree § delinquent marriage in his petitioner. relator notice why tempt. extent of he should not be to show cause had been $1,100, given, punished prayed relator as to appropriate for an voluntarily *3 Mrs. Carr and her child. “6. That Respondent immediately and [*] [*] undertook [*] [*] responsibility [*] [*] “7. That Mrs. Carr was and is employed 28, 1975, May hearing was held on and A at Krogers as a checker where her annual respondent conclusion at the thereof dollars; income is ten to eleven thousand guilty that he would find relator indicated and that she no support. receives child impose and sentence of 60 Respondent “8. That is and has for over days county jail suspend in the twenty years employed at regularly been subject complying to relator with sentence Navajo Freight Lines as an over-the-road request the court’s orders. At the of rela- driver, currently and is sixth of one hun- attorney delayed respondent entry tor’s dred twenty-seven in seniority. drivers relator give in order to time to prohibition. seek “9. That the term during litiga- tion Respondent regularly employed; the respondent’s We concluded that Navajo there was sufficient work at findings supported by of fact are the evi- problems for him no and he had with the and hence we not set out the dence will availability of work. testimony hearings May heard at the October lieu 1975. In thereof “10. That at time of Dissolution large part findings set out a Marriage, Respondent will was driving regular- Indiana, ly of the as follows: respondent, Indianapolis, conclusions such paying run per time, week at that $506.00 and now Stanley Stanhope “1. That W. was at paying per week. $520.00 of filing Contempt the time the Motion for February, 1975, “11. That Respondent delinquent of maintenance Liberal, Kansas, undertook a ‘run’ to $1,100.00. owed in the amount of to Court order in the amount quent “2. That at the [*] hearing, Stanley Stanhope payments n # of maintenance time sjs of the [*] October was delin- $2,650.00. pursuant [*] form. run is longer and takes more time times pays and to “12. That $450.00 per Liberal week, per week. both the go although out run the terminal three the Indianapolis to Indianapolis per- nn n n n n : sfc “13. That in Respondent March Respondent Stanhope “4. That successfully bid the Liberal run pres- [Mr. respondent ently it, in the trial designated having holds the availability to court] February a Mrs. earn per gross married Carr on week compensation. $450.00 payments Regarding prosecuting attorney maintenance “5. The shall assist provides, part, as follows: “4. If 452.345 person the court on of a behalf entitled to payment, required party fails to make support pro- receive in all by registered clerk or cer- shall send circuit ceedings initiated under this section to en- arrearage mail notice of the to the tified compliance force with the order. obligor. If sum due is not obligated pay sup- “6. If the days to the circuit clerk within ten made port beyond jurisdiction has left or is notice, sending circuit clerk shall after court, prosecuting attorney may in- certify prosecuting the amount to the due proceeding stitute available under shall, attorney. attorney prosecuting the laws of this state enforcement obligee, promptly the consent of support duties of and maintenance.” contempt proceedings initiate obligor. “27. Respondent although could have That Respondent “14. That has un- higher paying run to Indi- dertaken the responsibility maintained of a new wife so. anapolis stepchild, had he chosen to do his new wife contributes greatly family unit. Respondent’s year to date “15. That $11,896.65. pay is gross Respondent “28. That has the ability capacity to earn much in excess of this, $3,679.33 That from has been “16. what he has in fact earned to date in 1975. as follows: deducted FICA Respondent, “29. $ Stanley That W. Stan- Withholding Federal 2,704.23 $ hope, was in a to comply with the Withholding $ 279.16 3,679.33 maintenance order when were or- $ dered and became due. Respondent’s approximate “17. That *4 “30. Respondent, Stanley That W. Stan- weekly year net is for the $230.00 hope, is now position in a $300.00, runs. would be if he made usual but the maintenance order of this Court. earnings Respondent’s annual “18. That $20,000.00. averaged 1973 and 1974 inability “31. That alleged on the part Respondent, Stanley W. Stanhope, date, Respondent in 1975 to “19. That to make maintenance or- thirty-four days employment has missed der of this Court were the result of volun- leave’, although he has been under for ‘sick tary part actions on his with the intention only care once and has been to a doctor’s placing him in a compli- to avoid only three in his life. doctors times ance with the order of this Court. Respon- “20. That in 1975 to date the That include “32. these actions but are ‘per- work has been absent from dent not limited to: absence’ on five business—leave of sonal occasions, totaling thirty-one days. “(a) subsequent marriage and ac- ceptance responsibility for Mrs. Carr Respondent compensat- “21. That is not son; and her to either illness or leave days ed for off due of absence. “(b) bidding maintaining on and a less- er paying job when he capacity had the Respondent is allowed five
“22. That vacation, higher paying to maintain a of which he per year paid weeks job; simulta- compensated work two and be and that has either neously; Respondent “(c) greatly exaggerated amount vacation for applied for all weeks of used personal sickness and leaves without ex- year. this planation totaling over two months out of [*] [*] [*] [*] [*] [*] ten of employable time and thereby re- ducing earnings. paid only Respondent has “24. That maintenance since the Decree of $500.00 Respondent, Stanley “33. That W. Stan- Court, hope, is therefore in of this Court’s Order that the sum of $350.00 and his new wife Respondent That “25. paid monthly to the Clerk of the Circuit joint income in a check- deposit their each Clay County Court of for the of his Bank, Valley Kaw ing account at the wife, Stanhope. former Wanda paid. are all bills incurred both wife is Respondent’s former “26. That waitress, time on a
employed as “CONCLUSIONS OF LAW basis, fifty dollars approximately and earns That she was at the time week.
per Attorney’s Prosecuting in bad “2. That the Mo- presently still is dissolution Respondent’s Contempt pursuant tion for health. non-payment of maintenance and intention Section to commit relator to is void R.S.Mo., proper 452.345 under law. because in I, violation of Art. Sec. Mo. pursuant stitutional and not in violation of Article that since this tion law in the State of “4. That [*] II of the Constitution for the reason to the amended version of dissolu- n Section a case of first n n Missouri, previous R.S.Mo., [*] impression [*] I, follows as a corollary. by law.” The further contention that nonpayment shall be imprisoned portion of Section 452.345 providing for contempt proceedings Const., of fines and provides, is unconstitutional “That penalties debt, except for no imposed person indicated, As regarding case law in Missouri for decision is obligations controlling. is not whether for contempt of a Further, there are who is compelling public policy financially able to reasons which should allow a fails and trial court to refuses to with an order of enforce its orders the court regarding maintenance. of maintenance is in 452.345,
. Pursuant
to Section
violation of the
prohibition
constitutional
Legislature
provide
has seen fit
herein is found to be constitutional
respects.
tion
such contention of
thority to enforce its orders for mainte-
est of the
*5
nance and
tional violation
citations
onment for
that
Court
Court of
as well
[*]
herein,
to enforce
as
R.S.Mo.,
where
general jurisdiction
question relating to a Constitu-
child
the necessity
[*]
debt’,
must be determined
alleging
necessary
support.
in the
[*]
and its
Respondent;
its orders
Respondent’s
marital
as its basis
[*]
are so
implementation
empowering
by contempt
with the au-
vested
[*]
relationship,
and Section
compelling
‘impris-
conten-
[*]
in all
inter-
it.
this State. We think this was
lenged
had some
it may
ed 110
was without authority of law.” Strange as
Each district of the court
rely Coughlin Ehlert,
ey.
is simply an order for
that, “An order for the payment of alimony
did not
In that case
See,
Imprisonment
for debt
basic case
or its
seem,
years ago,
consider the
Ex Parte Kinsolving, 135 Mo.App.
phase
validity
the court in an
although Coughlin was decid-
of the
only,
it has never been chal-
for debt is abolished in
question
reviewed in this court.
and the commitment
question
which relator must
“5. That
S.W. 1068
Dist.1909),
Louis
actions were de-
liberate,
Harrington v. Harrington,
and he has wilfully
Mo.App.
re-
233
failed and
291
(K.C.Dist.1938),
fused to make
S.W.2d
and is
Davis
therefore in
v.
Broughton,
contempt of this
219 (Mo.App.,
Court.
S.W.2d
Sp.
Dist.1964), and Partney
Partney,3
v.
“6.
finding
That a Citation
Respondent
(Mo.App.,
S.W.2d 117
Dist.1969).
St. Louis
to be in
non-payment
of Court for
In those
cases
courts referred to the
maintenance,
such payments
being
great weight
fact that the
authority
was
through the Clerk of the Circuit Court as
Coughlin
contra to
but that
the court of
trustee,
sentencing Respondent
to be
appeals was bound to follow the decisions of
incarcerated for such contempt does not
supreme
court.
constitute
for debt.”
respondent’s
Relator contends that
We
that probably
understand
every state
finding
States,
him in
expressed
except Missouri,
United
application
apparently
that in
3. We note
this case an
and this court
elected not to re-
transfer was made to this
was
court but that
view the
at that
time.
prior to the enactment of Section 452.345
trial courts concluded that such
imprisonment for fail
could be
ruled that
used and a situation
presented
for test-
child
ure to
ing the
validity
Coughlin rule.
Inci-
for debt
violation
dentally,
legislature,
presumed
In view of
prohibition.
the constitutional
Coughlin, by
to have known of
enacting
an assault on
unusual that
is indeed
that it
apparently
section
concluded
this court
made in
has not been
Coughlin
case was not sound and it at least enter-
have been concerned
judges
Trial
long ago.
hope
tained the
that we
longer
would no
following:
Note the
decision.
about
follow it.
light
subject
Some
on the
we were
hearing
petition
“At the
discussing
contained in an article
that sec-
paper,
very
instructive
furnished
tion as
“Contempt
follows:
is available un-
judges of this
of the circuit
prepared by one
only
der the Act
in cases where
courts of
state, collating the decisions of the
ordered to be made to
circuit clerk
question of alimo
on the
jurisdictions
obligor
The proceedings
defaults.
to treat the allowance
all claimed
ny, and
contempt are then
prosecut-
initiated
debt;
a mere
not a
alimony as
ing attorney.
Family
The Missouri Bar
state and one
argument being
our
Committee,
proposed
Law
the Act to
treating it as
stand alone in
other state
legislature,
was aware that Missouri
declining
imprison
debt and in
holding
few states
remains one of the
in a
pay alimony
awarded
for failure
prior support
awards cannot be
proceeding.
weight
Whatever
divorce
contempt proceedings,
enforced in
as im-
elsewhere,
argument
to that
given
Ehlert,
Coughlin
‘debt.’
v.
prisonment for
yielding
precluded
are
Partney,
Partney
39 Mo.
in the case
Supreme
decision
our
Court
hoped,
It was
how-
[Mo.App.].
S.W.2d
Ehlert,
Coughlin
punish by contempt when he husband It many will be noted that of the cases willfully refuses to with an order to comply to the duty refer husband to 259, alimony.” p. 27B § C.J.S. Divorce may maintenance and that he be held in failure with such 368, Phillips,
In Ex Parte Nev. 187 P. 43 perhaps orders. should be stated that that, (1920) the “A debt new Marriage 311 stated Dissolution of law pro- sense used alludes vides that granted Constitution be obligation growing spouse. of a business either 452.335. out And that 574 Risner, Devoy, Mo.App. In Ex Parte 236 Parte 67 Cal. case of Ex
in the (1945) the wife (1921) P.2d 667 an heir was ordered to S.W. 1070 App.2d dwelling for her of a house to a possession was committed deliver alimony pen- husband of a will contest. during pendency to her receiver failure ejectment court. by refused, contending was lite as ordered He dente remedy. His appropriate indicated, of the view that the we are As upheld. was and that is not sound opinion Coughlin appeals cases the court of Coughlin and Taylor, In 335 Mo. 73 S.W.2d longer it should no followed that have (1934) was held that the statutes it court, its making deci- This followed. fraudulently offense to making it a criminal weight of au- sions, never followed funds check in give an insufficient weight just because thority due account does not violate past of a always indepen- been We have authority. provision constitutional in addition of the merits dently convinced Fuller, Ex Parte 330 Mo. case, In this how- considering weight. (1932) petitioner, S.W.2d and all of ever, stands alone where Missouri merchant, consign- radios on had obtained District of Colum- and the the other states the seller he was or- Upon ment. suit view, minds contrary reasonable bia have proceeds from the radios or dered to deliver sound- as to the have serious doubts Upon refusal the sale thereof to a receiver. Although law is not decision. ness of our the court held he was committed. While reasonably simply it is science an exact findings sup- did not the trial court’s correct in its decision Missouri is likely that significant note the port the order it all of the other issue and the instant that, “. . we do not hold statement Therefore, are some- wrong. are courts inability petitioner’s a consideration influenced what inability him if such order would excuse authority. weight voluntary act in of his own was the result Coughlin case Considering specifically money with the intention disposing of the or did not mention the court we note to avoid placing himself in a factors that many particular consider words, with the order. In other compliance payment of mainte- an order for distinguish found, on substantial evi- if the court had ordinary from an child nance or dence, petitioner proceeds had the merely the court Without discussion debt. property in his the sale of since was a debt and stated that his control at the time the order under prohibited for debt directing him to deliver same to the receiv- Also, Rob- discharged. should be made, money er was or that he so held the Stoner, (1853), only 18 Mo. erts order, making but dis- prior not, opin- does in our Coughlin case cited anticipation it in posed of or converted Moreover, we ion, support the decision. compliance to avoid there- order and analogous deci- subsequent somewhat think with, finding of facts would have such a greatly appellate courts have sions of peti- conclusion that the court’s authorized *8 may have evolved that any principle eroded illegally, and contuma- wrongfully, tioner in In re example, For Coughlin. misappropriated, and misapplied, ciously (1898), at a 46 151 144 Mo. S.W. Knaup, use, own same to his converted it the debtor of judgment examination post Fowler, Mo.App. Parte Ex of certain possession that he developed peti- (1925) is a case wherein S.W. he deliver that The court ordered bonds. contempt for fail- was committed for tioner refusal and a receiver bonds to pen- an administrator to turn over to ure contempt. This jail for him to committed $4,512.94 have in he was found to lite dente the constitutional not to violate was held This was held as executor. debt. for imprisonment against provision HENLEY, DONNELLY, JJ., im- prohibition not violate the FINCH and to Likewise, Zeitinger for in prisonment debt. concur. Mitchell, (Mo.1951) ap- it 244 S.W.2d of assets discovery that a in
peared BARDGETT, J., separate dissents in dis- proceeding possess had been found to mon- senting opinion filed. (in
ey estate. The court accordance due an statute) him failure to with a committed SEILER, J., MORGAN, J., and C. dissent money administrator. deliver separate and dissenting opinion concur in held not violate the This was to BARDGETT, J. provision. Davis,
ment for debt
(Mo.1971)
is a
in which
469 S.W.2d
case
BARDGETT, Judge (dissenting).
pro-
was convicted for
to
defendant
failure
I respectfully
from the
dissent
result
vide
children in
violation
reached in this case. We are here con-
jail.
559.353 and was sentenced to
cerned
of all with
order
trial
first
The statute was held
to be unconstitu-
judge
pro-
he
issue
declared
would
unless
violation
provision
tional
in
hibited. The trial court did not set forth
forbids
precise
proposed
terms of its
order nor
It is also of interest
to note that Section
do
parties
pleadings
do so in their
and
454.240,
Reciprocal
as a
the Uniform
judge,
to
say
briefs other than
that
trial
Law, gives
Support
Enforcement of
court,
open
parties
in
advised the
their
for con-
power
punish
court
to
defendant
attorneys
(trial
he
to
judge)
going
that
tempt for violation of
relevant order of
find relator in
court and sen-
provision
While this
has not
court.
sixty
jail.
tence him
days
county
in
been tested
observe that it was enacted
This
sub-
threatened
seems
be the
apparently
in 1959
not been chal-
ject
transcript
of the trial
this case.
lenged.
28,1975,
proceedings May
indicates
if the
judge
circuit
found relator
We have ruled that
trial courts
contempt he would
impose
sentence
empowered
are henceforth
punish
im
sixty
jail
days
suspend imposi-
and would
prisonment
the failure of a
tion
subject
of the sentence
to this relator
person
with orders for
paying the
he
supposed
maintenance as
of maintenance
child
support.
do
living up
to the other orders
connection we
it prudent
say
consider
court.
is a
remedy
rather drastic
cautiously
should be carefully and
exer
Regardless of which
order was that
ordering
cised. Before
trial
issue,
court declared its intent
thing
one
courts should be
convinced that
is clear and that
judge
circuit
financially
able to make
required
was going to sentence
the relator to
payment or that
intentionally
he has
period
punishment
failing
a fixed
contumaciously placed
himself in a
pay the
provision
di-
so that he could not
with the court’s
vorce
past.
decree in the
past
As to
Also,
courts,
we think the
orders.
trial
maintenance,
overdue
there is no
discretion,
the exercise of
sound
re
my
but what
mind
it is
debt
quire
the party seeking
owing
regardless
due and
and this
so
collect by
order make reasonable efforts to
whether the divorce decree used the words
the conventional remedies available before
“judgment”, “order”,
“decree”,
or
all
entering
contempt order.
three. The word “order” is used
at
because
accordingly
We
rule that
the provisional
*9
time
awarding
the
a decree
maintenance is
prohibition
discharged.
rule in
should be
issued, it
to the
looks
future and it is not at
(when
It
entered)
is so ordered.
that
time
a judgment of a
ment in a proceeding
most other
to
owing
as are
discover assets of
then due
sum
the
each date
an estate and
money. But on
ordered confined in
until
awards of
$2,000
auto-
the
paid, it
he delivered
sum
to the
is due and not
of
ad-
maintenance
as
or
by
ministratrix
until otherwise released
then due
matically increases the sum
appellate
order of court. The
court con-
judgment
the
increases.
such
aspects
problem
sidered various
of the
Nevertheless, I
uphold
would
the.consti-
contempt
the use of
compliance
to obtain
afforded
tutionality
contempt powers
of the
court orders or judgments
with
not immedi-
452.345
means
by
special
section
as
here.
the
ately pertinent
say
But
court did
compliance
maintenance or-
obtaining
with
202-203,
at
“but
appears
authority
there
no
contempt pro-
extent
that
the
ders
application
penalty
for the
for failure
against
orders
not
ceedings and
do
offend
to
with the judgment of the court
prohibition
imprison-
the constitutional
to
specific
delivery
property
for
or the val-
ment
thereof, when
finding
ue
there is no
case,
my opinion
In this
is
charged
party
pos-
the same in his
has
contempt proceedings and the threatened
judgment
session or control.
un-
If such
do offend
the constitutional
der the conditions
last described
imprisonment for debt.
prohibition to
all,
force or effect at
we do not here
Teefey,
Teefey
the related case of
determine,
be,
most,
it would
mere
at
(Mo.
1976), of this
banc
533 S.W.2d
debt,
judgment
for the default of
date,
contempt
is
this
holds that
contempt
apply.
no
could
imprisonment
contempt.
civil
not criminal
to be
to
en-
purports
If it
be
court’s con
holding
is based
That
by
forced
attachment and
under section
proceedings
clusion
contempt, then
essential ele-
it lacks an
are for the benefit
so, namely
finding
to make it
ment
I agree
to collect maintenance.
entitled
present possession or control.”
most,
452.345 are
that,
proceedings under
at
Hutton,
true that
in White v.
contempt. Section
and not criminal
civil
required
party charged
statute
the discretion
452.345(4) clearly leaves it to
in his
his
“has them
or under
as to
recipient
the maintenance
control”,
spe-
and section 452.345 does not
contempt pro
not
to initiate
whether
element must
cifically
provide.
so
But that
therefore, are
proceedings,
ceedings. These
civil
read into section 452.345 if this is
be
but
of the court
dignity
to vindicate
obvious-
or else
collection
solely
effectuate
rather
compliance
would not be
coerce
ly
maintenance.
simply punish
past
failure
rather
the contemnor
contempt,
civil
Being
that,
submit,
I
pay and
would be
cited,
able to
must,
the time he is
at
pure
simple.
for debt
doing
contempt by
himself of
purge
within
there
case the
received
act that
then and
In this
evidence
of some
He
court on
was that
ability
perform.
trial
October
power
his
func-
joint
as the
relator
in a
account
key
jailhouse,
had
bank
$68
hold
is to coerce
wife.
was also substan-
type
present
There
tion of this
satisfies
had
petitioner
of an act which act
tial evidence
earned
doing
previous
to convict
sev-
per
the court.
In order
about
week over
order of
$450
months,
necessary
that the
as well as evidence of
contempt, it
eral
civil
comply.
petitioner,
White
financial needs
temnor
wife,
(Mo.App.1951). wife,
and that on
Hutton,
and his former
240 S.W.2d
delinquent
corpus
petitioner was
a habeas
October
v. Hutton was
White
in the amount
adjudged in con-
who
been
$2,650.
nothing in the record to
judg-
with a
failing
There
tempt
*10
petitioner
$2,650
show that
produced
as of the
paycheck
petitioner would re
date the court threatened to
him.
imprison
ceive
day.
The amount of that check
28,
There
hearing
May
was
earlier
on
is not shown in the record
evidence
petitioner
at which time
was delin-
petitioner’s
was that
paycheck
last
was for
$1,100.
quent
in the amount of
There is
a net amount of
Had the court
$831.95.
$1,100
nothing in the record to show he had
so,
seen fit
to do
it could have ordered
as of the date the circuit court first threat-
petitioner to
paycheck
endorse that
imprison
ened to
him.
present
in court over to his former wife
or made an order directing petitioner
28, 1975,
court on
The trial
October
fol-
immediately pay part of it over to his for
16, 1975,
lowing
hearing
on October
mer wife. That was an act
petition
petitioner
found that
able to
perform just
er could
as in the cases cited in
they
maintenance sums as
became due.
opinion
the principal
where a court ordered
petitioner
The trial court also found that
a party
specific
to do a
act such as deliver
now in a
with the main-
ing
bonds in his
or delivering
tenance order.
I do not know whether this
possession of a house.
In re Knaup, 144
finding
present
refers to an abili-
Mo.
(1898);
At
hearing,
Failing
the October
with the last mentioned
order,
supervisor
trucking company
driver
petitioner was,
August 11, 1919,
for which
works testified.
adjudged
He
of court
pun-
and as
*11
pocket.’
own
He can end the sentence and
that he be confined
ishment it
ordered
payment
any
a certain
himself at
county jail
discharge
by doing
unless
moment
the
in
a what
Failing
payment,
previously
to make
he had
refused to do.”
was made.
from
issued to
sheriff
commitment was
The Nevada court would not have held
discharge.
petitioner sought
which
could release himself from im-
Phillips
knowing
ali-
without
from the
Phillips’s primary
prisonment
was that
contention
do so.
ability
be
record that he had
to
mony
party
is a debt
that a
cannot
Phillips
to mean
then
ability
of a
The That
imprisoned
nonpayment
for
debt.
money
pay
was not
in
had the
refused to
alimony
court held that
a debt
there
but
sense,
ordinary
money
out in
it
If he
not
when
princi-
as set
over.
did
have the
here,
he
pal opinion
jail,
that “The
committed to
then he could not
my
ability
pay,
is not
enforce the
of
release himself. This
to
payment
ment
alone to
opinion,
refer back
an earlier date
money,
punish
but
to
the disobedience
cannot
to
monthly payment
.
when
was due because
party
. .”
ability
simply
could
not func-
earlier
to
holding
contempt,
In
its
as
to
ability
tion
make the
present
as
quoting
Gompers
the Nevada court
jail.
Phillips
regard
and be released from
I
Co.,
418,
Range
Buck’s Stove &
U.S.
finding
contempt
as a
for failure to
797,
at
55 L.Ed.
said
payment of ASSOCIATION FOR EDUCATIONAL DE VELOPMENT, corporation, and Rev. facts, Cough- I On its believe the result Stetson, al., William et as members and right. Apparently Coughlin lin was representatives Opus of a class known as been understood to mean that a court can- *12 Louis, unincorporat Dei Center of St. person obligated by a divorce not order association, ed Plaintiffs-Relators-Re the sum due decree to spondents, money if he has the available to even at the time he is held in and the al., John L. HAYWARD et as members and court so finds. 452.345 now allows comprising alternate members of and the use of civil in domestic rela- Kirkwood, Adjustment City Board of modify Coughlin and I tions cases would ndants-Respondents-Appel Defe that a court can order a and hold lants, a sum due on a maintenance pay over and, award if the then and there has present finances to fails to al., Samuel B. MURPHY et so, imprison do him for a reasonable time or Intervenors-Defendants-Appellants. complies, until he sooner or the No. 58761. legal satisfied means at- such as Supreme Missouri, Court of
taching funds of contemnor. In so do- En Banc. recognizing ing, keys would be that the prison presently be in the pock- March merely et of the contemnor and not giving lip requirement service to that refer-
ence contempt. civil case, proposed order is not
sufficiently specific specific as to what the
basis for the contempt is nor as to what
petitioner must do to obtain his release. But,
is for a period sixty days. fixed importantly,
more the record establishes did not have the
financial to pay means the maintenance due
when the court imprison threatened to him.
Therefore, he did keys not “hold the in his
pocket”. I would therefore make the writ prohibition absolute proposed For
order. these reasons I dissent.